The Constitutional Court found No 40 / 2023 Coll.
The Constitutional Court found of 17 January 2023 sp. zn.
Valid
40
FIND
The Constitutional Court
On behalf of the Republic
On 17 January 2023, the Constitutional Court decided under sp. zn.
as follows:
Motion denied.
Reasons
Recital of the procedure before the appellant
1. By a proposal of 6 May 2021, submitted pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the Municipal Court in Prague seeks the annulment of § 73 (7) of Act No. 372 / 2011 Coll., on health services and the conditions for their provision (the Act on Health Services), as amended (hereinafter referred to as the "ZSS").
2. The applicant submits that, under sp. zn. 14 A 95 / 2020, the action against the decision of the Ministry of Health No 30091 / 2020-3 / PRO of 31 July 2020 is pending. On the factual background of the present case, the appellant stated that, by its submission of 17.5.2020, supplemented on 28.5.2020, the applicant requested, with explicit reference to § 6 (2) of Act No. 106 / 1999 Coll., on free access to information, as amended, (hereinafter referred to as "InfZ 'or" Information Act'), the Institute of Health Information and Statistics of the Czech Republic (hereinafter referred to as "the compulsory body 'or" INZIS') to provide directly information concerning the statistical number of deaths of persons for the years 2014, 2015, 2016, 2017, 2018 and 2019 (for each year separately) to specific causes, in the request for a specified cause.
3. By communication No .j. UZIS / 031661-1 / 2020 of 5.6.2020, the compulsory body first provided the applicant with the following reply: "The structure of the National Health Information System (hereinafter referred to as NZIS '), which is the data source for your requested information, is laid down by the Law on Health Services in its § 70- 78, Decree of the Ministry of Health No. 373 / 2016 Coll., on the transmission of data to the National Health Information System (hereinafter referred to as" NZIS'), and is available publicly on the website of the Czech Republic on the following link: https: / / www.@-@ uzisec.php? pg = nzis. "In conclusion, the compulsory body indicated that, on the basis of Article 73 (8) of the SIS, data from national health registers may be requested for statistical and scientific purposes, provided that the application is made on a form available to the applicant on the websites referred to. Subsequently, the compulsory body issued Decision No .UZIS / 031661-2 / 2020 of 5.6.2020 to which the applicant's request to provide the requested information was rejected pursuant to § 15 (1) in conjunction with § 2 (3) InfZ and § 73 (7) of the ZZS. In his reasoning, he stated that the provision of information from the National Health Information System was governed by the provisions of Section 73 (7) of the ZSS, which is why only the data structure was provided to the applicant. For this reason, the compulsory body rejected the applicant's request. At the end of his decision, the applicant repeatedly informed of the possibility of providing information pursuant to Paragraph 73 (8) of the OCT.
4. For the appeal of the applicant against the decision of the compulsory body to reject the request for information by the Ministry of Health mentioned above partly amended the contested decision of the compulsory body by deleting the reference to the provisions of Section 2 (3) of the InfZ in its operative part. The rest was confirmed by the withdrawal of the decision of the compulsory body concerned. The Ministry stated that the request for information could also be rejected on the grounds set out in the Special Act, if it expressly sets out the conditions for not providing information. This is also the case in the case of Section 73 (7) of the ZZS. According to the Ministry, the legal provision in question can be considered as a specific reason for refusing the request for information. Thus, the compulsory body had no choice but to reject the request for information, as it is obliged under Paragraph 2 (1) of the Administrative Regulation to comply with the laws.
5. The claimant then challenged the decision of the Ministry of Health as an appeal authority by an action in which, inter alia, he questioned the necessity of restricting the right of free access to information. On the contrary, in its observations on the action, the Ministry of Health took the view that Section 73 (7) of the ZZS was in line with the constitutional order.
Arguments of the appellant
6. The appellant considers that Paragraph 73 (7) of the ZZS is contrary to the constitutional order. In the case of the contested provision, the legislature considers that the restriction of the right of free access to information is a legitimate objective, first of all, of the fact that, in the event of such disclosure, complete information would not be offered to the applicant. However, in the appellant's view, the objective of limiting information rights thus declared can hardly be accepted and subdivided under any of the categories of legitimate objectives referred to in Article 17 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). If the purpose of the health registers is, inter alia, to collect information to assess the health status of the population and its development, to monitor the incidence, circumstances and spread of socially serious diseases and their consequences, data in the registers may be expected to be of a complex nature. If comprehensive information could not be obtained from the National Health Information System, the very purpose of the system's management would be denied.
7. The applicant further contested that the legitimate objective of limiting the right of access to information could be considered to be the fact that the export of selected parameters in epidemiological registers may lead to misleading health information or raise unnecessary concerns for a layman. It is not clear to the appellant in what sense the disclosure of the requested information could be misleading. If there is no confusion in the system of registered registers, it should certainly not be misleading either. In the applicant's view, possible data misinterpretation can be obtained by any accompanying comment. According to the applicant, the Statistical Institute has at its disposal such means as to clarify any inaccuracies or misleading information. Therefore, the absolute denial of the right to free access to information for this reason will not stand. The applicant also pointed out that by providing information from registers, the data collected would be checked by the wider public, which could result in an overall improvement of the system thus managed. The company's access to general information on health data is, according to the applicant, desirable because, in this regard, interpretation of the information obtained may lead to adequate attention to certain health risks and thus to a greater protection of public health than to the abuse of the data obtained and to panic.
8. The appellant admitted that the legitimate objective of restricting the right to free access to information could be to consider the protection of the rights and freedoms of others, in particular the privacy of individuals. As far as possible, the effective protection of the data collected in the registers concerned, as they are extremely sensitive, does not constitute a ban on the provision of any information under the Freedom of Information Act to that end. According to the appellant, this can be achieved in other, milder ways. Protection in this respect is provided in particular by Article 73 (8) of the SIS, which requires that data be provided only in a form from which a specific natural or legal person cannot be identified. In addition, the applicant sought the statistics of deaths for the years 2014 to 2019, the cause of which was a specific disease or use of certain substances. By providing these statistics, the applicant would certainly not be threatened by any sensitive personal data, let alone individual patients' privacy. This argument was more detailed in the proposal.
Observation of the parties and the intervener
9. The Constitutional Court, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), sent the motion to the Chamber of Deputies and the Senate, acting on behalf of the party, as well as to the Government and the Ombudsman, who are entitled to intervene as interveners.
10. On behalf of the Chamber of Deputies, the President of the Chamber of Deputies, who stated that the draft Act No. 111 / 2019 Coll., which introduced the contested provision into the Health Services Act, was submitted by the Government. In that context, he described the procedure for approving the draft law, including amendments, and stated that the rule of law had been adopted and declared on the basis of a proper procedure, and that it was up to the Constitutional Court to examine the question of the unlawful nature of the contested provision and to decide on its application for annulment.
11. The Senate was expressed by its President, who also described the process of approving draft Act No. 111 / 2019 Coll. In doing so, he focused more on discussing the bill in the Senate and stated that there had been a rather broad discussion on its soil, which did not concern the directly contested provision, but the criticism was submitted to the amendment of the bill in the Chamber of Deputies on precisely the amendment of the Health Services Act containing the proposed provisions, which was not originally part of the government bill. The criticism was mainly related to the failure to discuss the part concerning the Health Services Act with the Ministry of Health and the Ministry of the Interior, i.e. the ministries, which should comment on the correctness of the proposed treatment of health data. After the debate, the Senate adopted a resolution returning the bill to the Chamber of Deputies with amendments. However, the Chamber of Deputies did not approve the bill as approved by the Senate and adopted the bill as referred to the Senate. Finally, the President of the Senate pointed out that it was entirely up to the Constitutional Court to examine the proposal and decide on it.
12. In its rather extensive statement, the Government proposed that the Constitutional Court reject the application for annulment of the contested legislative provision. The initial focus was on the role and role of the SAA in public administration, in particular in the area of the administration of the National Health Information System (NZIS) and the related issues of the protection of collected data. It also described the application practice of the UZIS when handling applications submitted under the Freedom of Information Act. In that connection, it stated that expert applicants for data transmission from registers are, in the vast majority of cases, informed that it is necessary to follow the provisions of the Health Services Act when applying for such data. On the contrary, in their requests, lay applicants make use of a procedure under the Freedom of Information Act. In each individual case where the applicant applies for data from registers under the Freedom of Access to Information Act, in addition to providing information on the structure of the data under the contested provision, a decision on partial refusal of the application pursuant to § 15 (1) InfZ in conjunction with § 73 (7) of the ZZS is also issued. However, according to the Government, partial refusal always contains information on the possibility of submitting a request for data pursuant to Section 73 (8) of the OSS. Some applicants then make use of this option and then receive the answers to their questions properly processed.
13. The Government also referred to the relevant amendment as grounds for which the right to information from the NZIS was limited. As a primary reason for which the legislature's legislation was approved, the Government identified requests for the provision of addressed extracts from the content of NZIS registries for a specific natural or legal person. However, it also pointed out the possible security risks of providing information, since, if the information were not in a proper context, it could allegedly be very easy (both unknowingly and intentionally) to misinterpret data and various, as well as completely contradictory interpretations, which may have unforeseeable consequences. Examples include influencing the decision of patients with severe cancer in relation to early life-saving performance, etc.
14. The Government also justified the need to maintain the contested legislation by the right to health protection, the possibility of obtaining much more complete and correct primary data, as well as the possibility of causing unnecessary concerns for a layman who could be caused by possible misleading health information that could result from the export of selected data from epidemiological registers. The risk is also seen by the government in the possible error rate of records caused by data exports from providers or in the unethical interpretation of the required information.
15. The Government stressed the usefulness of the contested provision, which should have been reflected in particular during the period of the Covidia-19 pandemic when the applications submitted under InfZ increased from 12 to 79. During this period, it appeared that applications of this type were made at the ÚZIS in the vast majority of the laice, and it was shown that the applicants did not understand the issue they were asking.
16. According to the Government, the repeal of the contested provision would cause a number of problems, as well as the exclusion of the standard operation of the ÚZIS, since the ÚZIS does not have a mandate or personnel equipment to provide data to the complete lay and within the time limits of the InfZ. In order to explain the information provided under InfZ, it would be necessary to strengthen the personnel system, as only one person is now performing this agenda, but not as their primary agenda. In the event of the repeal of the provision under consideration, the massive submission of requests for information under the Freedom of Information Act could be used as a means of attacking the health department with the intention of overloading the personnel capacity of the SAA and preventing standard operation. The risks from the point of view of cyber security must also be taken into account, as it must be ensured that the required information under the Freedom of Information Act does not compromise the security of the information systems of the UZIS and the Ministry of Health.
17. The Government took the view that the current practice of providing information from the NZIS does not restrict any relevant and legitimate request, in particular the provision of aggregated data and statistics, the provision of processed data and analyses, or the provision of primary data, if there is no direct or indirect identification of the person. The only reason for refusing the application is allegedly the absence of the required data and information in all the above cases and is also informally communicated with the applicant in order to find a solution, for example, by choosing a different parameter. The Government reiterated that the problem for which the legislation in question was approved by the legislators is only requests to provide addressed extracts from the content of NZIS registries to a specific natural or legal person.
18. The Ombudsman stated that he would not exercise his right under Paragraph 69 (3) of the Constitutional Court Act and therefore would not intervene in the proceedings.
19. The observations of the parties and the intervener were sent to the appellant for a possible reply which the appellant had not used.
20. The Constitutional Court has not ordered oral proceedings under Paragraph 44 of the Law on the Constitutional Court, since it would in no way contribute to a further or more profound clarification of the case than as it has read in the written acts of the applicant, the party and the intervener. The fact that the Constitutional Court does not consider it necessary to carry out the taking of evidence also justifies the failure of oral proceedings. Neither the parties nor the intervener requested the oral hearing to be held.
Conditions of substantive assessment of the proposal and active legitimacy
21. Before the Constitutional Court makes a substantive assessment of the application, it is required to examine whether the application has been lodged by a legitimate appellant. Under Article 95 (2) of the Constitution, Article 64 (3) of the Law on the Constitutional Court, the active legitimacy of the Court of First Instance for the application to review the constitutionality of the specific provisions of the Law is given only if it concludes that the law (or part thereof) to be applied in the resolution of the case is contrary to the constitutional order.
22. The Constitutional Court has repeatedly stated in its decision-making practice that the Court's active legitimacy to file a motion for annulment of the law or part of it depends on the subject matter of the dispute and legal qualifications. The Court of First Instance may, therefore, apply for annulment only of such a law (or its sub-provisions), which is to be used directly (immediately) in dealing with a particular case. The consideration of such application must be justified, derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the parties, and if it is a substantive rule, from the unambiguous finding that the regulation is to be applied [see, for example, the finding of sp. zn. It is therefore a law that impedes the achievement of a desirable (constitutional) outcome. If it was not removed, the outcome of the present proceedings would be different. This means that it must be a law the use of which is unavoidable in the circumstances of the court. It is not sufficient only the hypothetical possibility of using it or the broader context of the case with such a law [cf. point 32 of the sp. zn. Pl. ÚS 34 / 10 of 24.7.2012 (N 130 / 66 of SbNU 19; 284 / 2012 Coll.)].
23. The Constitutional Court considers the conditions outlined above in the present case to be met, since the contested legal provision is linked to the applicant's decision-making activity and is to be used in the resolution of the case. Moreover, the contested legislation is based on both the decision of the compulsory body and the decision of the Ministry of Health challenged by an administrative action. In this context, it can be concluded that the conditions laid down in Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court have been met, in which case the court may submit a motion to the Constitutional Court for annulment of the law, which is why the application for annulment of the contested provision has been made by a legitimate appellant.
24. Article 68 (1) of the Law on the Constitutional Court states that, if the application has not been rejected and there are no grounds for termination of proceedings in the course of proceedings, the Constitutional Court is obliged to discuss the application and decide on it without further proposals. For this type of procedure before the Constitutional Court, the principle of formal [cf. point 50 of the sp. zn. The Constitutional Court is competent to discuss this [Article 87 (1) (a) in conjunction with Article 95 (2) of the Constitution]. The proposal also contains all the legal requirements required and is admissible within the meaning of Section 66 of the Constitutional Court Act. At the same time, none of the grounds for the termination of proceedings under Section 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
25. The Constitutional Court also examined whether the proposal was admissible under Article 35 (1) of the Constitutional Court Act, i.e. whether it did not concern a case which the Constitutional Court had already ruled on.
26. The Constitutional Court examined the application for annulment of Sections 70 to 78 of the Law on Health Services, including the now contested provision § 73 (7) of the same Act, already in the proceedings under the sp. zn. By letter dated 10 November 2020 (6 / 2021 Coll.), the application for annulment of these provisions was rejected. Although the now contested legal provision was found to be consistent with the constitutional order, among other things, the Constitutional Court addressed the question of the constitutional conformity of all the provisions at the time, only from the point of view of the protection of the constitutionally guaranteed right of protection against the unlawful collection, publication or other misuse of data on its person under Article 10 (3) of the Charter, the right to engage in other economic activities under Article 26 (1) of the Charter and the right to judicial protection under Article 36 (1) and (2) of the Charter. However, the appellant contends that the contested legal provision is contrary to the right of free access to information under Article 17 (4) of the Charter. However, the Constitutional Court did not consider the application made in the case sp. zn. Pl. ÚS 33 / 16 as an option to guarantee free search and receive information. The adoption of the finding, sp. zn.
Text of the contested legal provision
27. Paragraph 73 (7) of the ZZS, including the footnote reference, reads as follows:
"The Statistical Institute shall, on request under the Freedom of Information Act (61), provide only information on the structure of the data in the National Health Information System. '
28. footnote 61 reads as follows:
"Act No. 106 / 1999 Coll., on Free Access to Information, as amended. '
Assessment of the competence and the way in which the contested legal provisions are adopted
29. The Constitutional Court is obliged, in accordance with Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., to assess whether the contested law (or its provision) has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
30. The contested provision was inserted into the Act on Health Services by Act No. 111 / 2019 Coll., amending certain laws in connection with the adoption of the law on the processing of personal data. The Constitutional Court has already dealt with the manner in which this Act was adopted in the above-mentioned decision of the sp. zn. In the details, the reasoning for the finding can be fully referred to (see in particular paragraphs 113, 115, 121 and 125).
A substantive review of the contested provision
31. The Constitutional Court considered the arguments of the applicant, the party and the intervener and concluded that the application was not justified.
General considerations
32. Under Article 17 of the Charter: "Freedom of expression and the right to information is guaranteed" (paragraph 1). "Everyone has the right to express his views in words, letters, print, image or in any other way, as well as to freely seek, receive and disseminate ideas and information, irrespective of national borders" (paragraph 2). "State and local authorities shall provide adequate information on their activities. The conditions and implementation shall be laid down by law '(paragraph 5).
33. Limit freedom of expression and the right to seek and disseminate information may be determined in accordance with Article 17 (4) Charter only by law, at the same time it must be measures in a democratic society necessary to protect the rights and freedoms of others, the security of the state, public security, the protection of public health and morality.
34. Similarly, Article 10 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') provides that" everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and disseminate information or ideas without interference by state authorities and regardless of borders'.
35. Pursuant to Article 10 (2) of the Convention, "the exercise of those freedoms, as it includes both obligations and responsibilities, may be subject to the formalities, conditions, restrictions or penalties provided for by law and necessary in a democratic society in the interests of national security, territorial integrity or public security, the prevention of unrest and crime, the protection of health or morale, the protection of reputation or the rights of others, the prevention of the leak of confidential information or the maintenance of the authority and impartiality of judicial authority '.
36. In other words, any interference with the rights under Article 17 of the Charter and Article 10 (1) of the Convention, unless provided for by law, will not pursue the legitimate objective enshrined in those provisions and will not be necessary in a democratic society to achieve those objectives, will be a violation of the requirements laid down in Article 17 (4) of the Charter and Article 10 (2) of the Convention.
37. At the level of sub-constitutional law, the same is then expressed in Section 12 of the Freedom of Access to Information Act, according to which "all restrictions on the right to information shall be implemented by the compulsory body by providing the required information, including accompanying information, after the exclusion of the information provided for by the law. The right to refuse information shall be valid only for a period of time for which the reason for the refusal persists. In justified cases, the compulsory body shall verify that the ground of refusal persists'.
38. The Constitutional Court has previously stated that "freedom of expression - including under Article 10 (1) of the Convention on Freedom of Information - is one of the most important foundations of democratic society '(cf. the finding of 30 March 2010 sp. zn. Pl. ÚS 2 / 10; all case law of the present court is available at https: / / nalus.ujud.cz).
39. The Constitutional Court, in its decision in sp. zn. This fundamental right and its corresponding obligation of a public authority constitute one of the key elements of the relationship between the State and the individual. Its purpose is the participation of civil society in public matters, i.e. through this information the public can control the functioning of public authorities as such. Denying the provision of information forming part of the public sphere would limit the fundamental freedom of the individual to form an opinion (as a result of thinking) on a matter of public interest (see paragraph 14 of the cited finding). All that may be of legitimate public interest is part of the public sphere.
Application of general considerations to the case under examination
40. In the present case, the main issue is the conflict of the right to information, which is implemented (with the exception of environmental information) through the Law on Free Access to Information, and the prohibition of providing information under Section 73 (7) of the Health Services Act, which applies to data held in the National Health Information System. The resolution of such a conflict is not a novelty for the Constitutional Court, and the conclusions contained in the already cited finding sp. zn. Although the Constitutional Court then complied with the application to abolish the word "final 'in § 11 (4) (b) InfZ, the same procedure does not need to be applied in the case of the legislation currently under appeal. At the same time, in that finding, the local court formulated a way for futuro to be followed by obliged entities in cases of statutory exclusions (such as this).
41. The Government explained in its observations that the application practice of the ÚZIS is based on the assumption that the contested provision containing an exclusion from the information obligation under Paragraph 73 (7) of the ZZS considers, in relation to InfZ, a special rule that takes precedence over InfZ as a general rule. In the present case, however, it is not necessary to apply the lex specialis derogat legi generali rule, as their conflict can be solved by a constitutionally consistent interpretation. In addition to the contested provision, the general standard contained in Section 12 of the Freedom of Access to Information Act will apply, but which has not been applied to the case before the Municipal Court by the compulsory body. If we could talk about a collision, then only in relation to the contested legal standards to the constitutional standard would it, without further this sub-constitutional standard or rather its interpretation and application to limit the constitutionally anchored right to information. In such a case, it is necessary to accept the higher legal force of the constitutional standard or to identify the competing public interest or other constitutionally guaranteed law that should be protected by the statutory exclusion and resolve the conflict of those rights.
42. For the exercise of the right to information, the principle that information is provided should be based primarily on the principle that any restriction on that right should be interpreted in a restrictive manner. As mentioned above, the restriction of the right to information can only occur where such a procedure has legal basis and is necessary in a democratic society to protect other competing rights or values (such as public interest, public security, rights and freedoms of others, etc.). However, the necessity of the restriction cannot and priori be summed up only by the text of the law, which is a formal condition for limiting the right to information. On the contrary, it is always necessary to first identify the competing public interest or other constitutionally guaranteed law, which should be protected by the statutory exclusion and to measure them against each other, for example by carrying out a proportionality test (a previously used public interest test). The limitation of the right to information, or the necessity thereof, must then result from this measurement, in this way the material condition of the restriction of the right to information will also be fulfilled at the same time [see also FUREK, Adam. 12 (Conditions of limitation). In: Furek, Adam, ROTHANZL, Luke, JIROVEC, Thomas. The Freedom of Information Act. Comment. Praha: Publishing Centre C. H. Beck, 2016, p. 616].
43. The need for a finding of fulfilment of both conditions is also apparent from the finding of point P.P.ÚS 2 / 10, in which it was stated that it was necessary to examine in any particular case (as the case may be) the fulfilment of the condition of the necessity of a limitation of the fundamental right and the freedom of an individual in a democratic society, since it cannot and priori be excluded that, in a particular case, the protection of the fundamental right would prevail over quoted values, i.e. that there would be no "urgent social need 'to limit the fundamental right. At the same time, in other decisions, the local court expressly stated that no law could be ruled out in order to protect fundamental rights and freedoms guaranteed by constitutional order, and that in each individual case of a conflict of constitutionally guaranteed rights, the courts and other public authorities had to compare the proportionality test with the conflict of standing rights and ensure that the fair balance between them was respected [see the findings of 17 October 2017 sp. zn. IV (ÚS 1378 / 16 (N 188 / 87 SbNU 77) and of 3 April 2018 sp. IV (ÚS 1200 / 16) (N 64 / 89 SbNU 25)].
44. The content of both the judicial and administrative files submitted by the appellant in the reference case indicates that the claimant requested the compulsory body to provide a statistical overview of the number of deaths of persons per period of time for various causes. These issues may, without doubt, be of legitimate public interest and therefore part of the public sphere, which is why the guarantees under Article 17 (2), (4) and (5) of the Charter apply. Although the applicant's request to provide such information was partially rejected by reference to the contested legal provision, the applicant was also instructed by the compulsory body to provide the same information in accordance with the procedure laid down in Paragraph 73 (8) of the ZZS. According to this provision, for statistical and scientific purposes, the Statistical Institute (ÚZIS) provides data from national health registers only in a form from which a specific natural or legal person cannot be identified. The Statistical Institute shall be entitled to claim a remuneration for the provision of such data, which shall not exceed the costs associated with the acquisition of extracts, copies, measures of technical data media and the sending of data to the authorised body. Where appropriate, the Statistical Institute may also require a remuneration for exceptionally extensive data searches.
45. The Constitutional Court concluded that such a way of dealing with requests under InfZ cannot and cannot be addressed. It should be borne in mind that it is solely up to the choice of the applicant to choose which instruments he chooses to implement his rights. However, if an information request has already been submitted under InfZ, the compulsory body, if the information requested falls within its competence, shall itself be required to deal with it by the procedure envisaged by InfZ. It is not possible to refuse to provide information where the compulsory body has it, on the grounds that there are other ways in which the applicant can obtain it. Act No. 106 / 1999 Coll., on free access to information, as amended, namely the processing of the application by referring the applicant to an alternative possibility of obtaining information, to a procedure under another legislation or to a reference to other entities to which the applicant should contact. Therefore, it is not possible for the administrative authorities to address the proposed alternative use of Section 73 (8) of the ZZS to the applicants. It should be added that this adjustment applies in addition only to the provision of information solely for statistical and scientific purposes and therefore does not affect the situation at all. Although it can be considered as one of the options for obtaining NZIS information, the provision of information under InfZ cannot be excluded and cannot be a means of avoiding the application of the contested provision. It is not possible to impose an applicant on claiming the intended use "for statistical and scientific purposes," if this is not true.
46. The compulsory body handling the information application submitted under InfZ should therefore first assess whether the requested information relates to its scope, whether it is in fact available to it, and then, in the light of the legislation and the established case-law, assess whether there is a reason not to provide it. In order to do so, it is necessary to ask the fundamental question of what constitutional value, what fundamental law or public interest could be affected by the provision of the requested information, or in particular in this case, which of them should actually be protected by the contested provision.
47. In general, it might be possible, within the meaning of Article 17 (4) of the Charter, to admit potential threats to the rights and freedoms of others, namely those enshrined in Article 10 of the Charter. It can be agreed that the right to preserve human dignity, personal honor, reputation could be compromised by the provision of information from the NZIS; it could certainly be affected by private and family life or the right to protection against unauthorised collection, disclosure or other misuse of personal data. The intention to protect these values would be evidence of the circumstances under which the contested provision became part of the law when, on the basis of an amendment, it was adopted as part of Act No. 111 / 2019 Coll., amending certain laws in connection with the adoption of the law on the processing of personal data. On the other hand, however, this legal exclusion does not only affect information having the nature of personal data but all the information contained in the NZIS - with the exception of data structure information.
48. However, it should be noted that the threat to the above-mentioned fundamental rights could only occur if data on specific persons were required. This was not the case in the present case. The applicant was not interested in the nominal data, but was not successful with its application. In this context, it is difficult to understand the government's argument, which has repeatedly emphasised, on the one hand, that the contested legislation is primarily intended to protect against requests for direct or indirect identification of a person from the content of NZIS registries, and that the current practice of providing information from NZIS does not restrict any relevant and legitimate request, nor does the provision of primary data, unless the direct or indirect identification of a person, on the other hand, considers that the applicant's request to provide non-addressed data is lawful and correct.
49. If, on the basis of the requested data, the government then claims that, in many other cases, it is possible to identify patients of health service providers, it is appropriate to add that the protection of personal information, personal manifestations, privacy of a natural person and personal data is, at the legal level, regulated in Section 8a (1) of the InfZ, according to which the obliged entity provides this type of data "only in accordance with the legislation governing their protection '. Such a regulation is then Act No. 89 / 2012 Coll., Civil Code, as amended, Regulation (EU) 2016 / 679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95 / 46 / EC (General Data Protection Regulation) and Act No. 110 / 2019 Coll., on the processing of personal data. When processing requests for information, the compulsory body is obliged to take account of this legislation, and the protection of the rights quoted is ensured in this way. There is therefore no reason, nor is it desirable, to regulate the protection of those rights in a natural and non-systemic manner for each of the areas of competence of public authorities individually, let alone in the form of a legislative" adhesive'.
50. If there is any other possible intention by the legislature or presurer to limit the right to information under the contested legislation, the Constitutional Court considers it necessary to recall that public authorities do not enjoy protection against the increase in the agenda, there is no public interest in denying information (including those of professional) to laymen who the compulsory body considers to be unaware of the issue and could misinterpret the data obtained in an inappropriate or unethical way. Such a paternalistic approach by obliged entities is a sign of a manifest misunderstanding of their position and role, which, moreover, do not clearly see the exercise of their powers as a service to the public and do not regard information as a public good created by public funds. Similarly, other reasons for maintaining legislation, such as the possibility of creating unnecessary concerns for lay citizens, the possibility of issuing misleading information or the possibility of error of records due to data export, can be seen. After all, there is more to it than real and verifiable practice, or constitutionally protected values or public interest, rather than a wide list of potential or hypothetical threats, which may also affect the provision of other types of information.
51. The Constitutional Court cannot attest to the Government, even if the usefulness of the contested provision is evidenced not by a list of specific cases in which it has served to protect against interference with competing rights or values, but only by an increase in applications, the compliance of which could thus be avoided by the compulsory body by rejecting them, with reference to the contested legislation. This indicates, in particular, that the contested provision protects, in particular, the compulsory body from workload, but this is not an objective which can be considered legitimate. Moreover, where it can be concluded from the Government's observations that the applicants have the same information which they are denied under the contested provision, without any difficulty, if they are asked for it in accordance with the procedure laid down in Paragraph 73 (8) of the ZZS, there can be no doubt that the actual reason for their protection does not exist and that, at least in these cases, it is merely a formalistic procedure for a compulsory body bordering on bullying access to applicants. If the practice of the SAE were indeed such that it instructs the applicant, in the text of their application, to simply put it, to confuse the reference to InfZ with a reference to § 73 (8) of the ZZS, the degree of formalism of the procedure described would be as absurd as in kafkovsky.
52. For the reasons set out above, the Constitutional Court did not find, both in general and in the case brought before the Municipal Court and led to the application now under consideration, a reasonable reason for such a fundamental limitation of the right to information in order to conclude that the refusal of information to the applicant fulfilled the requirement of necessity as laid down in Article 17 (4) of the Charter. There is therefore no legitimate reason to justify administrative decisions, and since the information which the compulsory body refused to provide to the applicant was not included in the administrative file, it cannot be inferred from it or any other reason not to provide it. On the other hand, the Constitutional Court observes that such omission of compulsory bodies is generally the reason for the reexamination of a first-degree decision by a superior administrative authority, even if it prevents the superior authority from providing the requested information directly following the outcome of the appeal proceedings. However, in view of the content of the request, the requested information would probably only consist of a combination of three types of data - the cause of death and the corresponding number of deceased at specific times. In such a case, it is difficult to imagine a reasonable reason why the requested information should be withheld from the applicant, on the contrary, as the applicant has already indicated, the public interest in their publication is undisputed and nothing should prevent the obliged entity from providing the requested information.
53. The conclusions adopted by the Constitutional Court will certainly also be applicable to other requests made by the ÚZIS under the Freedom of Information Act, but this does not mean that, in other specific circumstances, the refusal to provide information from registers cannot be justified. Should such a situation arise, it is for the compulsory body, with any conflicts of equivalent rights, to deal with them in a reachable manner, to evaluate them by assessing which of the conflicting fundamental rights it outweighs and which, on the contrary, would have to be limited, and if it withdraws information from the applicant in order to provide a clear and convincing justification for any decision.
54. The requirements for the implementation of the InfZ information programme, in particular the level of administrative decisions issued by the mandatory bodies and their superior bodies, have increased disproportionately since the beginning of the information law. Its quality cannot be waived, as it is merely a marginal competence of the compulsory bodies. On the contrary, the provision of information according to InfZ is already an integral part of their competence and this must, of course, be adapted to their personnel equipment. It cannot be allowed that, in a situation where similar claims are made, for example, to compulsory municipal bodies with minimal official apparatus, the lower level is tolerated by public authorities with a disproportionately larger professional background. For example, when deciding to reject a request for information, the compulsory body cannot be satisfied with a mere reference to a legal provision. However, according to the type of compulsory body (especially for the small local authorities mentioned), certain limits can naturally be assumed, although, at least an elementary and argument-based examination of the fulfilment of the condition of the necessity of the limitation of one of the competing fundamental rights should always be included in the statement of reasons for the decision. At this point it is necessary to point out the irreplaceable role of the Ministry of Interior as guarantor of the Information Act and its methodological outputs [see DOC Documents - Ministry of Interior of the Czech Republic (mvcr.cz)], which, although intended primarily for local authorities, can greatly facilitate the activities of any compulsory body.
55. However, from the point of view of checking the standards, it is essential that, from the caselaw cited here in the Court of First Instance, but also from the case-law of the administrative courts, the constitutional interpretation of the contested provision can be inferred. In this, the Constitutional Court breaks up with the municipal court in a manner that is why it was unable to comply with his proposal. As pointed out by the appellant, the Constitutional Court is limited to the principle of the primacy of the constitutionally conformal interpretation prior to the derogation and the principle of minimisation of the intervention of other public authorities, to which it applied in a number of its decisions [e.g. sp. zn. Pl. In any event, from many conceivable interpretations of the law, only an interpretation which respects constitutional principles (if such an interpretation is possible) must be used, and the repeal of the provisions of the law on non-constitutionality must be allowed only if the provision in question cannot be applied without violating its constitutionality.
56. Moreover, by repealing the contested provision, the Constitutional Court would de facto confirm the administrative procedure and its interpretation that, in the present situation, it was not possible to treat the requested information differently from the applicant. This would change completely the existing view of statutory exclusions from the information obligation, in particular their interpretation and claims on obliged entities in their application. If the Constitutional Court would not now accept their constitutionally consistent interpretation, this would mean, in future, that legal exclusions would have to be accepted without exception, until they are declared unconstitutional.
57. The Constitutional Court therefore concludes that the legal limitation of the information obligation cannot be without further definitive, as demonstrated by the practice already established or the available case law of the administrative courts. Similarly, the prohibition on the provision of information on pending criminal proceedings [§ 11 (4) (a) InfZ] was overcome. For example, the case law of the Supreme Administrative Court, which, in its judgment of 1 December 2010, sp. zn. 1 As 44 / 2010, stated that obliged entities would not provide information on the ongoing criminal proceedings only after considering the extent to which the reason for the failure to provide information is indeed justified by an urgent social need. Similarly, it was noted in the judgment of 5.6.2019 in Case C-101 / 2019, that information on ongoing criminal proceedings under Paragraph 11 (4) (a) of the Freedom of Information Act is not fully excluded from the provision. The compulsory body (or subsequently the court) must first consider whether disclosure of information on ongoing criminal proceedings will have a negative impact on its conduct.
58. While legal exclusions will generally correspond to the reasons for limiting the right to information resulting from Article 17 (4) of the Charter and Article 10 (2) of the Convention, this may not always be the case. The constitutional court described the procedure of the compulsory bodies in their application and the constitutionally consistent interpretation of such a standard (see in particular paragraphs 46 to 52) then also guarantees that the legislature itself will not be able to intervene and vacate the information by means of legal regulation. On the other hand, it is not necessary to derogate explicitly from any such restriction on the right to information, taking into account the procedure described, but it cannot be excluded that some of them may become obsolent.
Conclusion
59. The Constitutional Court concluded that, if the contested provision was interpreted by literal grammatical interpretation, there would be no doubt that it was contrary to constitutional order as it interfered with the fundamental rights and freedoms of applicants for information. In such a case, the Constitutional Court would indeed have to proceed with the annulment of the contested provision. However, as is apparent from the above and from the established decision-making practice, there is a constitutionally consistent interpretation of statutory exclusions from the information obligation, which reflects a restrictive approach to them.
60. In the light of the foregoing, the contested legal provision cannot be regarded as contradictory to the fundamental right of information provided for in Article 17 (4) of the Charter, since its application to the appellant of the case in question does not prevent it from reaching a constitutional consensus in the proceedings for an administrative action brought. In the light of the foregoing, the Constitutional Court therefore rejected the application for annulment of the contested provision of the Health Services Act pursuant to Paragraph 70 (2) of the Constitutional Court Act, since it did not find its contradiction with the constitutional order.
President of the Constitutional Court:
v. JUDr. Tomková v. r.
Vice-President
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Regulation Information
| Citation | The Constitutional Court found no 40 / 2023 Coll., on the application for annulment of § 73 paragraph 7 of Act No. 372 / 2011 Coll., on health services and the conditions for their provision (Health Services Act), as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 22.02.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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