In the September issue of the NSS collection of decisions the following caught our attention
Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský, Mgr. Tomáš Rendl
The Supreme Administrative Court (the “SAC”), in its judgment of 22 June 2021, No. Komp 2/2020-44, ruled that the appeal authority for the state-funded Czech Tourism Centre – CzechTourism (“CzechTourism”) is the Office for Personal Data Protection (“OPPD”), and not the Ministry of Regional Development, in the case of issuing decisions under the Freedom of Access to Information Act (the “FOIA” or “Information Act”).
CzechTourism received a request for information under the Information Act in late 2019, to which it responded with a letter informing the applicant that it would not comply with the request. The applicant regarded this letter as a decision to refuse its request and lodged an appeal against it within the meaning of Section 16(1) of the Information Act (the “appeal”), which it addressed to the Ministry of Regional Development. The Ministry subsequently forwarded the appeal to the Office for Personal Data Protection by a resolution, as it considered the OPPD (in view of Section 20(5) of the FOIA) to be the competent authority to decide the appeal against the CzechTourism decision. The aforementioned provision of the FOIA states that “If the superior authority cannot be determined pursuant to Section 178 of the Administrative Procedure Code, the Office for Personal Data Protection shall decide on the appeal and complaint proceedings.” However, the OPPD subsequently referred the appeal back to the Ministry of Regional Development on the grounds that it did not consider itself to be the competent administrative authority to decide on the appeal.
The Ministry of Regional Development then filed an action for competence pursuant to Section 97(1)(c) and (3) of the Administrative Procedure Code (the “APC”). According to the Ministry of Regional Development, on the basis of Section 178 of the APC, it is not possible to determine the superior authority for CzechTourism, or rather, on the basis of the cited provision, it cannot be concluded that the Ministry of Regional Development is the superior authority.
The SAC first tested the submitted competence action for its admissibility. It follows from Article 97 et seq. of the Code of Civil Procedure that three main conditions must be met in order for a dispute to be a competence dispute, which the SAC is competent to decide. First, there must be proceedings in which the rights and obligations of natural or legal persons are at issue. Second, it must be a positive competence dispute (two administrative authorities claiming competence to decide on a specific matter) or a negative competence dispute (two administrative authorities denying their competence to decide on a specific matter). Third, the administrative authorities must be the bodies defined in Article 97(1) of the Code of Civil Procedure, and only in the combinations set out therein.
With regard to the first condition, the SAC stated that CzechTourism is the body obliged and competent to decide on a request for information, as it is a public institution within the meaning of Article 2(1) of the FOIA. The filing of the appeal initiated proceedings on the applicant’s appeal against the decision to reject the application, i.e. it initiated proceedings in which the rights and obligations of a legal person – the applicant – were to be decided.
Under the second condition, the SAC, referring to Section 133(4) of the APC, stated that the case in question was a negative competence dispute, in the context of which there was no need to conduct conciliation proceedings, as the OPPD had argued. In the opinion of the SAC, it followed from the aforementioned provision of the APC that conciliation proceedings were a mandatory condition only for positive competence disputes.
With regard to the third condition, the SAC, referring to Section 2 of Act No 2/1969 Coll., on the establishment of ministries and other central state administration bodies of the Czech Republic, stated that both the Ministry of Regional Development and the OPPD are central administrative authorities within the meaning of Section 97(1)(c) of the APC. The SAC therefore found that all three conditions were met and the action was admissible.
On the merits of the case, the SAC stated that it follows from Section 16(3) of the FOIA that an appeal against a decision of a statutory body to refuse a request for information should be decided by the superior authority of that statutory body. Pursuant to Section 20(4) of the FOIA, the superior authority is determined in accordance with Section 178 of the APC. If, according to this provision of the APC, the superior authority cannot be determined, Article 20(5) of the FOIA applies, which states that the OPPD shall automatically decide in appeal procedures. The SAC therefore assessed whether the superior authority of CzechTourism could be determined pursuant to Section 178 of the APC or whether the OPPD was competent within the meaning of Section 20(5) of the FOIA.
According to Section 178(1) of the APC, the superior administrative authority is “that administrative authority which is provided for by a special law. If no special law specifies it, it shall be the administrative authority which, according to the law, decides on appeals or exercises supervision.” In the reasoning of its judgment, the SAC emphasized that this provision must be interpreted in light of the subject matter of the APC according to its introductory provisions, Article 1(1) and (3), according to which the APC regulates the procedures of administrative authorities in the exercise of their competence in the field of public administration and does not apply, inter alia, to legal acts carried out by administrative authorities relating to non-governmental administration.
The SAC summarized that no specific law defines the superior authority of CzechTourism, nor does any such specific law specify which authority should decide on appeals against decisions of this entity or which authority should supervise it. The SAC therefore concluded that the Ministry of Regional Development has a limited management and control role over CzechTourism in a financial and organizational sense, but cannot interfere in any other way in its activities. In the opinion of the SAC, such role exercised by the Ministry of Regional Development in relation to CzechTourism is not a defining feature of supervision, as stated in Section 178(1) of the APC. As to the delimitation of the boundaries of what can be considered supervision within the meaning of Section 178 of the Administrative Procedure Code and what cannot, the SAC stated in general terms (beyond the scope of the case at hand) that “the determination of the intensity and parameters of this relationship between authorities will always be subject to a strictly individual assessment and it is not excluded that other similar organizations established by central state administration authorities will be subject to ‘supervision'”.
On the question of whether CzechTourism exercises supreme or non-sovereign administration, the SAC then concluded that CzechTourism exercises non-sovereign administration with one exception – decision-making in matters of the Information Act. However, in the opinion of the SAC, this partial activity of CzechTourism, in addition to its other wide range of activities (e.g. ensuring the promotion of the Czech Republic and systematically working to create an image of the Czech Republic as a tourist destination abroad; contributing to the development of the tourism sector and providing expert support to the Ministry of Regional Development in this area) cannot lead to the conclusion that CzechTourism exercises supreme authority administration.
The SAC, in response to its earlier judgment in a similar case of 26 November 2011, No. 7 As 99/2011-73, No. 2533/2012 Coll., summarized that CzechTourism “does not exercise supreme administration according to the Act [Administrative Procedure Code] (except for decision-making in matters under the Information Act) and the Act does not regulate the mutual relations between CzechTourism and the Ministry of Regional Development to the same extent and quality as the Act on State Heritage Care in relation to the Academy of Sciences of the Czech Republic and the Ministry of Culture, which justified the Supreme Administrative Court in the specific case mentioned above concluding that supervision within the meaning of Section 178(1) of the Administrative Procedure Code was in fact exercised.”
Thus, the SAC summarized that, according to Section 178 of the APC, the superior authority of CzechTourism cannot be determined, and therefore the provisions of Section 20(5) of the FOIA apply in full for the determination of the superior administrative authority, from which it follows that the superior authority that will decide on the appeal against the decision of CzechTourism concerning the refusal of the request for information is the OPPD.
The decision of the Supreme Administrative Court is available here, in Czech only.