COMMENTARY ON THE JUDGEMENT OF THE SUPREME ADMINISTRATIVE COURTOF 28 SEPT. 2018, REF. NO. I OSK2016/16 (PARTLY APPROVING)

Abstract

The subject matter of the commentary focuses on the issue of the functional and grammatical interpretation of the notion of ‘a person perform-ing a public function’, which, in the author’s opinion, does not directly refer to the public offi cer referred to in Article 115(13) of the Act of 6 June 1997 Penal Code. The author highlights the unjustifi ed perception of a person performing a public function by the Polish justice system as being viewed as a public offi cer as defi ned in Article 115(13) of the Penal Code. The main arguments focus on the risks arising from an overly broad in-terpretation of the concept of a person performing a public function. In fact, the lack of a defi ned set of persons performing public functions may give rise to a malfunction on the part of the entity obliged to make public informa-tion available, and thus to the constitutional principle of limiting the right to public information on the grounds of privacy.The fi nal part of the commentary is a refl ection on making public infor-mation available under the provisions of the Act of 15 July 2011 on Control in Government Administration, and a starting point for a broader discussion on the need to amend the current legal system.