Poland celebrated its 25 years of democracy recently. In those two and a half decades, among other changes, most public institutions in Poland have got more or less used to citizens' control. It has taken years of advocacy and watchdog activity, as well as a number of court cases to decide whether a given piece of information is actually “public”. But this investment is now paying off: today even some of the most secret of all secret services answer freedom of information requests concerning their work. There is, however, a stain in the image: one agency – Military Counterintelligence Service (SKW) – that keeps refusing to disclose any kind of information about its activity. Their approach is a reminder of much deeper and systemic problem faced by Polish authorities: the uncontrolled and uncoordinated secret services.
So far, EDRi member Panoptykon’s numerous attempts to obtain public information from the SKW have generated only derisory and senseless conversations with the agency’s office and two court cases. The agency has failed to answer Panoptykon's requests, even when these are only for statistical data on how often they access telecommunication or Internet-related data. Their standard answers remain the same: 1) the data requested do not constitute public information, 2) the freedom of information law does not apply to them, 3) the freedom of information law is actually unconstitutional, 4) data requested could be used by foreign spies against Poland, so it cannot be revealed.
Needless to say, all other agencies provide the same type of data without objections. The freedom of information law applies to all public entities – including intelligence agencies – and covers any information about their activity. Of course, under certain circumstances such information can be refused and kept secret, for example for public security purposes. However, in Poland this is not the case of basic statistical data. The court has already decided twice that the data Panoptykon request constitute “public information”, which does not mean that it can be automatically revealed, but it has to be treated as such. Military Foreign Intelligence remains unconvinced: it fails to comply with the court’s decision by simply ignoring it.
The world is still discussing various aspects of the NSA spying programmes. Poland has recently been shaken by a “tapping scandal”, involving top level government officials. While the content of tapped conversations remains debatable - it may be anything between a corruption case and just a nonsense talk that happen to involve important public figures - the story exposed yet another face of uncontrolled surveillance. Not only were the highest government officials not able to prevent their conversations from being tapped and used against them, but the Internal Security Agency (ABW) ridiculed itself by trying to seize the original recordings directly from the weekly that published the material, thus threatening their journalistic sources. Prime Minister is now facing serious political crisis because of both: the content of tapped conversations held by his ministers, and aggressive behaviour of law enforcement that followed their publication. In fact, what he is actually responsible for, is that he did not make the effort to reform secret services and limit surveillance in the first place. Military Foreign Intelligence escaping citizens’ control is just a minor result of the same negligence.
Anna Obem, Katarzyna Szymielewicz
The article was originally published in EDRi-gram newsletter - Number 12.13, 2 July 2014.
The dream of an open SKW (only in Polish, 18.06.2014)
Panoptykon again in court against SKW. Military counterintelligence above the law when it comes to citizens' access to public information? (only in Polish, 15.06.2014)
The freedom of information law (only in Polish, 6.9.2001)