Energy and information - the experience of the Energiaklub on data requests
Energy has always been a sensitive area in relation to access to data of public interest. This is the area where business interests clash the most frequently with the public’s constitutional interest. The data requests of the Energiaklub Climate Policy Institute and Applied Communications have resulted in lawsuits where the data controller was evidently considered a body performing public function according to rules of law and judicial practice, and yet the data controller argued the opposite. We have also encountered numerous other issues and problems that urge a summary of the Energiaklub’s data request experiences.
Our work is not unprecedented: several NGOs and institutions have done targeted data requests, testing the situation of access to data of public interest in Hungary. We can, among others, mention the studies of the Eötvös Károly Institute, and the TransparentState– KIVELE 2009 program. The present study of the Energiaklub is partly related to these precedents as our goal is to facilitate access to data of public interest and to enforce the freedom of information. The Energiaklub’s data requests are special because we have examined the freedom of information with special regard to the field of energetics, and wanted to facilitate the publicity of energy management public data that can affect our everyday life. The data requests published were not only meant to “test” the freedom of information on energy issues, it was also important to be able to use the data obtained in the Institute’s project.
Why is the freedom of information important?
We find the freedom of information generally, and especially in the field of energy management important for the following reasons:
· without information or with deficient information (or even disinformation), citizens cannot adequately participate in community decision-making, and in the field of energy management – in light of the complexity of information – those who have information can adversely affect decisions if citizens are under-informed;
· a complete information environment helps us to identify corruption cases and take action against them, thus the publicity of energy-related information can be of great help in the fight against corruption;
· finally, it is essential to know exactly how we are provided energy, for how much, with what additional costs, and whether we can reduce our costs.
The Energiaklub initiates targeted data requests on energy management issues in the framework of the Control Energy Program (CEP). From January 2009 until the completion of this study we have requested data, information and documents on 29 cases from relevant authorities, state bodies and companies. The data requests are directly related to professional projects conducted within the Energiaklub, information obtained is incorporated into these projects each time. Within the CEP, based on the above-detailed factors, data requests that are specifically aimed to find out whether unnecessary excess costs burden consumer energy prices, how they are weighed and what their basis is, are handled with extra emphasis. Some of the below detailed issues are still ongoing, therefore we are focusing on finished cases and assessable experiences gained from ongoing projects.
The aim of this study is to present the Energiaklub’s data requests and our related practical observations, from the experiences of which every organisation requesting and controlling data can benefit, not only in the (somewhat specific) field of energy management data. Therefore we dedicate it especially to data controllers and data requestors, to the professional (energetic and legal) public opinion, and to all those who professionally deal with data publicity.
The most important findings based on our data request experiences are the following:
1. Although most of our data requests were granted during the period in question, this does not mean that data requesting is a successful area in itself. Only 3 of our data request cases were conducted without obstacles – that is, we received the data requested within the deadline stipulated in the law in only three cases. Most of the data we received consisted of information that could have been public without the data request (e.g. on the websites of authorities, data controllers).
2. Within the sector, companies typically are significantly less willing to disclose information than state institutions, they rejected the majority of our data requests addressed to them.
3. Even granted data requests do not necessarily go smoothly, in several cases the data controllers did not fulfil their legal obligations. Less than half of our data requests received answers in time, in the rest of the cases data controllers exceeded the deadline stipulated in the law (by two weeks on average, but occasionally there have been two-month delays as well), or did not respond at all so we had to submit a second data request. We had to resubmit our request also in cases when the response was deficient and we had to specify or amend our request.
4. The regulations of the data protection law ensuring quick response and a fast procedure reflect the acknowledgement that in our information-based society knowledge is considered “perishable goods”. With time information loses value because, for example, related public decisions may have been made in the given period, making social debate impossible. Exceeding deadlines therefore does not only harm the constitutional right to know information of public interest, but the organisation requesting the data is also stopped from fulfilling its social-professional obligations.
5. Approaching the right data controller can be a key question in data requests. If the organisation requesting the data fails to turn to the right data controller, and this fact is discovered late – ad absurdum in trial – it can result in significant time loss, and the issue may not even be relevant anymore. There were three such cases among the Energiaklub’s data requests.
6. The most common reason for rejecting our data requests was reference to trade secrets, mostly among companies. It should be emphasised here that they refused disclosing the whole set of documents in most of these cases as opposed to blackening out sensitive business information and disclosing the rest of the documents.
7. It is important to know that any trial aimed at the disclosure of data of public interest has priority. The Energiaklub has been in situations where not only this priority was not granted, but the date of the trial was appointed after a longer period than usually.
8. This, among other factors, shows how important the data controller’s attitude and willingness to cooperate are in a data request procedure. If the data controller slows down the procedure (through late or no response), misinforms the data requester about who has the data, or applies the procedure of handling a whole document body as trade secret as opposed to selecting relevant information and blackening out sensitive data, it can get very difficult for the data requester.
During our data requests we experienced that the culture of disclosing data is undeveloped in the energy sector. We can claim that the sector is not used to the control such data requests impose on it. Late disclosure, failure to answer or refusal to disclose data are all indicators that this type of obligation is still rather regarded as a burden. Data controllers have often a hard time understanding that the aim of the data requester is not to harass them or go to trial, but to know the information. But this attitude can be improved, for instance by regularly requesting data so that data controllers also get used to the demand for publicity.
EKINT, 2008 and EKINT-EMLA, 2008
End of the study: April 2011.
It should also be mentioned that data controlling institutions belonging to the system of public finance are obliged to provide assistance to the data requester in the event that it cannot exactly specify the data requested. Another important rule is that in the event the request was not submitted to the body controlling the data, the request shall be sent to the relevant authority without delay within 8 working days, and the data requester shall be informed at the same time. [Sections 2 and 3 of paragraph 232 of the Government decree 292/2009 (XII. 19.) on the Rules of operation of the system of public finance].
It also occurred with the Hungarian Energy Office, see our data requests that turned into lawsuits.
Examples for this are lawsuits started by the Energiaklub pertaining to the breakdown in Paks (22 September 2004 and 25 April 2005).