Legal Eye: Decent disclosure

"A person applying for a position of public trust and born before August 1, 1972 is required to first apply for and obtain written confirmation from the Institute of National Remembrance regarding the existence of any information on file regarding such person maintained by state security authorities prior to 1990."

- Act on Disclosing

Information Maintained by the State Security Authorities Prior to 1990

The parliament is currently considering the adoption of new regulations governing the vetting of public officials. The act, if adopted in its current form, will impose new obligations on those holding a position of "public trust" to disclose what, if any information, the Institute of National Remembrance may have on file regarding that person's cooperation with state-security agencies prior to 1990.

This requirement to affirmatively disclose such information, in the form of an official certificate to be issued by the Institute of National Remembrance, marks a sea change with respect to providing full disclosure. Under the vetting system currently in use, a public official need only provide his or her personal declaration that no such cooperation ever occurred.

Why the change?

According to the act the change is to "ensure the appointment of persons whose prior behavior evidences nobility, fairness, a sense of responsibility for their own words and actions and civil courage - all characteristics necessary to fulfil positions of public trust."

The preamble goes on to declare that a person who cooperated with one or more secret-security organs of the former communist government is guilty of committing a fundamental crime against human rights in support of a totalitarian regime. The authors of the act hope to prevent former collaborators of the state security apparatus from holding positions of public trust. A person seeking election to public office will also need to obtain certification in advance of assuming office.

Public trust?

Under the act, persons required to provide such certification from the Institute of National Remembrance will include not only public officials, such as members of Parliament, EU delegates and regional and local officials, but also persons holding positions of public trust, such as notaries, attorneys, school principals (both public and private) and persons serving on the boards of state-controlled companies.

What information?

In addition to containing basic information regarding the person in question, the certificate will include more substantive information, including if indeed the records on file include any information on the person, a description of the "character" of the information on file, if any, a description of supporting evidentiary documentation on file and the employment and service dates of the person in one or more state-security agencies.

Information contained in the records of a highly personal nature, such as health and sexual orientation, will not be disclosed, even if such information is included in the documentation on file.

Publicly available

An electronic version of each certificate will be made publicly available on the internet, with the person's place of residence and PESEL number removed.

Finally, for those of you not content to wait for a particular public official to apply for and obtain his or her own certificate, you will soon be able to review all files on record regarding any public official upon demand. But remember, the subject of your investigation needs to be a public official or a person holding a position of public trust.

Paul Fogo is a senior attorney with Miller, Canfield, W Babicki & Partners