Public Governance, Administration and Finances Law Review


CASE STUDIES

�e right to information:
Whether or not to publish information on salaries

of employees paid from public funds

Kateřina Frumarová*

* JUDr. Kateřina Frumarová, PhD. is associate professor for administrative law, Palacky University
in Olomouc, Faculty of Law. (e-mail address: katerina.frumarova@upol.cz)

Abstract: �e right to information is an important instrument for a control of public authority in any
democratic state. Ocasionally, however, there may be a con�ict between this right and the right to
privacy. In this context, the Czech Supreme Administrative Court was tasked with solving the question of
whether information on the salaries of employees who are paid from public funds can be published.

Keywords: right to information; right to privacy; recipient of public funds; information on salaries

Ensuring access to information is essential for the proper functioning of any
democratic society, and the exercise of public power in a democratic legal state
should be open to public debate and control. �ese principles of publicity,
transparency, and openness in the exercise of public authority is recognized and
consistently applied in the Czech Republic. And the institute of the right to
information signi�cantly contributes to the ful�llment of these principles. ‘�e
right to information is a constitutionally guaranteed right’, (Article 17, Czech
Charter of fundamental rights and freedoms states [hereinafter ‘Charter’1]).
�is clearly states that the freedom of expression and the right to information
are guaranteed, and that state bodies and territorial self-governing bodies are
obliged, in an appropriate manner, to provide information on their activities.
Conditions therefore, and the implementation thereof, are provided for by law
– namely by Act no. 106/1999 Coll., Free Access to Information. �is Act is
based on the presumption that all information must be published, unless the
law provides an exception.

From this Act, a highly discussed and controversial issue emerged: whether
information shall be provided (i.e. published) on the salaries and other bene�ts
of employees who are paid from public funds. Regarding this issue, the Czech
Supreme Administrative Court was very clear in judgment no. 8 As 55/2012-

10.53116/pgaflr.2016.1.6

https://doi.org/10.53116/pgaflr.2016.1.6


62, dated 22 October 2014.2 �e respective case concerned whether
information on the salary of the director of an elementary school should be
published. While this was one speci�c case the judgment is essential, because it
provides generalizing (general) conclusions on whether and why such
information should be published by employers (those represented by state and
local authorities, and various public institutions) if citizens request this
information under the Act.
�e Supreme Administrative Court dealt primarily with the apparent

con�ict between the right to free access of information, and the right to
privacy. Both are guaranteed by the Charter, as Article 10 provides that anyone
has the right to be protected from the unauthorized gathering, public
revelation, or other misuse of his/her personal data. According to Article 7 of
the Charter, the protection of the person and of his/her privacy is guaranteed,
and this may only be altered in cases provided for by law. However the Act on
Free Access to Information states that there will be personal data provided on
those individuals who receive public �nance (a so-called recipient of public
funds), to this extent: name, surname, date of birth, municipality where the
recipient has a permanent residence, amount, and purpose and terms of
provided public funds. A public administration employee receives a salary for
his/her work, which is paid from public funds. He/she is therefore considered
(by the Act on Free Access to Information), ‘a recipient of public funds’.
�erefore, the amount of a salary and other �nancial bene�ts in connection
with the name and surname of the person is personal data that should be
published.

How does one reconcile the con�ict of these constitutionally guaranteed
rights? �ere is no doubt that the right to obtain information on the recipients
of public funds represents a not insigni�cant interference with the recipients’
privacy. Such information is certainly at odds with personal data protections
outlined in Article 10 of the Charter, and also in Article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
In a situation which contradicts two fundamental rights, the legislator (the
state – i.e. the Czech Republic) must carefully weigh which of them will be
given priority; to what extent and under what conditions. �e legislator must
consider whether the solution to this con�ict can be determined on a general
level, or whether discretion should be given to the administrative authorities,
or courts, for the consideration of individual cases. It should be noted that the



con�ict between the right to information and the right to privacy requires (to a
certain extent) the prioritizing of one basic right over the other.
�e Supreme Administrative Court, after a thorough analysis of the law

(including aspects of EU law), concluded that the Act on Free Access to
Information does not allow the court to determine which right should
supersede the other (ie. to apply the principle of proportionality). While the
legislator did favor the right to information of recipients of public funds, the
legislator noted that certain information should be completely eliminated (for
example, information regarding recipients of pensions or unemployment
bene�ts) and in all other cases only a limited amount of personal data shall be
provided, in an e�ort to provide some privacy to recipients.
�e reasoning which led to this conclusion was summarized by the Supreme

Administrative Court as follows: ‘�e basic purpose is to control public power
through access to information on the spending of public funds.’ It is generally
known that the modern state manages a large amount of money, and through
public budgets passes almost half of the gross domestic product. �ese funds
are redistributed and used for a variety of purposes, from pensions and other
social spending, to a variety of grants and subsidies, to salaries of public sector
employees and operating expenses. And there is a strong public interest that
these funds be e�ectively managed and spent in accordance with the law.
Besides control through public authorities, a direct control of management of
public funds by the citizens is very important because each citizen should be
informed of how public power manages public �nances. Each power, even
democratic, corrupts, and the less it is monitored, the greater the risk of its
misuse is. �e control of public authorities signi�cantly prevents the abuse of
public power and strengthens the democratic legitimacy of the political system.
Another purpose is that the �ndings obtained through the Act on Free Access
to Information can be used to e�ectively re�ect of public authority itself. If a
fault is detected, there should follow a correction of the behavior and
management of public authorities.

Finally, we cannot underestimate the preventive e�ect of this Act. �e fact
that the public authority may be exposed to questions from the public which it
is required to answer, usually leads to more proper behavior of public power
authorities. But it is also beyond doubt that public control can have negative
consequences and that this institute could be abused by citizens. However, the
court adds that the positives certainly outweigh the negatives.



�e inclusion of employees among the recipients of public funds, on which
such information must be provided, is legitimized by the intense public
interest in controlling public authority and the e�ciency and e�ectiveness of
its activities in the areas of employment and remuneration. It is suitable and in
a modern state is a very useful instrument in controlling the public sphere. �e
costs for salaries (wages) and other �nancial bene�ts to employees are an
important item of public expenditure, and the public power has a relatively
high degree of discretion. �erefore, there must be a broad, general, and
e�ective public control. �e control mechanisms which are available to the
public sphere itself, without public participation, would not be su�ciently
e�ective. �e Supreme Administrative Court stated that publishing salaries
does not represent, for someone who is paid from public funds, any material
injury. Information on salaries cannot be considered information that would
have shamed the recipient or otherwise reduced their human dignity.
Arguments that this information can lead to envy and discord among the sta�,
or the unrest in their personal lives, must be rejected. �e individual who
determines the salary is obliged to follow the law, and must be able to justify
his/her decision and defend their authority, which underlies his/her
discretionary authority. Furthermore, the Supreme Administrative Court adds
that neither fear nor envy can be considered relevant. Envy is a human trait
stemming from the pettiness of the soul and we cannot face it by legal means.

Despite the above �ndings, however, the Supreme Administrative Court
accepts that the employer is not obliged to provide salary information relating
to recipients of public funds –only for certain exceptions. If the employee
participates in the activities of the employer only indirectly and in an
insigni�cant way, concurrently there is no doubt that public funds are spent
e�ciently. �is will apply in particular to employees who perform ancillary
and service jobs (e.g. maintenance, cleaning, catering, etc.). In relation to these
employees, a publishing of the information about their salaries may be denied
(on the principle of proportionality), even if they are paid from public funds.
If there are doubts, a preference should be given to provide information.
�e judgment of the Supreme Administrative Court thus provides the

following general conclusions for practice in the publishing of data on the
salaries of employees who are paid from public funds:

1. Information on the salaries of employees paid from public funds must be
provided according to the Law on Free Access to Information.



2. �e employer does not provide information on employee’s salary. Only
rarely – in cases when such a person participates in activities only indirectly
and in an insigni�cant way, and concurrently there is no doubt that public
funds are spent e�ciently.
�is decision of the Supreme Administrative Court can be undoubtedly

evaluated positively. Although the publishing of information on employee
salaries may bring some negatives or may be abused, this author believes that it
is a necessary and e�ective instrument in controlling public authority. Citizens
have the right to exercise control over the management of state public funds,
which consist largely of taxes that are paid by citizens. Consequently, the
judgment is a signi�cant step towards ful�lling the principle of publicity and
transparency in the exercise of public authority in the Czech Republic.



References

1. Resolution of the Presidium of the Czech National Council of 16
December 1992 on the declaration of the Charter of fundamental rights and
freedoms as a part of the constitutional order of the Czech Republic, No.
2/1993 Coll.

2. Available at www.nssoud.cz.

http://www.nssoud.cz/