Digital communication with public administration authorities

Under the anti-crisis statutes, the Polish national postal operator will, until 30 September 2020, use what is known as hybrid mail to deliver letters using electronic means.

More specifically, according to the new regulations, the operator will receive a registered letter and then handle and deliver it as an electronic document to its recipient without the recipient having to sign for the receipt of the document. In practical terms, the idea of the hybrid mail service is to make a digital version of a hard copy letter and to deliver the digital document to its recipient by electronic mail. The document delivered electronically will have the legal effect of its hard copy counterpart.

The electronic document will be deemed delivered on the day when the recipient becomes familiar with the document made available in the inbox. If the recipient does not become familiar with the document, the document will be deemed delivered 14 days after it is made available, as is the case with traditional registered letters.

The hybrid mail delivery service will not be available to everyone. To use the service, you must be registered to use the "trusted profile" identity authentication service and have given consent to the receipt of letters using the hybrid mail service.

It is good to note that the hybrid mail service provisions are not sufficiently precise. For example, it is not clear how the postal operator, when receiving a letter from a sender, will find out that the recipient is registered to use the "trusted profile" service, or how the operator will contact the recipient to obtain their consent. Doubts have also emerged over the fact that the hybrid mail service regulations do not provide for the sender's consent, although the sender may have a 'legal interest' in that the letter is not opened on its way to the recipient and that no third party has access to the content of the letter.

However, the hybrid mail delivery service will not be used for all deliveries. For example, it will not be available in the case of letters posted to or by courts, public prosecutors and other law enforcement agencies, as well as by court bailiffs. Letters to and from tax authorities are not excluded. This means that taxpayers may give consent to the use of the hybrid mail service in correspondence with tax authorities or other public administration authorities not excluded from the service.

The Polish Ministry of Digital Affairs says that the delivery of letters using the hybrid mail service will be protected by the "postal secrecy" principle, covering the posting, scanning and delivery of any letter.

However, the hybrid mail service regulations are causing much uncertainty. It is not clear who and when should open registered letters and make digital copies of them. It follows that the recipient’s consent to the use of the hybrid mail service may have far-reaching consequences, such as the infringement of the constitutional principle of secrecy of correspondence or the right of privacy.

It is also not clear how the recipient's 'legal interest' will be protected if the digital copy delivered to them is defective. After all, the scanned copy of a letter may be illegible and/or incomplete. Also, it is important to note that email accounts may have incoming email file size limits, which may prevent the receipt of large files. This risk will fall on the recipient, who will not be able to receive a digital letter, although he has given consent to the use of the hybrid mail service. The doubts raised above are particularly significant if the recipient is a taxpayer and the digital letter is a letter from a tax authority with tax assessment.

Work has been continuing for years on a Act on electronic delivery of documents introducing electronic deliveries of correspondence. The Act contains provisions for the exchange of correspondence between public entities and other public entities, private entities and individuals.

According to the Act on electronic delivery of documents, the hybrid mail service would involve converting an electronic document sent by a public entity into a hard copy letter to be delivered to recipient. In practical terms, an electronic document would be printed and delivered to recipient. The process would be automated to ensure that the "postal secrecy" principle is respected throughout the service supply process. This would be the opposite of the postal delivery process implemented in response to the Covid-19 pandemic. If recipient prefer receiving letters in the traditional way, a letter from authority will be printed at the post office to which it was delivered, placed in an envelope and delivered to recipient. However, this option will not be available to professionals (such as tax advisers or lawyers) representing taxpayers in dealing with tax authorities, as they will be required to receive electronic documents electronically.

According to the proposal, the Act on electronic delivery of documents should become law on 1 October 2020, except for some of its provisions, i.e. those regarding administrative court proceedings, which are expected to become effective on 1 January 2029. 

As the digital services sector is growing fast, the replacement of hard copy documents with their electronic versions, also in communication between the state and the citizens, was only a matter of time. Electronic deliveries are certainly a step in the right direction that will make communications between the state and the citizens (including communications between taxpayers and tax authorities) easier and faster. At the same time, there are justified concerns over the protection of the secrecy of correspondence, the protection of privacy and the protection of professional secrecy in the case of the electronic delivery of documents.

Dominika Gaca-Jurkiewicz,
Supervisor in the Tax Litigation Team at KPMG in Poland