Improving the Legal Framework and Practices Regarding Access to Public Interest Information (RO0030)

Status quo or problem addressed by the commitment Although started in 2001, the implementation of Law no.544/2001 on access to public interest information is still marked by a significant number of dysfunctionalities. The analyses made by MCPDC and other government structures before it, as well as those of non-governmental organisations, revealed the need to standardize the format in which all compulsory information is displayed. The research also revealed the necessity to integrate the expectations of civil society on this issue – this involves publishing by default datasets considered public information and mentioned in legislation complementary to the provisions of Law 544/2001. One month after Government approval of the Memorandum titled: Improving transparency and standardization of the way in which public interest information is displayed, initiated by the MCPDC in collaboration with the Chancellery of the Prime-Minister in March 2016, the first assessment of over 350 local and central public institutions showed that ministries implemented over 78% of the Memorandum’s provisions. Main objective Increase transparency in the public sector by publishing extensive public interest information; Improve the institutional capacity to effectively implement the law on access to public interest information. Brief description of commitment MCPDC will continue to develop the standards included in the Memorandum and will monitor their implementation. Concurrently, the Ministry will harmonize practices in the field of access to public information, for both the legal framework and its implementation. The standards will be developed following interaction with the public authorities and the nongovernmental sector, drawing from the experience gained in practice. Actions to improve the professionalism of those involved in managing public interest information will also be taken. OPG challenge addressed by the commitment Improve public sector integrity Efficient management of public resources Improving public services Relevance The commitment contributes to the uniformization of practices in publishing public interest information and to the development of a proactive communication culture in public authorities. Access to information of public interest, as an important sequence of the organizational practice that materialises the implementation of the principle of transparency in the public system, is an essential component of the open government process. Ambition Creation of a minimal standard, for both citizens and public authorities, regarding the way public information is displayed. Reduce the number of access to information requests for information that is already available on the websites of public institutions. Improve the process of informing citizens and ensure better information management in public institutions.

1. Improving the legal framework and practices regarding access to public interest information

Commitment Text:The Ministry for Public Consultation and Civic Dialogue will continue to develop the standards included in the Memorandum on “Increasing Transparency Standardization of Public Interest Information” and monitor their implementation. Concurrently, the Ministry will harmonize practices in the field of access to public information, for both the legal framework and its implementation. The standards will be developed following interaction with the public authorities and the nongovernmental sector, drawing from the experience gained in practice. Actions to improve the professionalism of those involved in managing public interest information will also be taken.

Main Objective:Increase transparency in the public sector by publishing extensive public interest information and improve the institutional capacity to effectively implement the law on access to public interest information.

Milestones:

• Monitor the implementation of the Memorandum’s provisions in all institutions of the executive(over 1800 institutions)
• Identify the conflicts existing in the current legal framework related to access to information and harmonize the legislation (changing of norms, regulations, decisions)
• Develop standards regarding the quality of information provided to citizens and disseminate them, as well as the changes occurred in the legal framework, to central and local public authorities
• Improve transparency in communication between citizens requesting information and public authorities by developing a platform on the model of AskTheEU
• Training sessions for the staff in charge with implementing Law 544/2001 on access to public interest information
• Create maps of good practices in displaying public interest information
• Initiate a national competition for good practices, in order to advance progress in this field, with awards consisting in assistance in the implementation of the new measures.

Responsible Institution(s): Ministry for Public Consultation and Civic Dialogue (MCPDC)

Supporting Institution(s): Chancellery of the Prime Minister (CPM), Ministry of Regional Development and Public Administration (MDRAP)

Start date: August 2016                                                                    End date: June 2018

Editorial Note: The commitment text is abridged. The full text can be found in the OGP 2016–2018 national action plan.

Commitment Aim

This commitment aimed to improve the implementation of the Freedom of Information (FOI) law 544/2001. [1] Research conducted by the Academia of Advocacy, [2] the Romanian Academic Society, [3] and the Institute for Public Policies [4] revealed significant differences in the quality and quantity of public interest information published by the obliged public institutions. Consequently, in 2016, the MCPDC together with the CPM, the Secretariat General of the Government (SGG), the MRDPA, the Ministry of Internal Affairs (MAI), the Ministry of Public Finance (MFP), and the National Agency for Public Procurement (ANAP) signed a Memorandum titled Improving Transparency Standardization of Public Interest Information, [5] in which they agreed to pursue the publication of the same type of information, and in a standardized format, across public institutions. [6] This commitment aimed to monitor the implementation of the Memorandum (Milestone 1), identify the legal bottlenecks that would prevent standardization (Milestone 2), develop and disseminate standards of quality and good practices in support of proactive publication (Milestones 3 and 6), and further improve the access of the citizen to public interest information through technological intermediation (Milestone 4), trainings (Milestone 5), and crowd sourcing of ideas (Milestone 7).

STATUS

Midterm: Limited

The completion of this commitment at midterm was limited, with the first three milestones completed. MCPDC monitored the publication of the 20 public interest information documents stipulated in the Memorandum across 1,800 public institutions and public authorities (reaching approximately 94% of the designated public institutions and public authorities), and in August 2016 published the results of this verification. [7] After several consultations with members of the civil society, [8] the implementation norms for the application of the law 544/2001 (HG 123/2002) were updated in July 2016 to standardize and digitalize the Freedom of Information process. Finally, a Practical guide for sustainable measures to promote local governance based on transparency and integrity [9] was published and disseminated with the help of the Embassy of the Kingdom of the Netherlands to 4,000 local public authorities and remains available online on the MCPDC’s website.

End-of-term: Limited

Implementation of Milestone 4, developing an access to information platform similar to AskTheEU, has not started and is not included in the fourth national action plan. MCDPC had set up SIPOCA 35—an EU cofunded project to achieve, among others, Milestone 4. [10] The financing of SIPOCA 35 was delayed, the government changed, MCPDC was dissolved, and SGG took over the management of the project in July 2018. Several interviewees stated that the project was not well designed and budgeted, and thus not implementable in its original form. [11] Concurrently, the SGG did not attempt to find synergies [12] with http://www.NuVaSuparati.info—a platform with a similar aim, created by the civil society. [13]

Milestone 5, training sessions for public servants in charge of applying law 544/2001, was partially completed and carried over to the fourth national action plan. According to the 2018 government’s self-assessment report, two trainings for public servants charged with the application of the law were conducted in November 2017. According to the SGG representative, on 30 and 31 of October 2018, the SGG organized two discussions series with representatives of the public administration and civil society on the deficiencies in the implementation of laws 544 and 52, as well as on the potential for harmonizing the implementation. [14]

Milestone 6 was partially completed and carried over to the fourth national action plan. According to the SGG representative, limited resources and high political turnover did not allow the SGG to monitor the implementation of the Memorandum on a continuous basis at the level of the entire executive. [15] Instead, the MCPDS and the SGG conducted seven rounds of (in-house) monitoring on a smaller sample of public agencies— the central public authorities, their subordinates, and autonomous agencies. [16] After each monitoring round, the SGG officially asked the institutions that were lagging to address their deficiencies (e.g. address, budget, CV). [17] The maps created after each monitoring were presented in two sessions of government (in December 2017, and in December 2018), and were made publicly available in November 2018, on the website of the SGG. [18]

Milestone 7 was not started and was not carried forward to the fourth national action plan. According to the SGG representative, this milestone does not fit their vision, while other actions will better serve the goal of the commitment. [19]

Did it Open Government?

Access to information: Marginal

The completion of Milestone 1 (i.e. the monitoring of the implementation of the Memorandum across 1,800 public institutions and public authorities, which the MCPDC published in August 2016) offered a first benchmark for institutional transparency. However, this monitoring was not done on a continuous basis to allow for the measurement of the dynamics in institutional transparency. [20]

For the purpose of creating maps of good practice for displaying public interest information, MCPDS and the SGG conducted seven rounds of monitoring of the implementation of the Memorandum at the level of the central authorities, their subordinates, and autonomous agencies. The progress booked after each round is shown in the report of the SGG published in November 2018. [21] According to the SGG representative, the completion of Milestone 6 in iterated steps has succeeded in stimulating central authorities to conform to the standards. After each monitoring round, the SGG officially asked the institutions that were lagging behind in the publication of relevant information to address their deficiencies. [22] Nevertheless, the Memorandum is not legally binding and the pressure the SGG exerted through its monitoring rounds was focused only on the central administration, their subordinates and autonomous agencies. According to an SGG representative, by selectively monitoring the implementation of the Memorandum on this smaller sample of public agencies, the SGG could propose the expansion of the standards to the local administration. According to the SGG representative, the local administration has a great deal of decisional independence and local funds to administer, and thus should also be monitored and encouraged to publish public interest information. [23]

The changes in the application norms of law 544/2001 and development of the Practical guide for sustainable measures to promote local governance based on transparency and integrity encouraged the digitization of public interest information, of its offering and of the payment thereof, imposed format standards, cost standards, and specific timelines for FOI requests to prevent abusive practices and designated deadlines for the annual publication of activity reports. Factually, through the completion Milestones 2 and 3, the possibility that public institutions do not publish public interest information due to lack of know-how of what to publish and how to publish it was removed. Nevertheless, the SGG has no statistics on the extent to which the Practical guide for sustainable measures to promote local governance based on transparency and integrity is used.

Though Milestone 5 was completed, there are no statistics to show whether the trainings of public servants charged with the application of law 544/2001 were sufficient to ensure the desired implementation of the law.

Finally, Milestones 4 and 7 were not started. Overall, these observations lead to this commitment being assessed as a marginally improving citizens’ access to public interest information.

Carried forward?

Parts of this commitment are carried forward in the 2018–2020 national action plan as Commitment 6: “Extending standards on access to public information at the level of local public authorities.” In particular, monitoring of the implementation of the Memorandum twice a year and doing trainings of public servants charged with the application of law 544/2001 twice a year are mentioned as action points 6.1 and 6.4. The SGG wishes to use the conclusions of the in-house monitoring to formalize the extension of the standards of the Memorandum to the local administration. [24]

[1] Law 544/2001 (amended 17 July 2016) on the free access to public interest information is available [in Romanian] at https://goo.gl/gQE9oB. Article 2b of 544/2001 states that public interest information is defined as “any information regarding the activities of, or which results from the activities of a public authority or public institution, regardless of the manner in which this information is shared or expressed”. Article 3 directs public authorities and public institutions to “provide public interest information pro-actively (ex officio) or upon request, through their Public Relations department or thorough a designated individual”.

[2] “M-am decis să mă implic”, Academia de Advocacy, 2015, available [in Romanian] at https://goo.gl/HmvsWc.

[3] “Transparența insituțională în România și Republica Moldova: Studiu asupra respectării legilor 544/2001 și 982/2000”, Romanian Academic Society, 2016, available [in Romanian] at https://goo.gl/Yefca7.

[4] “Consolidarea unui system efiecient de control pentru prevenirea fraudelor cu fonduri europene în noile membre, în perioada 2014–2020: Romania, Bulgaria, Ungaria, Croatia”, The Institute for Public Policies, 2015, available [in Romanian] at https://goo.gl/sCzYf9.

[5] “Creşterea Transparenţei Şi Standardizarea Afişării Informaţiilor De Interes Public”, Ministry of Public Consultation and Civic Dialogue, Chancellery of the Prime Minister, Secretariat General of the Government, Ministry of Regional Development and Public Administration, Ministry of Internal Affairs, Ministry of Public Finance, and National Agency of Public Procurements, 2016, available [in Romanian] at https://goo.gl/tj1Xz9.

[6] The information to be provided according to the Memorandum falls into three categories: (1) information about the institution (legislation, leadership, organization, programs and strategies, reports and studies), (2) public interest information (e.g. FOI forms and requests, budget, financial balances, public procurement), and (3) contact information (e.g. contact, address, email, opening time).

[7] Monitorizare Memorandum, 17 November 2016, available [in Romanian] at https://goo.gl/MqEUj8.

[8] “Ministerul pentru Consultare Civica si Dialog va propune in Guvern modificarea normelor de aplicare a legii accesului la informatii de interes public”, MCPDC, 2016, available [in Romanian] at https://goo.gl/8nQZgu.

[9] “Practical guide for sustainable measures to promote local governance based on transparency and integrity” MCPDC, 2016, available [in Romanian] at https://goo.gl/fZmBYo.

[10] “Guvernare transparentă, deschisă și participativă – standardizare, armonizare, dialog îmbunătățit – proiect SIPOCA 35”, MCPDS, 2018, available [in Romanian] at https://goo.gl/bXWBqR.

[11] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018, and Radu Puchiu, former Secretary of State in charge of OGP, interview by IRM researcher on 13 November 2018.

[12] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[13] Bogdan Manolea, APTI, interview by IRM researcher on 8 November 2018.

[14] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[15] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[16] The MPCDS has two information notes in December 2017 and January 2018 (available [in Romanian] at https://goo.gl/Gw2gkf and https://goo.gl/iVVhnS) in which the Minister Gabriel Petrea stated that such periodic evaluations were conducted and found that 87.8% ministries who signed the Memorandum conformed to the standards of the Memorandum in December 2017 and 90.95% of the local governments who signed the Memorandum conformed in January 2018.

[17] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[18] “Analiza rezultatelor procesului de monitorizare a autorităților și instituțiilor publice cu privire la afișarea din oficiu standardizată a informațiilor de interes public în perioada 2017–2018”, SGG, 2018, available [in Romanian] at https://goo.gl/KTkKc9.

[19] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[20] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[21] “Analiza rezultatelor procesului de monitorizare a autorităților și instituțiilor publice cu privire la afișarea din oficiu standardizată a informațiilor de interes public în perioada 2017–2018”, SGG, 2018, available [in Romanian] at https://goo.gl/KTkKc9.

[22] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[23] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.

[24] Madalina Mitroi, SGG, interview by IRM researcher on 6 November 2018.