Amendments to the Law on Free Access to Information of Public Importance (RS0020)

THEME: Improving Access to Information of Public Importance; COMMITMENT 7: Amendments to the Law on Free Access to Information of Public Importance; Status quo or problem addressed by the commitment: The Law on Free Access to Information of Public Importance is currently being revised. The current revision aims to address certain deficiencies that have been observed in the implementation of the Law in practice. The Law on Free Access to Information of Public Importance dates back to 2004. The Law has been praised as excellent in terms of its legislative arrangements, but its implementation in practice has revealed certain deficiencies. The Commissioner for Information of Public Importance received a similar number of complaints in 2014 and 2015 – about 4,000 – mostly in cases of the so-called administrative silence. This shows that the legal enforcement mechanisms cannot be fully implemented in practice. In addition, the supervisory authority in charge of implementation of this Law, the Administrative Inspectorate, has rarely used the option of imposing penalties for violations of the Law. Indeed, in recent years, entities that broke the Law were allowed to go unpunished on several occasions. The last two years saw progress in this regard, with the institution of infringement proceedings against a number of entities. However, taking into account that the Commissioner annually submits to Administrative inspection between 300 and 400 initiatives to initiate infringement proceedings, in cases of drastic violations of the right to free access to information of public interest, when the public authorities do not act according to the decision of the Commissioner, the number of infringement proceedings that are actually instituted remains very low. As the Law is currently being revised, these and other shortcomings might be eliminated in order to raise awareness of entities subject to the Law on Free Access to Information of Public Importance, as a constitutional category. Furthermore, the Action Plan on Development of e-Government also envisages the establishment of a legislative framework for open data and reuse of public sector information (to transpose the European Directive on Reuse of Public Sector Information) in the coming years. Main objective: Improved access to information; The future Law on Free Access to Information of Public Importance must include the following provisions: 1. To ensure efficient oversight of lawfulness of operations of public administration bodies and other entities subject to administrative oversight and inspection for violations of the right of access to information of public importance, in compliance with the principle of independence of oversight authorities and the principles of good governance 2. To introduce the obligation to obtain an opinion of the Commissioner for Information of Public Importance and Personal Data Protection in the process of passing regulations, to the extent that those regulations fall within the remit of this authority 3. To improve the situation regarding enforcement of decisions passed by the Commissioner for Information of Public Importance and Personal Data Protection 4. To bring the amount of fines in compliance with the Law on Misdemeanours and to establish a protective mechanism to ensure the achieved level of freedom of information cannot be reduced by other regulations 5. To impose a duty on the authorities subject to this Law to proactively publish information of public importance Brief description of commitment (140-character limit): It is necessary to amend the Law on Free Access to Information of Public Importance to ensure the right of access to information and time limits set by the law are respected. The duty to proactively publish information should also be introduced. OGP challenge addressed by the commitment: Strengthening public integrity; Relevance: Improvement in the access to information of public importance through amendments of the Law will ensure a higher level of freedom of information, which is also one of the core values of the Partnership. Also, genuine advocacy of improved public administration and fight against corruption must entail transparency in the work of public authorities, while lack of accountability for denial of access information to the public encourages violations of the Law, as can be seen from the increasing number of complaints lodged with the Commissioner. The above amendments to the Law would ensure that these issues are properly addressed. Ambition: Amendments to the Law on Free Access to Information of Public Importance would address the issues which arose in the implementation of this Law in practice. Proper oversight of implementation of the Law and of the institute of enforcement of the Commissioner’s decisions would improve the exercise of the right of access to information and would raise awareness of the importance of this right among the entities subject to this Law. In addition, amendments to the Law which would vest the Commissioner with the power to give opinions in the process of enactment of laws would ensure that the existing level of protection of rights is not reduced by other laws and regulations. Amendments to the Law regarding proactive publishing of information would help reduce the number of appeals filed to the Commissioner due to violations of the right to free access to information of public interest, and improve respect for the right of access to information, which is also enshrined in the Constitution.

For Commitment details, please see Serbia Mid-Term Report 2016-2018 (Year 1).

7. Amend Access to Information Law

Commitment Aim:

This commitment aimed to increase the responsiveness of public authorities to freedom of information (FoI) requests and improve the sanctioning of noncompliance. Furthermore, it intended to strengthen the role of the Commissioner for Information of Public Importance and Personal Data Protection and enhance general transparency through proactive publication of information. To achieve the aim, the Government committed to amend the Law on Free Access to Information of Public Importance, including imposing fines for violations of the right to information.

Status

Midterm: Limited

A special governmental working group drafted the amendments but did not make them publicly available by midterm. Civil society stakeholders complained about the lack of openness of the working group and expressed their discontent with the lack of timeliness and transparency of implementation.

End-of-Term: Limited

The implementation of this commitment has remained limited because the governmental working group has not yet finalized the Draft Law Amending the Law on Free Access to Information of Public Importance. In February 2018, the MPALSG published a concept document, laying out the basis for the planned amendments, and opened a ten-day online consultation process on the concept. [Note42: The call is available at http://mduls.gov.rs/aktivnosti-obavestenja.php#a113] The Office for Cooperation with Civil Society (OCCS) published the same call, [Note43: Available at https://bit.ly/2Ql6KHY ] thus increasing its visibility to civil society. A representative of MPALSG stated in an interview with the IRM Researcher that they received around 100 comments. [Note44: Ivan Kovacevic, MDULS, Interview with IRM Researcher, 13 September 2018. ] The online consultations allowed only for collecting comments via email, without enabling a platform for dialogue and exchange of viewpoints.

In March 2018, following consultations and further drafting of the amendments, the MPALSG published an invitation to participate in an official public debate on the Draft Amendments to the Law on Free Access to Information of Public Importance. [Note45: Available at http://mduls.gov.rs/aktivnosti-obavestenja.php#a125] The call contained all relevant information and documents, including the program for the debate, thus allowing the prospective participants to time to prepare. The same call was published on the E-government [Note46: Available at http://javnerasprave.euprava.gov.rs/javna-rasprava/145 ] web page, while the OCCS published a call for a round table event planned for March as part of the debate. [Note47: Available at https://bit.ly/2MdzY8E ] Therefore, a wide range of stakeholders were able to see the calls and partake either in the virtual commenting or the physical meeting. The debate lasted 29 days.

According to the report on the debate published by the MPALSG, [Note48: Available at http://mduls.gov.rs/doc/rasprave/220318/Izvestaj.docx ] a roundtable discussion lasting several hours was organized as part of the public debate. Representatives of more than 30 CSOs presented their views, and comments and suggestions, together with the Deputy Commissioner for Information of Public Importance and Personal Data Protection, parliamentarians, judges of the Administrative Court, and other representatives of state bodies. The report summarizes comments without addressing inputs from individuals or providing feedback on how they were treated. A representative of a participating CSO did not know how the comments had been treated nor what was currently happening with the amendments. [Note49: Vladimir Mihajlovic, CEP, Interview with IRM Researcher, 11 September 2018.] Therefore, the outcome of the consultation process remains unknown to the public.

Civil society representatives have pointed to several shortcomings in the draft amendments. First, the new provisions exempted enterprises partially owned by the state from the scope of this law, given that they are covered by the current law, and in view of the fact that they are financed by the tax payers, this has been a step back. Second, the amendments do not adequately address the problem of public bodies failing to respond to freedom of information requests. During the public debate process, 65 CSOs (including media organizations), led by the Center for Research, Transparency and Accountability (CRTA), signed a statement calling on the Government to 'refrain from adopting legal solutions that hamper citizens' free access to information rights.' [Note50: The statement is available at http://crta.rs/wp-content/uploads/2018/04/Detaljno-obrazlozenje-Odbrani-... ] A legal analysis elaborating on the problems was included with the statement. The group launched a web page [Note51: http://odbrani.pravona.info/podrska.php] to promote this initiative and called on citizens to join the petition and submit their comments to the government.

Yet a new proposal to allow the public bodies to initiate administrative disputes against the Commissioner's decisions has threatened the right to information and opened the door to massive abuse. The Commissioner voiced a significant criticism [Note52: Press Release of the Commissioner for Information of Public Importance, 'Draft Law on Amendments to the Law on Free Access to Information is not in accordance with the proclaimed goals', 11 April 2018, available at https://bit.ly/2O461to ] of the proposed solutions, characterizing them as conflicting with the initially proclaimed goals of promoting the right to information and removing legal uncertainty and obstacles noted in the practice. In a separate statement, the Commissioner called the Government's analysis of the current implementation of the law as 'scandalous.' [Note53: Press Release of the Commissioner for Information of Public Importance from 13 March 2018 is available at https://bit.ly/2FASk4T ] The Administrative Court supported civil society's view that administrative disputes should not be allowed against the Commissioner's decisions, which was both articulated in the Court's remarks and in the recommendations it provided to the Government working group. [Note54: Administrative Court, Remarks and Recommendations to the Draft Law Amending and Supplementing the Law on Free Access to Information of Public Importance, 19 April 2018, available at http://www.up.sud.rs/uploads/useruploads/Documents/min.dr%C5%BEavne%20up... ]

A MPALSG representative confirmed that they would soon issue a new version of the draft amendments, which would largely rely on the civil society's comments, and in some cases even incorporate their proposals word-for-word. [Note55: Ivan Kovacevic, MPALSG, Interview with IRM Researcher, 13 September 2018.] Since the abovementioned public debate brought around 500 comments from CSOs and citizens, according to the representative, a high number of identical comments prompted them to reexamine the draft to try to reach a consensus among stakeholders. As stated by the representative, the working group realized that several crucial questions require additional meetings with responsible institutions, such as the courts, the national bank, and the Commissioner for Information of Public Importance. This is why the amendments have not yet been enacted. MPALSG does not plan to open a new round of consultations with civil society following the finalization of the draft. [Note56: Ibid.]

Representatives of the Office of the Commissioner for Information of Public Importance think that the proposed amendments threaten to constrict the right to information. [Note57: Stanojla Mandic and Slavoljupka Popovic, Office of the Commisioner for Information of Public Importance and Personal Data Protection, Interview with IRM Researcher, 19 September 2018.] Furthermore, their opinion is that political pressure is behind the changes. [Note58: Ibid.] A recent roundtable, with the Commissioner, Deputy Commissioner, university professors, representatives of judiciary, CSOs, and other experts concluded that lack of political will is one of the main threats to the implementation of the current law. [Note59: The press release is available at https://bit.ly/2IjYtAF ]

Did It Open Government?

Access to Information: Did not change

Public Accountability: Did not change

Given that the law has not yet been amended, and that the contents of the final text are still unknown, the IRM researcher assesses no change in government efforts to increase access to information and public accountability. Citizens can exercise their right to information through the existing law, though shortcomings remain, including problems with compliance, improper sanctioning, and the powers of the Commissioner being limited.

The IRM Researcher commends the decision of the working group to reconsider the text of the Draft Law to reach a wider social consensus. However, considering that the initiative dates from 2012, this readiness comes late in a long and exhausting process of public debate on these amendments. To conclude, as no other activities stemming from this commitment have changed the work of the administration, the status quo for opening government has not changed.

Carried Forward?

The Government is still drafting the next Action Plan. Interviewed stakeholders confirmed that this commitment will be carried forward almost in its entirety. [Note60: Dragana Brajovic and Ivan Kovacevic, MPALSG, Interview with IRM Researcher, 13 September 2018; Sanja Nasevski, UNDP, interview with IRM Researcher, 7 September 2018.]