Access to Information Law (RS0039)

COMMITMENT 12: Amendments to the Law on Free Access to Information of Public
Importance
Ongoing - Q2 2019
Lead implementing agency Ministry of Public Administration and Local Self-Government -
MPALSG
Description of Commitment
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. It has been observed
in practice that there is a need to develop the Law in other
directions as well, since certain issues are not properly regulated
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or are not regulated at all. This includes in particular the issue of
proactive publishing of information by the authorities on their
websites, improving and increasing the transparency of data
published in the information booklets, expanding the scope of
persons subject to the law, clarifying the procedure for
appointment and removal from office, administrative
enforcement and other amendments which would
comprehensively regulate the application of the right to access
information of public importantce.
The Commissioner for Information of Public Importance
received a similar number of complaints in 2016 and 2017 –
about 3,500 – mostly in cases of the so-called administrative
silence. This shows that the legal enforcement mechanisms
cannot be fully implemented in practice.
However, the last two years saw progress in this regard, with the
institution of infringement proceedings against a number of
entities.
The Special Working Group on preparation of the Draft Law
Amending the Law on Free Access to Information of Public
Importance was formed on 3 November 2016, and many
meetings have been held with the competent authorities, as well
as with representatives of the Commissioner’s Office, at which
the Draft Law was endorsed. In compliance with the proclaimed
principles of transparency in the passing of regulations and
involvement of the non-governmental sector in the process, a
public consultation was held from 5 and 15 February 2018,
where representatives of the public and civil sectors made more
than 100 suggestions and proposals. A public debate was held
from 22 March to 19 April 2018. It included a Round Table
held on 27 March, which was attended, in addition to the
members of the Special Working Group, also by representatives
of state authorities, economic operators, academia and
professional associations, eminent experts in this field and
representatives of more than 30 civil society organisations.
Many suggestions and proposals were received, and it was
determined upon analysis that they can be grouped around a
certain number of Articles and proposed provisions. Taking into
account the importance of this law in the coming years, all
these comments will be discussed in great detail through written
or direct communication with the participants in the public
debate and the Draft Law will be finished and submitted to the
competent authorities for opinion and then presented to the
Government for adoption.
Main objective The Law on Free Access to Information of Public Importance
must be amended to ensure respect of the right to access
information and compliance with time limits set by the law. The
duty to proactively publish information shold also be
established.
The future Law on Free Access to Information of Public
Importance must include the following provisions:
1. 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
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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. 2. To expand the circle of authorites/persons subject to the law,
both newly founded and existing which have not been subject to
the law so far although their sphere of competences requires so;
3. 3. To reduce reasons for rejecting requests because of abuse of
rights specified in the Law, such as frequent submission of
requests and volume of information;
4. 4. To improve the selection procedure and termination of office
of the Commissioner, the position of the Deputy Commisisoner
and the Commissioner’s Office;
5. 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 laws, to the
extent that those regulations fall within the remit of this
authority;
6. To improve the situation regarding enforcement of decisions
passed by the Commissioner for Information of Public
Importance and Personal Data Protection;
7. 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;
8. To impose a duty on the authorities subject to this Law to
proactively publish information of public importance
How will this commitment
contribute to problem solving?
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.
The way in which this commitment
is relevant to further advancing
OGP values
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. The above
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amendments to the Law would ensure that these issues are
properly addressed.
Additional information
Activity with a verifiable
deliverable and completion date
Start Date: End Date:
1. Finalisation of the work on draft
amendments to the Law on Free
Access to Information of Public
Importance
Ongoing Q4 2018
2. Submission of the Draft Law to the
Government for review and adoption of
the Bill
Q1 2019 Q2 2019
Contact information
Name of a responsible person in
the implementing agency
Ivana Antić
Title, Department Assistant Minister, Sector for Human and Minority Rights and
Freedoms
Email and phone number ivana.antic@mduls.gov.rs , 011-2641-495
Other
actors
involved Administration
Special Working group on preparation of the Draft Law
Amending the Law on Free Access to Information of Public
Importance
Civil sector
organisations, private
sector, working
groups
CRTA – Centre for Research, Transparency and Accountability

11. Improving proactive transparency – Information Booklet

Language of the commitment as it appears in the action plan:

The planned amendments to the Law on Free Access to Information of Public Importance, namely its Article 39 and Article 3 that defines the concept of a public authority body and the concept of a government body within the meaning of this Law, to which category of authorities refers obligation to publish the Information Booklet, as well as amendments to the Instructions on Preparation of Information Booklets, will see the information contained in those Information Booklets reformatted with the aim of opening the data contained therein, improving proactive transparency and expanding the circle of administration bodies subject to the legal requirement of publishing Information Booklets.

This will entail: 1) Development of a single IT system to access, process and present the Information Booklet; 2) Designing a segment of an online platform that would serve as an Information Booklet, coupled with an obligation for public authorities to publish information booklets in PDF format; 3) Training of employees in government bodies for the use of a single IT system; 4) Piloting the use of the application; 5) Promotion of the application (single IT system) for the public, civil sector, business sector and the media. Effectiveness of the amendments to Article 39 of the Law on Free Access to Information of Public Importance would be delayed until the online platform is designed (until technical requirements are complied with).

Start Date: Ongoing

End Date: upon expiry of fourteen months of the date of when the new Instructions come into force

12. Amend Access to Information Law

Language of the commitment as it appears in the action plan:

Title: Amendments to the Law on Free Access to Information of Public Importance

The Law on Free Access to Information of Public Importance must be amended to ensure respect of the right to access information and compliance with time limits set by the law. The duty to proactively publish information shold also be established. 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 expand the circle of authorities/persons subject to the law, both newly founded and existing which have not been subject to the law so far although their sphere of competences requires so;
3. To reduce reasons for rejecting requests because of abuse of rights specified in the Law, such as frequent submission of requests and volume of information;
4. To improve the selection procedure and termination of office of the Commissioner, the position of the Deputy Commisisoner and the Commissioner’s Office;
5. 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 laws, to the extent that those regulations fall within the remit of this authority;
6. To improve the situation regarding enforcement of decisions passed by the Commissioner for Information of Public Importance and Personal Data Protection;
7. 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;
8. To impose a duty on the authorities subject to this Law to proactively publish information of public importance.

Start Date: Ongoing

End Date: Q2 2019

For full commitment text, please refer to the National Action Plan at https://www.opengovpartnership.org/wp-content/uploads/2019/01/Serbia_Action-Plan_2018-2020_EN.pdf

Context and Objectives

Although Serbia has long been among the global frontrunners in free access to information legislation, [142] issues such as low responsiveness of public authorities [143] to freedom of information (FoI) requests or improper legal definition along with enforcement of sanctions for noncompliance with the standards have persisted in practice. To illustrate, since 2005, the commissioner for Information of Public Importance and Personal Data Protection has received close to 35,000 complaints, out of which around 70% were cases of “administrative silence.” [144] Additional shortcomings relate to the legal obligation of public bodies to publish “information booklets” as a proactive transparency tool about the work of public authorities in a simple and citizen-friendly form. For example, booklets should contain data on organizational structure, responsible heads, budget of the body, public procurement, and similar, but a significant number of bodies fail to comply with this rule, despite prescribed misdemeanour measures. In 2017, only 23% of legally obliged authorities published their information booklets, [145] and almost a third of agencies and organizations formed by the government failed to regularly update them. [146]

This deficient implementation of the law has prompted civil society and the commissioner to advocate for amendments since 2012, and the government intends to push for these amendments through commitment 12, also an obligation under the Action Plan on Chapter 23 in the country’s accession negotiations with the EU. [147] Among other things, the amendments are supposed to include a provision on publishing open data e-booklets on a central web location, with strict content and deadlines, which is commitment 11. This commitment also requires the commissioner to pass new Instructions on Preparation and Publishing of Information Booklets and develop online software for inserting and publishing data.

Both of these commitments were incomplete and carried over from the previous action plan due to a long drawn-out debate on the amendments, which involved serious criticism by the civil society and that put all other activities on hold. [148] Though both commitments are relevant to the OGP value of access to information, commitment 12 is additionally related to strengthening accountability, as the law provides appeal mechanisms and legal remedies to the seekers of information. Both commitments are specific and allow verification of their completion.

In terms of potential impact, commitment 11 would oblige all authorities to publish and update the booklet, such that information on income and expenditures, public procurement, state aid, and other highly relevant data would become more accessible, consistent, complete, and updated across the entire public sector. The possibility of exporting data in open formats would make the booklets much easier to process, compare, and reuse. This would empower civil society, citizens, and other stakeholders to produce evidence-based findings by which to hold public authorities accountable.

The IRM researchers assessed the potential impact of commitment 12 as moderate considering that proposed amendments to the Law on Free Access to Information would expand the scope of bodies adhering to the law, [149] obliging a total of 385 public notaries and public enforcement officers [150] to provide access to information. Moreover, if implemented as written, the commitment would reduce the number of potential reasons for rejecting FoI requests, oblige law makers to obtain opinions of the Commissioner for Information of Public Importance and Personal Data Protection on draft laws within the remit of its authority, harmonize the monetary penalties with the Law on Misdemeanours, and strengthen the obligation of public bodies to proactively publish information of public importance. Application of all amendments combined would bring improvements in the scope of the law and help advance freedom of information.

However, at the time of writing of this report, interviewed stakeholders indicated that the last public version of proposed amendments brought controversial, potentially backsliding measures for open government. For example, some companies partially owned by the state would be exempted from the scope of public bodies, even though they possess considerable assets ^[151] and are financed by taxpayers. The Commissioner’s Office representatives stated that this is the most problematic type of public body in terms of compliance with the law, ^[152] and that they receive around 15% of all FoI requests in the country. ^[153] Additionally, the latest amendment proposals reduce the transparency of the National Bank of Serbia because information seekers would not be able to file a complaint to the commissioner in case this institution does not respond to information requests but would only be able to start administrative court proceedings. ^[154] Overall, stakeholders are in accord that the planned legal solutions would seriously limit the existing level of the right of the public to know. [155] Therefore, final impact would depend on how the law ends up being passed.

Next steps

The IRM researchers recommend proceeding with commitment 11 as planned. Civil society could raise awareness of other CSOs and journalists about the novelties related to e-booklets and how to use them. The aim should be to instigate greater demand for data and show opportunities for their (re)use, visualization, and so forth.

However, the amendments in commitment 12 should not continue until the MPALSG can open a new round of public debate on them. This debate should include a clear elaboration on the treatment of comments and reasons for their rejection. Once consensus with stakeholders is reached on the amendments, the OGP Working Group should add implementation milestones in the commitment design, which will target crucial challenges in implementation, such as training of the public notaries and enforcement officials on the new obligations the law has set.

12. Amend access to information law

Completion: Limited:

The process of amending the law was open, transparent, and participatory. During 2018, work on amendments included multiple meetings with stakeholders (governmental and non-governmental), [65] early public consultations, [66] an official public debate period including a round table event. [67] Following the end of the public debate, the Ministry of Public Administration and Local Self-Government (MPALSG) issued a report summarizing comments but without feedback on how they were treated. [68] At the time of writing of 2018-2020 Design Report (beginning of 2019), interviewed stakeholders indicated that proposed amendments had brought controversial, potentially backsliding measures for open government. In April 2019 the MPALSG collected opinions from 27 state administration bodies and European Commission, [69] finalized the draft law and published an outline of main changes in November 2019. [70] In the meantime, the new commissioner for public information, who took over the office in September 2019, sent additional comments on the draft. MPALSG decided to wait for the general elections in 2020 for the new government to decide on the proposals for new amendments and the draft’s approval. [71] At the end of the implementation period, the public was not aware of the state of the draft. [72] Around seven months following the end of the OGP action plan implementation period, MPALSG finalized the draft law and conducted a new public debate between 27 May and 16 June 2021. [73]