Public documents, closed for the public

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PRISTINA: 04.12.2018 Kosovo’s public institutions are among the only ones in the region who do not recognize the obligation for selection of documents into public and confidential.

Although the law on access to public documents foresees that at the time of the creation of a document, public bodies should set a clause if it is public or confidential; this practice is not implemented in practice.

For journalists and civil society, the lack of classification and refusal to provide access to public documents, has created an ongoing problem in carrying out researches and analysis.

The Kosovan government claims that only two requests have yet to be answered.

However, the journalist community believes that journalists do not apply for access to public documents because of a broad perception that they will not receive an answer.

Besnik Krasniqi, journalist at Koha Ditore, says that the institutions are characterized by a very low degree of transparency, while the Law on Access to Public Documents is implemented at the lowest level.

“This conclusion is not based solely on my experience, but also upon the allegations of many of my colleagues with whom we share the same profession. Further more, many credible local and international reports point to the same problem, including here the report about Kosovo, which is published every year by the European Commission, “he said.

Moreover, the already made requests still remain unanswered.

“Journalists insist, continually while addressing publicly about the violation of this right which is guaranteed by the Constitution and law. And that insist almost ends there. This is because journalists do not have the luxury to follow all the bureaucratic procedures provided by the law, until the right for access to a particular document is achieved. By the way, a very small number of media organizations have engaged lawyers who can follow this chain of complaints – which is, to address the problem at the office of the Ombudsman, and then at the courts” highlighted Krasniqi.

Data shows that since the coming of Ramush Haradinaj to power, his government received 53 requests for access to public documents, otherwise a very small number compared to the number of journalists who cover the work of the government.

“From the total number of received requests, after the view, full access was allowed to 36 requests, one request received partial access, 2 requests are still being viewed, and one request is unanswered” responded government’s spokeswoman, Donjeta Gashi.

Government work is being monitored by tens of journalists, while the lack of requests for access indicates that journalists have found other ways to get the documents needed for stories.

“In the absence of pursuing of this right, journalists lose a lot of time while providing the information required by the institutions. Journalists often use “clandestine routes” to get to documents that institutions do not want to share with the public. And, normally, it takes time and a network of resources within the institutions, “says Besnik Krasniqi.

Ministry of Infrastructure is the most closed institution

For years ‘Fol Movement’ has overseen public contracts and public spending. This organization concluded that there are a lot of problems with institutions to obtain official documents.

“Based on the demands we made, I can say that some are really correct and cooperative, while some institutions are far from improving compared with the past years,” says Mergime Demolli Nimani, at Fol organization.

She mentioned some concrete cases when the organization has had problems accessing the required documents.

“For us as FOL, the main obstacle in carrying out our work has been the Ministry of Infrastructure. This is due to the fact that during the monitoring of procurement procedures, very often we have requested access to different tender files but all have been rejected” said Demolli.

Major contracts, like the new highway toward Gjilan is expected to consume millions of euro that belong to Kosovo’s government.

This contract signed by the Ministry of Infrastructure under, Pal Lekaj continues to be partially open.

Although the law on access to documents stipulates that document seekers choose the form of access this contract has been allowed to Movement Fol only in certain parts.

“The Ministry of Infrastructure who initially rejected the request, then after the appeal to the Ombudsman and after we publicly declared that we have been rejected from access to the tender file for the construction of the highway Pristine-Gjilan-Dheu i Bardhë, they allowed us a partial access, so they did not gave us all the required documents. Also another request we sent is not yet answered “says Demolli Nimani.

The Ombudsman has a role in overseeing the law on access to public documents.

After refusing or not responding by the institutions, journalists and the public have the right to complain at this institution.

Since the beginning of the year up to now, 57 complaints have been viewed by this institution, all of them regarding the refusal of access to public documents.

“From January 2018 up to now, 57 complaints have been received, five of them were not suitable for acceptation” says Arjola Caka, from the Ombudsman Office.

Even this institution is convinced that access to the major contracts and projects is the main problem when accessing the public documents.

“According to our findings while investigating the complaints filed for access to public documents, we noticed that difficulties in accessing public documents are mostly related with public contracts of big projects,” added Caka.

According to Mergime Demolli Nimani, the state is very interested in hiding big contracts.

“Public contracts in most of the cases that we have monitored, especially the contracts that are worth millions, continue to remain closed”

Successful cases, only through courts

Kosovo institutions are obliged by court decisions to provide access to public documents in some cases.

The data show that the Government of Kosovo was obliged to create access to the bills of ex-Prime Minister, Hashim Thaqi for the need of Balkan Network for Investigative Journalism, BIRN.

After eight years, this organization has secured the necessary information that was released during this summer.

The Ombudsman has listed as stories of success, two BIRN lawsuits against the government. In these cases, though court decision, BIRN had gained access to spending bills, while Movement FOL filed a lawsuit against Ministry of Transportation related to the highway Morine-Merdare. GAP’s lawsuit related to the contract for distribution and the lawsuit of Union Federation of Pensioners against Ministry of Labor.

In January this year, GAP Institute had received the verdict by the Basic Court in Prishtina, which approved as grounded the GAP Institute’s accusation for not allowing access to public documents.

The Court found that the Ministry of Economic Development and KEC violated Article 41 of the Constitution and the Law on Access to Public Documents when they did not allow access to KEDS privatization assets and tender files for the Kosovo’s power plant ‘Kosova e Re’.

The Court concluded that even the unfinished documents are public documents in which access should be allowed, and has considered as unreasonable the response of Ministry of Economic Development, that the files of privatization falls into the category of confidential documents.

Furthermore, the court concluded that KEC has also violated the Law on Access to Public Documents when it refused to respond to the requests for transparency, arguing that the Law on Access to Public Documents does not apply for public enterprises.

This verdict obliged the Ministry of Economic Development to allow access within 30 days to privatized KEDS assets and tender documents related to the power plant ‘Kosova e Re’.

This verdict was rules only four and a half years after filing the lawsuit, while according to Berat Thaci from this organization, is overdue, given that during this period the privatization process of KEDS assets was completed and the asset list was made public after privatization.

“It is noteworthy that four hydropower plants were included in the KEDS privatization asset list, and their sale was kept secret from the public and the Kosovo’s Assembly. The GAP Institute and KOSID (Kosovo’s Civil Society Consortium for Sustainable Development) estimate that if access was allowed to KEDS assets at the time when the request was made, it would have prevented the damage done to the public interest. At the same time, we are sorry that after all these facts, the prosecution did not saw it as reasonable to sue the privatization process of KEDS” concluded Thaqi.

Author: Donika Voca Gashi


Association of Journalists of Kosovo , Pristina, 04/12/2018