The holiday that we have been “celebrating” for fifteen years, The International Day for Universal Access to Information, was marked in Serbia last week, at the same time while we are waiting for the change of the law that regulates access to information. Civil society organizations believe that the proposed solutions are inadequate, and the analysis shows that the information in the future could come months after sending FOIA.
Exclusion of some institutions from the supervision of the Commissioner, longer time to act on complaints, lack of decision-making in regards to the public interest – these are some of the changes anticipated if Serbia approves changes of the Law on Free Access to Information of Public Importance.
The current Commissioner for Information of Public Importance, Milan Marinovic, sees the reforms as a good thing. While marking The International Day for Universal Access to Information, Marinovic said that the modifications will contribute to a more efficient practice when it comes to the right to information. As he said, citizens will get information from the authorities faster and easier.
Journalists’ associations and civil society organizations do not agree with him.
After the first draft was published at the end of May this year, a group of organizations raised objections to the proposed solutions.
“We especially emphasize that the introduction of new solutions that reduce the achieved level of the right to access information and its protection would be not only bad but also unconstitutional,” the statement holds.
They added that the Ministry of Public Administration and Local Self-Government (MDULS) formed the working group without public involvement and that due to the difficult access to the text of the draft, civil society representatives presented their proposals late, but most of them were not even included in the Draft Amendments to the Law.
They added that this draft won’t solve the problems detected earlier.
The public’s right to know: what can change
One of the planned changes is the additional exclusion of institutions from the competence of the Commissioner.
If we approve the law amendments, it will not be possible to file an appeal to the Commissioner against the rescript of the National Bank of Serbia (NBS). If this institution does not respond to the FOIA request, an administrative dispute may be initiated. This way, NBS was equated with the Government, the National Assembly, the Supreme Cout, Constitutional Court, and the Republic Public Prosecutor.
Data from the Commissioner’s office show that the media, citizens, and the civil sector used the opportunity to appeal against rescripts of the NBS. From March 2013 to the beginning of September this year, more than 100 complaints were submitted to the Commissioner due to the failure of the authorities to act or submit the requested information. Most of the information they were looking for had to do with spending money: salaries, donations, and sponsorships.
In some cases, there was no response from the NBS, while they appealed the decision.
If the proposed changes are adopted, the Commissioner will no longer decide on this.
If these changes are adopted, the Commissioner will be able to initiate misdemeanor proceedings.
The analysis of the changes published on the MDULS website also states that the current version of Law leaves the probability of misuse. It is also stated that a large number of applicants do not file a complaint to the Commissioner, but initiate misdemeanor proceedings themselves. This is also mentioned in the annual report of the Commissioner.
Current law provides the possibility of paying the imposition and collection of fines.
The person in charge of responding to FOIA requests will pay fines up to 50 thousand dinars if, among other things, he/she refuses to receive the request, does not act upon it, or submits incomplete or inaccurate information, does not act upon the Commissioner’s decision.
According to the data NUNS obtained from the Misdemeanor Court in Belgrade, from the beginning of 2018 till the end of August, 36 disputes related to FOIA requests were initiated. Disputes were initiated due to non-compliance with the received request, two because someone’s right regarding access to information was disabled, two because The Commissioner was not allowed to inspect the documents.
Information could come months after
One of the proposed changes is that the Commissioner is given twice as much time to resolve the appeal. The deadline was extended from 30 to 60 days. That means that some information could come months later.
If, for example, you send a FOIA request on June 1st, the institution is bound to respond within 15 days (except in the case when, due to the volume of information, it immediately extends the deadline for response to 40 days). If they do not reply, you can file a complaint to the Commissioner starting June 17th. He has up to 60 days to act on it. So he can, for example, require the institution to answer you on August 17, and they have a deadline for that.
This would mean that you can get the information you requested on June 1st up to three months later, in September.
This is valid if the Commissioner does not revoke the decision and order the institution to respond again. What this means: The Commissioner can annul the decision by which the institution refused to answer you. Then the institution rules again, and if they reject your FOIA request one more time, you can, again, appeal to the Commissioner. The analysis of the Center for Investigative Journalism of Serbia (CINS) showed that the Commissioner is increasingly asking the institutions to decide again on the FOIA request, so in the last two years the number of such decisions has almost doubled.
This prolongs the process of obtaining information of public importance and potentially loses relevance.
What we wouldn’t know without FOIA
Some of the biggest journalistic discoveries in Serbia were made specifically because of access to information.
How many medical ventilators are there in Serbia at the beginning of the epidemic, how many people have been vaccinated, as well as the information that the court postponed the imprisonment of supporter Aleksandar Stankovic, called Sale Mutavi, 12 times, and also that some Belgrade ambulance patients were left without medical care – these are just some from a discovery that would remain hidden from the public if there weren’t for FOIA requests.
The article was created as part of the project “Improving Dialogue between Journalists’ Associations and Parliaments in the Western Balkans for a Stronger Civil Sector”, funded by the Swedish International Development Cooperation Agency (Sida) and the Balkan Civil Society Development Network (BCSDN).
The content of this article, as well as the information and views presented, do not represent the official views and opinions of Sida and BCSDN. Responsibility for the information and views expressed in this text is entirely copyrighted.