In our comments on the Draft Law on Free Access to Information we pointed out that certain provisions, imprecisely determined restrictions such as trade secret or protection of intellectual property, as well as unclear dynamics of proactively publishing of information of public importance, can thwart deviation from previous bad implementation of this act.
Institute Alternative took part in the public debate and the round table on amendments to the Law on Free Access to Information (FOI) and presented key recommendations for recovery of public sector transparency.
For the legal security of the implementation of the innovated law, it is crucial to prescribe the obligation to compile and regularly update the catalog of public state authorities that subject to obligations related to free access to information (catalog of those obliged to apply the FOI Law). This will avoid situations in future, which Institute Alternative has found itself several times, and that is that a state authority, like a majority state-owned company, claimed that is not obliged to apply the FOI Law and that we are arguing before the Administrative Court.
This Law kept trade secret and protection of intellectual property as a basis for restricting access to information. The problem is that meaning of these terms is drown from a number of other laws that mostly defines them in the context of private sector. Consistent implementation of these definitions to the public sector, and in the context of the implementation of Law on Free Access to Information, would make the very spirit of free access to information meaningless and derogate from the key principles of this umbrella Law.
In our analysis “Trade secret of public enterprises” from 2019, we tried to count all laws that on different way define trade secret (nine of them). We illustrated the confusion created by introducing this restriction during the amendments to the Law on Free Access to Information in 2017. In order to prevent the internal acts of certain bodies from derogating from the provisions of the Law on Free Access to Information (as did and do some companies in majority state ownership, as if they were private ) we believe that a possible solution should be sought in a way that clearly defines trade secret. In the spirit of this Law, trade secret may possibly include only information that has commercial value, contains undisclosed knowledge, inventions, achievements (innovations), which did not arise within the provision of a certain public service and which do not relate to the disposal of funds from public revenues and state property. It may also include information for which the obligation of proactive publication in other special laws is not prescribed, ie, for the publication of which there is no predominant public interest.
We also consider that restriction of access to information related to the initiation and conduct of ex officio disciplinary, administrative and judicial proceedings, and the termination of these proceedings, is too broad. We believe that such an exception would be a kind of “autogol” to free access to information, since almost every action of public bodies is an administrative procedure.
In the part concerning the proactive publishing, we believe that the Law on should prescribe the dynamics of publishing all documents subject to the obligation of proactive publishing (lists of employees and public officials and acts on internal organisation, contracts, annexes to contracts, etc). Irregular updating is the fate of most databases in Montenegro. We believe that the Law should precisely ensure that these documents are published or updated within seven days of adoption and/or change.
Also, it should be granted that information on grants, subsidies, loans, sponsorships, donations, information on individual payments to individuals and legal entities are published at least on a monthly basis, by the tenth day of the current month for the previous month. There is no justification for quarterly reporting on these issues. The authorities have already proven that they are able to produce this information even on a weekly basis, according to the Law on the Financing of Political Entities and Election Campaigns. In order to ensure full transparency, it is necessary that, in addition to information on individual distribution of funds to individuals or legal entities (tabular, as now provided) to publish the acts on the basis of which payment are made – contracts, invoices, warrants, decisions and other acts.
The exception exempting from the right to access to information funds allocated for social benefits, health care and unemployment should be deleted, as the authorities abuse it and reject requests for FOI, although the ways to protect this information are already prescribed in detail by another article and the Law on Protection of Personal Data. We would like to remind, under auspices of such an exception, data on expenditures from the current budgetary reserve are protected, among other things.
Detailed comments prepared by Institute Alternative are available on this link (in Montenegrin).
Stevo Muk
President of the Managing Board at Institute Alternative
