We urge that all intelligence and security data not be exempt from the application of the Law on Free Access to Information, as well as that the provisions according to which former public officials are not subject to exceptions to privacy protection and tax secret protection be reinstated.
Draft Law on Free Access to Information established by the Government on March 7, 2023 contains important negative differences compared to the previous draft, which was withdrawn from the parliamentary procedure upon forming of the 43rd Government. Namely, the draft exempts from the application of the Law an information that represents intelligence and security data that is collected, processed, used, exchanged, stored and protected in accordance with the laws that regulate the work of the bodies that make up the intelligence and security sector.
In addition, all persons that had a status of a public official since the introduction of the legally prescribed obligation to submit reports on income and property in connection with the exercise of public office, as well as income, property and conflict of interest of those persons or persons related to them, regardless of whether they are members of a joint household, are exempt from restriction of access to information due to the protection of personal data and the protection of tax secrecy. Previous version of the Law contained this provision which is now replaced in a manner that restrictions to the access to information do not refer only to current public official and persons for whom public officials are due to submit report on income and property.
These provisions can significantly foil some positive novelties in the draft Law, which relate to a greater volume of proactive publishing of information, especially those concerning the budget implementation, the obligation to create a catalogue of authorities – reporting entities to the Law, and a number of other decisions that are product of the efforts of civil society organizations, which submit the largest number of requests for free access to information.
Absolute exemption of the intelligence and security sector data from the application of the Law has no justified basis, especially considering that in the second article, the possibility is left for an authority to restrict access to information or part thereof, “after carrying out the harm test and public interest test, if it is in the interest of security , defence, foreign, monetary and economic policy of Montenegro, which is marked with the appropriate level of secrecy in accordance with the laws regulating the field of data secrecy”.
We also remind the Government that the public debate on the draft amendments to the Law on Free Access to Information, established by the 42nd Government of Zdravko Krivokapić, was held in June 2021, thus, nearly two years ago. In the meantime, the Government did not submit the revised draft for public consultation, and it did not offer an explanation why these important amendments, which the European Commission insists on, were “on hold” for so long, and according to the earlier version of the draft law, their implementation was supposed to start in January 2023. According to the new draft law, its implementation will begin six months after its entry into force, which further extends the deadlines.
For this reason, we urge the Government to abolish important negative differences compared to the previous draft law, which was withdrawn from the parliamentary procedure, and which to a greater extent acknowledged the arguments of NGOs that took part in the previously held public debate.
Stevo Muk
President of the Managing Board of Institute Alternative
Vanja Ćalović Marković
Director of the Network for Affirmation of NGO Sector
