Non-governmental organisations point out absurdity in rejecting old requests based on new legal restrictions, while member of the Agency’s Senate, Radenko Lacmanović, warns that data can be declared tax and business secret for indefinite period of time.
Again everything can be hidden from the public.
This is a consequence of last year’s Amendments to the Law on Free Access to Information (LoFAI), on the basis of which state bodies increasingly often classify requested data as a business or tax secret for an indefinite period of time. The Agency for Personal Data Protection and Free Access to Information follows their lead when deciding on complaints.
Collocutors of Center for Investigative Journalism in Montenegro (CIN-CG) claim that the Agency, when deciding on complaints as a second-instance body, refers to new provisions even in the old cases initiated prior to May 2017 when the law was amended.
Legal Programme Coordinator at MANS, Vuk Janković, illustrates this with the case that this NGO initiated in 2014, when it requested from the Tax Administration records of conducted controls over “Montenegro Tabaco Company” Ltd Podgorica.
“In its response, the Tax Administration restricted access to information not by referring to the provisions of the LoFAI, but only to the Law on Tax Administration. We filed a complaint with the Agency at the end of March 2014 and it was only in January this year, after the expiration of all possible legal deadlines, that the Agency made a decision in which it refers to the new provision of the law, which at the time of filing the request or the complaint did not even exist ” , explains Janković.
In this way, according to him, the Agency has committed gross violations, since the latest amendments foresee that the proceeding initiated before the entry into force of these amendments, will be terminated pursuant to the earlier law.
“MANS then complained to the Administrative Court, which, deciding on the complaint, also rejected our allegations, ignoring the fact that the Agency was under an obligation to make a decision in accordance with the provisions of the earlier version of the LoFAI. We consider this court decision to be scandalous because the court should be among first to guarantee the protection from such a blatant violation of the law. Dissatisfied with such a decision, in mid-March 2018, we filed a request for extraordinary review of the decision to the Supreme Court of Montenegro, and this procedure is still ongoing, “highlighted Janković.
He says that access to numerous information has been restricted to this NGO by referring to the new provision of the law. Among them is information on all giro and foreign currency accounts of political parties, customs declarations issued by the Customs Administration to Uniprom, or information on who is exempt from paying customs duties on construction materials, equipment and installations for the construction of highway.
Member of the Council of the Agency, Radenko Lacmanović, also considers last year’s amendments to the Law a step backwards.
“It is particularly problematic that the amendments which caused most commotion in the public were proposed and adopted overnight, even without the knowledge of the Government, or at least this was stated by the Ministry of Culture,” Lacmanović said.
He claims that he pointed out the disputed provision relating to tax and business secret:
“To make it even more absurd, the proposers have not amended Article 15, which refers to deadlines in case of restriction to the access to information or part of it. Thus, it remained that when it comes to business and tax secrets there are no deadlines for expiry of reasons for restricting access to information, and the Agency can hardly review them. I also pointed out that Article 1 significantly restricts the public’s right to know and that it needs to be supplemented, “Lacmanović pointed out. This provision stipulates that LoFAI does not apply to information that is subject to confidentiality obligation.
The member of the Agency’s Council replied that it is true that the first-instance bodies when restricting access to information, or part of it, often refer to business and tax secret.
“On several occasions at the Council’s sittings I have pointed out that this may be the reason for not granting free access to information, but that it does not have to be this way. Namely, all six points of paragraph 1 of Article 14 may be one of the reasons, but that does not mean they must be. For this reason, we in the Council as a second-instance body, we do not always have to confirm the decision of the authorities that rejected a request by referring primarily to point 6. This is why we are a body reviewing first instance decisions, which means that we may have a different stance from the first instance bodies, “Lacmanović said.
He considers that the Council should in practice use the possibilities under Article 40 of the Law and request information from government bodies in order to assess why a particular document or agreement was declared business or tax secret.
However, Lacmanović acknowledges that the practice of the Agency’s Council is to accept first instance decisions rejecting requests for free access to information in all cases. He is not familiar with a case such as the MANS one, where the Agency rejected complaint to the decision issued by a state body prior to May last year, whereby the reason was business or tax secret. He said that this would mean that there was an ommission.
In the new EC Report for Montenegro it is written that 5.577 requests for free access to information were made last year, and that requested data was not provided in 1.951 cases.
The Agency for Personal Data Protection and Free Access to Information received 1.086 complaints, of which it upheld 356. Most were cases of “administrative silence”. The report states that it is a matter of concern that most complaints refer to cases where the requests remained unanswered by the public institutions.
The document notes that the Administrative Court ruled in 12 cases against the public body’s decision not to grant access to information but that court decisions are not effectively enforced.
According to the Report, public institutions urgently need to improve implementation of the law and comply with requests for access to information, especially in areas where there is a risk of corruption.
Companies Quietly Moved Out of Public Reach
Public Policy Researcher at the Institute Alternative (IA), Milena Milošević, claims that amendments to the LoFAI have not only been drafted without a public discussion, but also outside of the scope of strategic framework, which allegedly aims at greater openness of the public administration.
“Paradoxically, neither the Government nor the Agency for the Protection of Personal Data and Free Access to Information are tracking effects of solutions that have been” pulled through “in the Parliament,” Milošević said.
She noted that in parallel with this, in Serbia, there is a wider civil society action against exclusion of state-owned companies from the scope of application of their law. She points out that in Montenegro, much of the business of so-called public companies was quietly moved out of reach of the public, by introducing tax and business secret.
“If we look at this in the context of amendments to the Law on State Administration, which exempts bodies from obligation to conduct public discussion on budget issues, instead of empowering citizens there is an ongoing process of ” disarming” them. The basic principle of democracy is government for the people, but if the people do not have mechanisms to review the efficiency of government through public spending, then the question arises for whom there is government in Montenegro: for citizens or for those who have an interest in hiding their “business” from the public “concluded Milošević.
In the IA Draft report “Towards Better Administration”, in which CIJ-MNE had insight, it is written that negative effects of the disputed provisions of LoFAI can already be felt through rejection of access to information related to public debt management and tax obligations of Montenegrin municipalities.
Also, the report states that IA has already faced negative effects of rejecting access to information with justification that it concerns a tax secret.
Namely, this NGO was denied access to copies of reports on the implementation of the Tax Administration’s Plan for debt management and strengthening tax collection measures for the period 2017-2021 and information on fulfillment of the obligations of 16 municipalities based on tax rescheduling agreement, under the pretense that it concerns tax secret.
By this interpretation, IA considers, public administration bodies that are primarily in the service of citizens are treated the same way as private companies, and the public remains deprived of data that is very important for assessing their efficiency.
Author: Ana Komatina
The article was produced within the project “Civil Society for Good Governance: To Act and Account!”, Implemented by the Institute Alternative, Bonum, Nature, New horizon and Center for Research Journalism, and funded by the European Union within the Civil Society Facility , and the Balkan Trust for Democracy, a project of the German Marshall Fund of the US (GMF). The contents of the blog are the sole responsibility of the author and can not be taken to reflect the views of the donors.