Proposed Law on Free Access to Information Unsustainable in Montenegrin Context

Adoption of the Draft Law on Free Access to Information in proposed form would take us 15 years backwards. We have been moving in this direction for years, facing administrative silence, long-standing procedures in Agency for Free Access to Information and average duration of the procedures in Administrative Court that are longer than 13 months.

This was stated by Stevo Muk, President of the Managing Board at Institute Alternative (IA) at the conference “Back to basics: Informed Citizens – Active Society!”.

Muk considers that Government and Ministry of Public Administration persistently deny the direct connection between transparency and accountability.  “However, openness is not a goal itself, but it is precondition for monitoring accountability of administration’s work”, stated Muk.

Akvile Normantiene, Political Affairs Officer in the Delegation of the European Union to Montenegro, said that free access to information is very important topic in the context of Montenegro and accession negotiations with European Union.

Specific provisions that are now contained in the Draft of the Law, such as abuse of the rights must be carefully reviewed in the Montenegrin context”, stated Normantiene adding that there are other legal solutions that can prevent abuse of law on free access to information.

Helen Darbishire, Executive Director of Access Info Europe expressed serious concern about how the abuse of right to free access to information was defined.

We recommend that you do not continue with the draft Law which is currently in procedure, it is too broadly defined in several parts and you may regret later for its adoption”, highlighted Helen.

Dejan Milenković, SIGMA expert on public administration, agreed that proposed provision on abuse of right opens up possibility for discretionary decision making, adding that the article that refers to relative exceptions – “for other reasons prescribed by Law” is also uncertain.

“That provision absolutely should not be placed in the draft Law because this opens an unlimited circle for potential exceptions to the exercise of the right on free access to information”, emphasised Milenković.

Dina Bajramspahić, Public Policy Researcher at Institute Alternative, as a main complaint stressed that during the public consultation and numerous presentations of the draft Law, no arguments that led to such decision were given.

“If such Law come into force, we will have entire areas completely excluded from the Law, but we have not heard why. We do not know what caused the Government to relax institutions such as the Police and the National Security Agency from law enforcement”, said Bajramspahić.

As a controversial, Bajramspahić consider provision that refers on narrowing the definition of information. “This means that authorities introduce possibilities for rejecting access to information in their possession claiming that information is not of public importance, or that it is not related to the work, organisation and competence of the authority”, added Bajramspahić.

Danijela Nedeljković Vukčević, Director General of the Directorate of State Administration in the Ministry of Public Administration, stated that reasons for proposing these amendments are “inconsistency of norms, the existence of contradictory determinations of one article in relation to another, short deadlines for decision-making and a large number of appeals that are currently in circulation”.

“Everyone recognise the fear of introducing the institute of abuse of right in the legal system of Montenegro from various reasons. It is important that we have identified issues, we need to determine the measure and propose the best solutions’’, added Nedeljković Vukčević.

Junajo Cordero, International Expert for access to information, said that right on free access to information is fundamental democratic right.

“Governments and civil servants are those who manage the public resources that belong to all citizens of Montenegro, and that includes information. This is why public information must be available to all stakeholders and it is very important that civil servants are held accountable for managing those resources”, stated Cordero.

Slavoljupka Pavlović, Assistant Secretary General in Institution of Commissioner for Information of Public Importance and Personal Data Protection, said that in the Law of Republic of Serbia there are no any single absolutely exception to the right of free access to information.

“I believe that this is always good solution that leads to greater transparency and this is the reason why this Law was normatively ranked as one of the best laws”, stressed Pavlović and added that all information that are directly or indirectly linked to the spending of public funds are par excellence information that must be publicly available.

Kristina Kotnik Šumah, Deputy Commissioner at Information Commissioner of Slovenia, said that Slovenia has very well defined exceptions to the access to information, which are listed in the Law on Free Access to Information. In Slovenia, there are no general exceptions to the right or restrictions that could be defined in a specific law.

“There are eleven exceptions to the free access to information in our Law, and all of them are very precisely defined – we all know exactly what business secret and classified information are and what it can be related to”, said Kotnik Šumah adding that unless some information is essentially secretive, no one can declare it secret.

Speaking about abuse of the right, Kotnik Šumah emphasised that it is very important that this is used in a very restrictive way.  “In Slovenia, public authorities can not reject request for access based on abuse of right because a large number of documents have been requested or if acting on the request entails large amount of work”, she added.

Lana Podgoršek, from NGO Code for Croatia, pointed out that Law on free Access to Information in Croatia is well defined, but there are a lot of challenges in its implementation in practice.

“Issues arise when submitting information in an open format and while informing citizens on the which information should be publicly available”, said Podgoršek. She added that civil servants often do not know what they can or can not publish, which further prolongs the process.

The conference was organised within the project “YOU4EU – Citizen Participation 2.0”, which is implemented by Institute Alternative in cooperation with partners from Serbia (Belgrade Open School), Croatia (Gong), Slovenia (PiNA) and Spain (Access Info Europe) with the support of European Union within the Europe for Citizens Program.

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