In March 2015, CDT was monitoring the implementation of the Free Access to Information Law (FAI Law) by the ministries and other state administration bodies, especially whether they follow the regulation on proactive disclosure of information and in what manner they publish the important information on their performance.
CDT Director Dragan Koprivica expressed his concern about the fact that the Agency did not commit on their legal obligation to monitor whether institutions have developed and updated guides for Free Access to Information, and if they have been publishing information proactively.
"Even after two years of its work, the Agency failed to develop the capacity to monitor institutions that are obliged to publish information proactively", Koprivica said.
He explained that this statement is confirmed by the Agency itself in its report to the Parliament - in the first three quarters of 2014 inspections were not carried out in this area, and in the fourth quarter a total of seven inspections was conducted.
"Although we understand the problems related to the lack of staff or budget funds, we cannot understand that there is no supervision in implementation of this important law. If there is a problem it must be solved rather than maintain the status quo", said Koprivica.
In addition, he noted that the Agency has informed the Parliament that in 2014 they did not submit any misdemeanor charges regarding absence or lack of updated guide, nor for failure to publish mandatory information.
"Precise measurements conducted by CDT have noticed hundreds of violations of the part of the law regarding proactive disclosure of information. This information was made available to the Agency and the public. So, after hundreds of violations, we have zero misdemeanor charges which speaks for itself about the quality of criminal policy in this area. We emphasize that prescribed penalties for these violations range from 500 to 20 thousand Euros."
The Agency, according to the FAI Law, is also required to provide a database on the authorities to which the Law applies. Such database, if it exists has never been public. Also, a list of authorities to which the law applies doesn't exist, and it often leads to unproductive debate to whom these obligations refer to - said Koprivica.
CDT urges to the Agency to immediately publish this data and thus prevent some institutions to avoid respecting the law.
How State Administration respects respects FOIA
Deputy Director Đorđije Brkuljan explained that in state administration there is still no understanding that proactive disclosure of information facilitates their work, and that the disclosure of information means reducing the number of requests for access to information.
"While the law imposes the obligation to the authorities to have officers responsible to act upon requests for access to information, there is no such obligation regarding the proactive disclosure of information", said Brkuljan.
In order to increase accountability and better use of this Law, it is necessary that the authorities lay down additional obligation for officers who act upon FAI requests to be in charge of the implementation of proactive approach in publishing information.
In communication with government authorities, we have concluded that some of them do not know how to put into practice the regulation of the proactive disclosure of information.
Therefore, we believe that it is necessary to do an analysis of the obstacles faced by different bodies in the application of the regulation, and then prepare the guidelines, instructions or other statutory acts for the implementation of FAI Law.
CDT believes that the Agency should prepare instructions and guidelines for proactive disclosure of information, which would include an accurate list and description of information that a certain group of institutions must publish on their websites.
The latest CDT survey shows that the administrative authorities, comparing to the previous measurements, made some progress in the proactive disclosure of information, but due to the fact that majority of authorities did not publish an updated Guide on Access to Information, the overall result was worse than before.
Only two, out of 55 authorities covered by the monitoring, updated their guide in 2014, although it is their responsibility to update it at least once a year. There are no guides on websites of 12 public administration bodies while guides on websites of the other bodies are outdated.
"Having in mind that there are still bodies that do not have a guide, or have a guide adopted several years ago, the Agency is recommended to develop a form for FAI guide, according to which all institutions will make their own", said Brkuljan.
Monitoring results
Only three first-ranking ministries have updated their guide, from 2014.
Public registers and records were published by only five ministries, database on information accessed by approved requests have only seven ministries. Half of the ministries have published their work plan for 2015.
There has been progress regarding publication of draft laws and other regulations, as well as the publication of information on available financial resources, which now is published by 14 out of 16 ministries. 10 ministries publish information from FAI Law under a separate banner, division, so they are systematic and easy to navigate.
Among autonomous administrative bodies, only two have updated guides for access to information.
What is positive is that 16 out of the 18 autonomous administrative bodies published reports on their annual work and the situation in the areas under their jurisdiction for 2013.
We recorded the worst results for the bodies within ministries.
Five bodies that did not meet even one of the indicators of FAI Law implementation are bodies within the ministries.
The situation is somewhat different with the Police Directorate, which on its website does not publish information nor has its own guidelines on access to information, but the information is published on Ministry of Interior website.
Ministry of Interior believes that it is enough, while CDT thinks that the Police Directorate should independently provide access to information, as well as all other authorities of the same rank. However, it is important to note that there would be no dilemma if the Agency for Protection of Personal Data and the Free Access to Information had fulfilled their obligation, and provided a database of bodies and organizations that are subjected to this law.
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