Five non-governmental organizations submitted to the Ministry of Public Administration numerous objections to the Draft Law on Free Access to Information, as the proposed amendments were contrary to the Constitution of Montenegro, international conventions, as well as the practice of the European Court of Human Rights.
The draft introduces systematic restrictions on access to information, new grounds for hiding data, abolishes existing citizens’ rights and obligations of authorities, and does not resolve problems in practice that lead to multiple violations of rights and the absence of any responsibility. Almost all proposed amendments to the Act narrow the existing rights of citizens.
The draft threatens the complete system of access to information:
- It introduces ‘Abuse of the right’ of access to information as a basis for refusing a request, and the general and imprecise formulation allows these provisions to be applied arbitrarily in almost every case;
- It narrows the definition of information and leaves it possible in each case to arbitrarily determine whether the requested information is “of public importance”;
According to the European Court of Human Rights, the law must be “predictable”, ie formulated with sufficient precision to enable any person to regulate its conduct in accordance with it, and to provide legal protection against arbitrary interference by public authorities with the enjoyment of human rights guaranteed by the Convention. However, the Government’s draft law has just been drafted to allow for the unlimited arbitrariness of the authorities in deciding on access to information.
The draft law allows an unlimited amount of information to be kept secret:
- Absolute restrictions on access to data in the intelligence and security sector are introduced, as well as information exchanged in cooperation with international organizations or other countries;
- It is envisaged that the basis for concealing information may be introduced by other laws, which means that the list of exceptions is limited;
- The term business secret is not prescribed, which in practice is most often cited as a reason for restricting access to information, although no law defines what can be declared a business secret.
International standards provide a precise list of possible restrictions on the right of access to information.
The draft stipulates that no harmful test will be conducted for data declared confidential for the protection of privacy, security, defense, foreign, monetary and economic policy.
According to international standards, it must be determined on a case-by-case basis whether there is a greater public interest in making the information public than the interest protected by data hiding.
The draft abolishes citizens’ rights and obligations of institutions:
- The obligation of political parties to disclose information about their financing is abolished, so they are excluded from the taxpayers in the election year;
- The obligation of institutions to proactively publish public registers in their possession, expert opinions on drafts and proposals, as well as data on public officials’ income is abolished;
- The costs of the proceedings are abolished, so citizens will have to pay the lawyer’s fees themselves, even when their Constitutional right has been violated, and bear the burden because they have instituted proceedings against an unlawful decision of some authority;
In addition, the Draft extends the time limits for deciding both requests and appeals, which delays access to data to such a degree that it makes it difficult to obtain information.
International standards stipulate that a party must have access to a court in connection with compensation and reimbursement of expenses incurred by another party, in this case the state or authority. Any restriction on access to a court must have a legitimate aim, and the means used must be proportionate to that end.
Problems in the implementation of the Law that lead to multiple violations of the rights and lack of accountability of the authorities have not been resolved:
- There is no obligation to adjudicate on appeals that would interrupt longstanding proceedings in which the authorities persistently violate the law, although their decisions have been repeatedly overturned.
- The issue of monitoring the implementation of the Law is not addressed, although the provisions on misdemeanor liability are not implemented in practice, and citizens’ rights to access information are violated without any consequences.
We expect the Government to withdraw the proposed amendments to the Law and bring them into line with the Constitution and international standards.
NGO Network for afirmation non-governmental sector – MANS
NGO Institute Alternative – IA
NGO Human Rights Action – HRA
Monitoring and Research Centre – CEMI
Centre for Civil Liberties – CEGAS