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Suggestions for improving access to information

The existing draft amendments to the Law on Free Access to Information must be significantly improved so that citizens can effectively exercise their rights and the authorities are adequately controlled. In addition, the provisions of other regulations must be changed at the same time, which is not foreseen at all now - Transparency Serbia pointed out today.

One of the most important proposals refers to the introduction of criminal liability of heads of institutions who hide data from the public after the commissioner makes a binding decision that data must be disclosed. The Criminal Code already threatens a prison sentence of three months to three years against people who disobey a final court decision. Thus, at the moment, the heads of six bodies who do not submit information after the ruling of the Administrative Court could be prosecuted, but not the heads of all other authorities who ignore the final decision of the commissioner, which is illogical. The introduction of criminal liability would be a much more effective means of eliminating this most drastic type of violation of citizens' rights than a system in which a fine paid by an authority is imposed for non-compliance and not by a manager who hides information.

In addition to the joint proposals of the Coalition for Freedom of Access to Information to eliminate six problems in the current draft, Transparency Serbia pointed out to the Ministry of State Administration and Local Self-Government that the Assembly should consider a proposal to amend the law submitted in 2007 in the form of people's initiative before considering the Government's proposal.  TS specify the necessity of amending the Law on Misdemeanors so that unscrupulous heads of government bodies would not avoid responsibility due to the statute of limitations after one year. TS also points out the need to change provisions of other laws that conflict with access to information rules (especially Article 45 of the Law on Protection of Competition).

Furthermore, TS proposed expanding the circle of authorities to include not only majority state-owned enterprises but also those in which the state has a "controlling stake", which received high-value public property, or the state-guaranteed for their loans when the ceded public property or loan exceeds the value of the net capital of the enterprise.

It is proposed to delete the possibility for the body to withhold information under the pretext that it would burden the body's work because that can only be a reason to extend the deadline to act.  It should be borne in mind that the authorities could blame only themselves for the difficulties in acting on the requests because they do not keep the documentation in electronic form.

When it comes to bodies against whose decisions it is not possible to file an appeal, TS proposed a significant change - that in cases when the General Secretariat of the Government or one of the Government offices and services is denied information, those services are considered as separate bodies and not as part of the Government. Namely, they are independent when it suits them - they have their divisions in the budget, conduct their public procurement, etc., so they should be equally independent when considering their work at the request of citizens for access to information.

TS also proposed measures to ensure faster handling of disputes in the protection of rights before the Commissioner and the Administrative Court, to increase the penalty that can be imposed for failure to act on the decision of the commissioner (from 200.000 to two million dinars), but also the duty of the state authorities and the public attorney to collect the fine paid by the authorities from the responsible individual within 30 days.

There is also a proposal to specify reasons and procedures when the Assembly can dismiss the commissioner due to "unprofessional and unscrupulous work" to reduce the space for arbitrariness. TS pointed out the necessity for the commissioner to give opinions not only on draft laws that affect access to information but also on proposals for such laws and initiatives and proposals for examining the constitutionality of such regulations.

Finally, based on the long-standing practice of applying the law, TS noted the need for the authorities to regulate the implementation of this law by an internal act and suggested that bodies with more than 50 employees have such an obligation.

The proposals submitted by TS to the ministry are available (in Serbian) on the TS website, on the Initiatives and Analysis page: i