The position of the Council of the Agency for the Protection of Personal Data and Free Access to Information following an appeal for the administration's silence will be binding, and the state authorities will have to act on it.
This, among other things, is provided for in the Bill on Amendments to the Law on Free Access to Information, which was recently considered by the Council for State Administration Reform.
After the formation of the 43rd Government, the draft law was returned from the parliamentary procedure, after which the cycle of consultations with the competent authorities was repeated.
"It is expected that the proposed amendments in the area of free access to information contribute to the most effective realization of the right to free access to information, and to the creation of the necessary mechanisms, in order to overcome the problems identified in the application. Bearing in mind the fact that the European Commission had previously given a positive opinion on the Draft Law, as well as the fact that the Draft Law was innovative compared to the submitted opinions of the competent authorities, it was decided that the Draft Law would be submitted to the Mission of Montenegro in Brussels for familiarization", it was announced. is from the Ministry of Public Administration.
The civil sector says that the proposed changes foresee a number of good solutions, but that there are also shortcomings.
Gluščević: Let's see how the Agency will manage
Representative of the Network for the Affirmation of the Non-Governmental Sector (MANS) Perko Gluščević as a good solution he apostrophized execution.
"...Because we have a huge problem in practice. A decision is being made to grant access to information, but we cannot implement it in practice. We used all legal means - in the Administrative and Supreme Courts, we tried to implement solutions according to the Law on Administrative Procedure, but we never succeeded. The position of both the Administrative Court and the Supreme Court is that enforcement can only be carried out by imposing fines, and that can only be done by the Court for Misdemeanors. I am not aware that this has happened in practice. Execution and putting those procedures under the supervision of the Agency is a correct solution, but we will see how it will come to life in practice", said Gluščević.
According to him, the introduction of the institute of controllers is also a good solution.
"They will control whether or not some body possesses information, which has been a big problem in practice until now. We only received the information that the authority does not have the information we were looking for, however, either from the media or from legal solutions, we know that it is indisputable that the authority has that information, but they do not want to provide it, so the burden of proof is on us. The controller's institute should solve it, but again, it is a new institute, so we will see how it will come to life in practice", said Gluščević.
It does not apply to former officials and their families
However, he also indicates that the key shortcoming of the proposed text is the reduction of the level of privacy of public officials.
"The regulation would apply to current public officials and persons related to them, that is, members of the same household. In the earlier proposal, which was withdrawn, it was set much more broadly, and it referred to all public officials who previously held public office, i.e. from the obligation to submit reports on assets and income and to persons connected with them, regardless of are they in the same household now. The current solution narrows access to information for public officials and members of their household, children, spouses, ex-wives, who had a lifestyle disproportionate to their income. A large number of children of public officials acquired enormous property when they came of age, because they were not members of the same household, so we did not have access to that documentation," emphasizes Gluščević.
According to him, the current proposal for changes treats the institute of tax secrecy in an identical way - it can only be applied to current officials and members of their households.
"When it comes to the proactive publication of information, the earlier proposal contained that authorities are obliged to publish tenders and tender documentation. However, in this proposal, it has been removed. It is possible that it will be justified by subterfuge under other information, but I think that it is much better to predict it decisively, that is, that it must be published proactively", Gluščević points out.
When it comes to secret data, according to the current proposal, in the case of making a decision on information marked with a level of secrecy, the authority that determined the level of secrecy makes the decision: "This way, a lot of time is wasted. It would be much more economical for the authority to which the request was submitted to seek approval from the authority that determined the degree of secrecy".
Papović: There are promotions, the fate of changes is uncertain
Member of the Council for Public Administration Reform Biljana Papović from the non-governmental organization Center for Democratic Transition (CDT) told "Vijesti" that, as far as content is concerned, there are improvements.
"However, it is crucial to plan how the control of the implementation of these solutions will function. Until now, the arbitrariness of the institution ruled and the legal mechanisms were not enough to get basic information in the possession of the authorities," she said.
According to her, at this moment the question is what will be the fate of the law, because it may depend on the future Government and Parliament and how they will behave according to that regulation.
Papović also reminded that the proposal to amend the law was in the parliamentary procedure during the mandate of the 42nd Government, but was then withdrawn for technical reasons.
"It has advantages in terms of content, especially when it comes to the proactive publication of information on the websites of state authorities. However, even the current solutions are not applied properly. We have a particularly worrisome situation with state-owned companies, which do not even meet the legal minimum of information that must be published according to the current law," she said.
Papović states that the proposed provisions envisage that the state will no longer keep secret contracts on key infrastructure projects, as was the case in the previous period with data related to the highway.
He emphasizes that it is foreseen that the Agency for the Protection of Personal Data will take over the centralized supervision of the implementation of the Law and the second instance procedure.
Papović believes that the capacities of the Agency should be strengthened, and that, in this sense, additional funds will be needed to implement the proposed amendments to the law.
"The current situation with the hacker attack in particular does not go hand in hand with the intention and spirit of this law - that is, improving the transparency of the work of our institutions. Besides we can hear assessments that part of the information and data is permanently lost, it seems that this attack has also started to be used as an excuse when the proactive publication of information is missing or for delays in providing information upon a request for free access".
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