The debate in the parliamentary working bodies on the Draft Law on Free Access to Information (FOI) could best be characterized by the popular saying - "snow does not fall to cover the hill, but for everyone to leave their mark."
In these words, an expert for personal data protection and free access to information Radenko Lacmanović describes yesterday's session of the Committee on Political System, Judiciary and Administration, during which, among other things, amendments to the Draft Law on STI were considered.
"Now it is probably clear to laypeople why political entities and their representatives in the legislative body are hesitant to adopt the Draft Law on STI. Not only that, but they intend to reverse the existing text," Lacmanović told "Vijesti".
Čarapić: Everyone can do it at their own expense.
During yesterday's Committee session, ruling PES MP Vasilije Čarapić requested that an amendment he had previously proposed, which had caused strong outcry from non-governmental organizations and civic activists, be corrected.
This is a proposal that citizens pay the costs of disputes before the Administrative Court due to the state's refusal to disclose the requested data.
Čarapić said that the SPI is being abused in practice and that the state is suffering serious financial consequences as a result.
"We need to know that our SPI has turned into a law that enables the abuse of rights. Practically truckloads of requests are arriving, trivial things are being requested, even student grades from 30 years ago. Each piece of information is being requested individually, and institutions do not have the capacity to decide on so many requests within the legal deadline," said Čarapić.
Yesterday, during the Political System Committee, he stated that this will be followed by appeals and lawsuits before the Administrative Court, where the costs of the proceedings are guaranteed.
"We have a situation where certain agencies are taking hundreds of thousands of euros, and law firms are taking millions. Tens of millions of euros have certainly been taken from the budget on this basis, without obtaining information of public interest," he said.
He assessed that this makes the law meaningless, even though it represents the realization of the citizen's constitutional right to know.
"The amendment I proposed targets the very essence of this abuse and cuts it at the root. Analyzing all aspects of the amendment and the goal I want to achieve, in conversation with colleagues, I came to the conclusion that it is not necessary for the prosecutor to bear all the costs of the procedure, but that anomalies and abuses would be completely meaningless if we were to provide that in disputes related to free access to information, each party bears its own costs," said Čarapić.
According to him, this makes senseless the motive of those prosecutors who initiate disputes solely to recover the costs of the proceedings.
"This achieves a balance between preventing abuses and preserving the right of citizens to seek information. I consider this method to be good and, so to speak, the gold standard for the application of the law. As an example, I cite the non-governmental organization MANS, which, in my opinion, is the gold standard for the application of this law. When they come to an administrative dispute, they never ask for procedural costs, which shows that it is not necessary to award procedural costs for the exercise of a constitutional right," Čarapić emphasized.
Lacmanović: Inspiration for breaking the law
Lacmanović, however, says that this change to the amendment, after public pressure, is "maximum stimulating for law enforcement or state and local authorities that should act on requests for free access to information."
"If we have had a situation so far where those obliged to the law, under threat of bearing the costs of the procedure, do not submit the requested information within the stipulated deadline, you can imagine what will happen when they do not have that threat. It will be very inspiring for them to do exactly the opposite, to violate the provisions and deadlines and thus fill the state budget," Lacmanović assessed.
According to him, the parties are being brought into the proceedings completely unequally, because even if they win the dispute before the competent court, they will "probably have to pay lawsuits or legal fees, which will be minimal for the state."
"The MPs lightly rejected the amendment that envisages the deletion of the provision regarding the extension of the deadline if a harmfulness test is being carried out. This effectively means that the MPs have essentially extended the deadline for deciding on requests for free access to information or submitted complaints. In the regular procedure, every decision must have a harmfulness test - that is, an explanation of why the request was eventually rejected. The harmfulness test is an integral part of the decision, that is, the explanation, and not a separate act. The foreseen deadline of 15 days was quite sufficient," says Lacmanović.
He explains that a longer deadline of eight days for the harm test essentially means “an extended deadline for deciding on requests for free access to information to 23 days”.
"We also had an amendment that required a detailed explanation of the reasons for a possible rejection of the request, and in fact, that detailed explanation represents a test of harmfulness. Through a detailed explanation, we could have insight into the reasons that decided the first-instance body or possibly the Agency Council not to accept the request or appeal," Lacmanović points out.
According to him, the amendment, which referred to the situation when certain information was declared classified, should have been accepted.
"So that we don't end up in a situation where the authority that has classified certain information decides on the same request. Of course, that authority would reject the request. We have an example in Serbia where the law allows the local commissioner to assess the reasons for declaring certain information classified. I would also like to point out that the Law on Data Secrecy allows members of the Council of the Personal Data Protection Agency and the SPI to do so without additional permission to access classified data. So they are one of the few who have access to classified data without permission," Lacmanović specifies.
Therefore, he says, the formal and substantive question now arises as to what the purpose of this possibility is if they cannot have access to secret data that could be the subject of a request for free access to information.
"I fear that these rejected amendments, along with the modified ones, are a step backwards and that citizens will be harmed, while MPs and their political parties will benefit," Lacmanović concluded.
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NGO: Incentive to hide information
Almost 60 civil society organizations and activists yesterday called on the Government and Parliament of Montenegro not to adopt an amendment to the Draft Law on Free Access to Information (FOI), which, they claim, would in practice render meaningless the judicial protection of this right, as well as the work of the media and NGOs.
"The amendment submitted by PES MP Vasilije Čarapić envisages introducing a rule in Article 50 that the costs of an administrative dispute are borne by the prosecutor. This formulation establishes a regime in which a citizen, media outlet or NGO can win the dispute and prove that the institution unlawfully withheld information, while still bearing the costs of the proceedings. This represents a serious financial obstacle and a direct blow to access to justice and the right to free access to information," their statement reads.
They recalled that the right to access information is guaranteed by the Constitution.
"And the Constitution also guarantees the right to a legal remedy and a fair trial before an independent court. Judicial protection must be real and effective, not formal. Prescribing that the plaintiff bears the costs of the dispute even when he succeeds in the dispute means that the right is 'paid' even when the violation of the right is proven. This deters citizens, journalists and organizations from judicial protection, and the right becomes available only to those who can take on the financial burden," the statement said.
This solution creates a dangerous incentive for institutions to unlawfully withhold information, they believe.
"If a government body knows that even if it loses a dispute, it will not bear the costs, it gains an incentive to systematically reject requests in violation of the Law. The consequence is that much information of public interest will remain unavailable because citizens, journalists and NGOs will be forced to assess whether they have the money to enter into a dispute - even when they are right," the statement said.
It is emphasized that free access to information is the basic means by which the civil sector and the media exercise democratic oversight over the work of government, and that limiting judicial protection through costs directly narrows the space for public control and public debate.
"In practice, this obstacle most affects precisely the topics in which the public interest is greatest: public procurement and contracts, spending of public funds, operations of state-owned enterprises; integrity of public officials, benefits, employment and conflict of interest; police actions, treatment of vulnerable groups, discrimination and other human rights issues; concessions and exploitation of resources, urbanism and planning, protection of rivers and forests, waste management, air and water pollution - where information is crucial for the protection of health and the environment."
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