The main reason for poor implementation of the Freedom to Information Act is the lack of political will for real change
On yesterday‘s GONG round table "Test of public interest and the Right of Access to Information", organized in the Croatian Parliament on the occasion of the upcoming International Day of Access to Information, dissatisfaction could be felt with the existing law, poor implementation of institutions and with the culture of secrecy that prevails in the existing institutions. The debate has brought to light numerous problems in the implementation of this constitutional right. The lack of political will to enact better law has been recognized as a major reason for poor implementation of the FIA.
On yesterday's GONG round table "Test of public interest and the Right of Access to Information", organized in the Croatian Parliament on the occasion of the upcoming International Day of Access to Information, dissatisfaction could be felt with the existing law, poor implementation of institutions and with the culture of secrecy that prevails in the existing institutions. The discussion included representatives of various government agencies, academia, NGOs and the international community and has once again brought to light numerous problems with the implementation of this constitutional right. A major reason for poor implementation of this Act considers a lack of political will to enact better laws and to open the institutions, for which representatives of the Ministry of Public Administration and of the Ministry of Justice have been called upon on several occasions.
The discussion preceded the presentation of GONG's annual report on the implementation of the Freedom to Information Act and a presentation of the representatives of the European Ombudsman, Gundi Gadesmann. The executive director of GONG, Dragan Zelic, stated that GONG’s study shows that the problem remains the inability to exercise the test of public interest by appellate bodies, the non-compliance of the Freedom to Information Act and the Data Secrecy Act (appeals body has no ability to check abuse of secrecy) and that the practice of consultation with the interested public in the preparation of making important decisions are still not respected. In addition, he noted that GONG will continue to strive to establish an independent Commissioner for Information and that the future government is expected to open the institutions and offer greater availability of information.
Gadesmann on the other hand, spoke of the importance of the European Ombudsman for Croatian citizens after the accession of Croatia to the European Union. This will be the body that the citizens will be able to contact in case the administrative bodies of the EU are not providing information that should be available. She also pointed out that in the past two years the European Ombundsman had already received 11 complaints of Croatian citizens, complaints mainly referred to the bad practice of Croatian administration, but the settlement of these cases do not fall within the jurisdiction of the European Ombudsman. In one of the cases described by Gadesmann, Croatian citizen complained to the delegation of the European Commission in Zagreb, and since it has not received any response from the delegation, he complained to the European Ombudsman. The delegation was ordered to submit written answer to Croatian citizen, although the delegation was unable to help resolve its dispute.
Interesting criticism of the current situation in the implementation of the Freedom to the Information Act arrived from sources of legal experts. Mirjana Juricic, Judge of the Administrative Court said that some articles of the Act are unconstitutional, which is especially evident in confidential labeling of specified documents. Constitutionally guaranteed human rights, such as the Right of Access to Information can only be restricted by law, rather the nature of the need for restriction in each individual case and, if necessary, in a free and democratic society. However, the current FIA says that public authorities may deny access to information and if it is classified the degree of confidentiality in accordance with law and/or the regulations. In addition, the Agency for the Protection of Personal Data as an appellate body must be able to process the appeal conducted a test of proportionality and public interest test. Because of the forthcoming reform of administrative justice, it should be stipulated that the complaint process by the FIA should be under the jurisdiction of the High Administrative Court, rather than the administrative courts of first instance because it extends, and thus make the process even more time-consuming.
Tamara Ćapeta, professor of the Faculty of Law in Zagreb said that a court, if it notices that a law is inconsistent with the Constitution should automatically initiate a review of its constitutionality, and that this is its precise significance. As the round table repeatedly set an open question of (non-) transparency of the negotiation process with the EU and the constant refusal of the Government to publish any documents during the process from which the public could learn how and what was negotiated, professor Ćapeta also commented on the subject. She said that this approach was wrong from the very start of the negotiation process and how, when she was a member of the negotiating team, was not informed herself about how and what was negotiated. She believes that this is the ultimate moment when the government should open the pre-accession process to the public with the publication of the Accession Treaty, and on the comment of the Public Administration Minister Davorin Mlakar that before publishing the document should be translated into Croatian and thoroughly legally reviewed, responded that the public also needs an English version of the contract to be sure that the Croatian version states the same.
Also received with extreme displeasure was the explanation of Kristian Turkalj, director of the Directorate for the EU and International Cooperation of the Ministry of Justice, who tried to explain why establishment of an independent Commissioner for information was not inculded into the Act. He explained that the reason for this is the fact that the person should be elected for office in the Parliament, which would not be independent, and that the Administrative Court, which is currently the second-instance appellate body in the implementation of the law, is the most independent body and currently the best choice. This remark was greeted with a counter-argument stating that the choice of such commissioner with a two-third majority of all representatives guarantees sufficient independence of function.
Dubravka Bevandić from the Personal Data Protection Agency announced the current undergoing training and certification of PDPA's officers, so they could be qualified in the future to conduct the public interest test. Bevandić also stated that they have suggested to the Ministry of Administration a proposal of changes to the Private Data Protection Act. Sinisa Gudlin from the Office of the National Security Council announced that we can also expect the proposal of changes to the Data Secrecy Act, which are currently in the preparation. He also pointed out that after a certain period of time it is necessary to review the status of certain proprietary information which is, unfortunately, often avoided.