Tag: freedom of information

Bosnia’s Judiciary Still Reluctant to Answer Emailed FOI Requests

Posted on by Ivana Jeremic

Nearly 10 per cent of judicial institutions in Bosnia and Herzegovina which responded to BIRN’s FOI request insisted that requests for access to information be submitted in person or by mail, while some offered fax as an alternative.

BIRN sent inquiries to 96 courts and prosecutors’ offices on how they receive requests for free access to information.

The majority, 51, said they allow inquiries to be sent in a variety of ways, including email.

But of the 58 who responded, two prosecutors’ offices and four courts said they do not look at inquiries sent by email, which is common practice in most state institutions.

In their responses they said that they receive such requests exclusively by mail or in person, citing the lack of an electronic seal law and the impossibility of establishing the identities of the persons sending requests by email.

Experts criticised this as a way to restrict access to information for citizens and journalists.

The editor of the Capital.ba portal and president of the Banja Luka Journalists’ Club, Sinisa Vukelic, said such an approach makes it difficult for journalists to work.

“The message they are sending is that they do not want to change, and the only conclusion that can be drawn from that is that they are looking for every possible way to be less transparent,” Vukelic said.

Making inquiries in person, or sending them by mail, takes up valuable time when working on a text and prevents journalists from doing the stories they would otherwise do, if judicial institutions were more open, he added.

When you receive information after ten days, it is often by then unusable from a journalistic point of view, Vukelic noted.

Besides creating obstacles to sending inquiries, journalists face non-responses or delays in obtaining information from the judiciary. BIRN’s inquiries were not answered at all by 38 judicial institutions, and of the 58 that did answer, their answers arrived after 14 days.

BIRN’s recently published annual Freedom of Information report concluded that FOI laws in Bosnia and Herzegovina are outdated and do not meet the needs and expectations of the digital age.

Furthermore, Bosnia remains the only country in the Balkans that does not offer access to public records in electronic form.

Freedom of Information in Balkans: ‘No Will, No Optimism’

Posted on by Ivana Jeremic

The region needs more proactive transparency, open contracting and political will to deal with freedom of information, FOI, speakers from the region and internationally told BIRN’s conference Platform B: Freedom of Information in the Balkans, held on Thursday.

Countries are still struggling with the slow implementation of FOI laws, political pressures and institutions’ unresponsiveness, while the first year of the global pandemic also saw excessive delays in responding to FOI requests, speakers at the event, at which BIRN’s annual freedom of information report was officially launched, agreed.

Ivana Jeremic, editor at Balkan Insight from Serbia, told the conference that 2020 was “extremely hard” in terms of getting any information from institutions in Serbia, making it difficult for journalists to do their job.

“I don’t know what to expect in future, but the trend is not optimistic, there is no will from institutions to implement our law, which is actually among the best laws in the world, but on paper. 

Besides, people who are in charge [of FOI requests] at institutions are not educated enough on how to respond to those requests and there is also lots of pressure on them about which information should be made public and which not,” Jeremic said.

Kreshnik Gashi, managing editor of KALLXO.com and Author of the TV show Justice in Kosovo, told the conference that journalists and the general public face many problems when it comes to freedom of information in Kosovo.

“The law on the classification of official documents in Kosovo is not implemented by all institutions and as a result we have problems when documents are requested by various parties. One of the problems is whether or not the official is allowed to provide the document to the journalist or the party, as it is not clear whether that document is public or not,” he said.

“In consequence, all the required documents have to go through this process always, because there is no clarity on what is confidential and what isn’t”, he added. 

However, there are signs that things might be changing for the better.

“I should mention as a very good model and practice that Kosovo has decided to open all contracts in public procurement, an action that has helped our work a lot and makes monitoring and reporting on public contracts management possible,” Gashi said.

Sandra Pernar, Senior Regional Coordinator – Europe, at Open Government Partnership, OGP, told the discussion that there are many similarities between the regional countries that are part of the initiative – implementation being one of them.

“In general for the region, I can say that the conclusion is very much the same as the one many [speakers] said several times today, and that is: there is not so much of a problem with bad regulation, it is really about the implementation. This is something that should be addressed,” Pernar said, adding that the region should pay more attention to proactive transparency, “which is obviously not there yet”.

The report’s findings were further discussed with other BIRN journalists, civil society members and public institutions’ representatives, which was followed by a Q&A session.

The report, Freedom of Information in the Western Balkans in 2020: Classified. Rejected. Delayed, which covers 2020, is part of BIRN’s ongoing project, A Paper Trail to Better Governance, with the main aim of exposing wrongdoing in government and public and private companies and among powerful individuals through country-based and cross-border investigations.

Besides analysing a total of 358 FOI requests submitted by BIRN journalists, the report also examines legislation, governments’ partnerships and progress in international organisations in dealing with transparency and open data, the work of regional public information officers as well as regional governments’ treatment of freedom of information during the pandemic.

The report in Albanian.

The report in BCHS.

The report in Macedonian.

Platform B: Amplifying Strong and Credible SEE Voices

Posted on by BIRD

Together with our partners, BIRN is launching a series of online and offline events aimed to amplify the voices of strong and credible individuals and organisations in the region that promote the core values of democracy, such as civic engagement, independent institutions, transparency and rule of law.

As a primarily media organisation, we want to open space and provide a platform to discuss and reshape our alliances in light of the challenges facing democracies in South-East and Central Europe.

This effort comes at a critical time when the region is seeing several troubling trends: centralized power, reduced transparency, assaults on media, politicized judiciaries, unchecked corruption, online violations and social polarization – all amidst heightened geopolitical tensions and deep divisions in Europe.

Due to the ongoing pandemic, Platform B event series will be organised in accordance with all relevant health measures. As the situation improves, we hope to be able to host some of the events in BIRN spaces in Sarajevo and Belgrade, and elsewhere in the region.

The Platform B will be an opportunity for individuals and groups to meet monthly on selected topics.

Illustration: Marta Klawe Rzeczy

Opening event: Digital Rights Falter Amid Political and Social Unrest: What Now?

Date: 1 July, 2021 (Thursday)

Time: 15.00, CET

At this event, BIRN and SHARE Foundation will discuss its annual digital rights report,together with other members of the newly established SEE Network, talking about the key trends concerning the digital ecosystem.

We monitored digital rights in Bosnia and Herzegovina, Croatia, Hungary, North Macedonia, Romania and Serbia and collected more than 1500 cases of online violations.

In Southern and Eastern Europe, where online disinformation campaigns are endangering guaranteed individual freedoms, and while the decline in internet safety has become a worrying trend, citizens with poor media and digital illiteracy have been left without viable protection mechanisms.

The event participants will have an opportunity to discuss and hear reflections from representatives of: EDRi, Zasto ne?, Citizen D, Homo Digitalis, SCiDEV, Partners Serbia, Metamorphosis, Atina NGO, Media Development Center.

More information and registration

Second event: Freedom of Information in the Balkans: Classified, Rejected, Delayed

Date: July 15, 2021 (Thursday)

Time: 14.00, CET

The global pandemic has been used as an excuse for many Balkan states to not fully implement freedom of information laws, leaving the public in the dark.

Transparency has been another victim of the COVID-19 pandemic.

While on paper, freedom of information laws are up-to-date in almost all countries in the region, implementation is patchy at best and has grown worse since governments clamped down on the flow of information with the onset of the coronavirus.

Together with journalists, public information officers and colleagues from Open Government Partnership we will reflect on the findings of BIRN’s tracking institutional transparency report and offer recommendations on how to make our institutions open and accountable.

Registration form will be available here soon.

Events in August and in the fall will focus on investigative journalism and gender justice.

PiS-Friendly High Courts in Poland Conspire to Restrict Access to Public Info

Posted on by Ivana Jeremic

The chief justice of Poland’s Supreme Court, a presidential appointee, has asked the government-controlled Constitutional Tribunal to declare key elements of the law on access to public information as unconstitutional, which experts warn could bring about an end to government transparency.

Since being elected in 2015, the nationalist-populist Law and Justice (PiS) government has suffered a series of scandals – some uncovered through the use of transparency laws – concerning the appointments of relatives and friends of PiS politicians to public office, as well as the favouring of friendly foundations, media and other institutions in the distribution of public funds.

Observers speculate that another intended effect of the request could be to shield from media scrutiny certain state companies, which PiS is increasingly using to achieve political ends, such as taking control of critical media.

It emerged Wednesday, via a personal tweet from Miroslaw Wroblewski, a lawyer and director of the constitutional law team at the office of the Polish Ombudsman, that Malgorzata Manowska, the chief justice of the Supreme Court, had formally requested on February 16 that the Constitutional Tribunal assess the constitutionality of several aspects of Poland’s law governing access to public information.

Manowska, who was appointed to her position last year by the PiS-allied President Andrzej Duda, claimed in her submission that the law doesn’t specify enough the scope of concepts such as “public authorities”, “other entities performing public tasks”, “persons exercising public functions” and “the relation to the exercise of public functions”. As a consequence, she wrote, the concepts are stretched too broadly in an illegal manner, meaning too many public bodies and officials are held accountable.

The chief justice also challenged the obligation of state bodies to provide information about public officials, “including their personal data and information belonging to their private sphere”, which she argued is both unconstitutional and contrary to the European Convention on Human Rights. Yet this could also refer, potentially, to information about supplementary sources of income or conflicts of interest that exist among the official’s family.

Wroblewski took to social media to comment on Manowska’s request: “I wouldn’t be surprised if we’ll remember this date [February 16] as the end of government transparency”.

Krzysztof Izdebski, from the open-government watchdog Fundacja ePanstwo, anticipates that public institutions which have been taken to court by journalists for not providing requested public information on time will now start filing requests to suspend their trials until the Constitutional Tribunal rules. “This request is also meant to have a chilling effect on citizens and journalists,” Izdebski commented.

Manowska was nominated to the Supreme Court by the National Council of the Judiciary, KRS, a body whose independence from the ruling party has been questioned by both the Court of Justice of the European Union and the Polish Supreme Court itself. Although an experienced judge and former dean of the National School of Judiciary and Public Prosecution, she has also served as a deputy justice minister under Justice Minister Zbigniew Ziobro, raising concerns about her independence from him and PiS.

In turn, the Constitutional Tribunal was the first body in the justice system that PiS sought to establish political control over when it took power, while its President, Julia Przylebska, is known to be a personal friend of PiS leader Jaroslaw Kaczynski.

Romanian NGOs Condemn Threat to Limit Access to Information

Posted on by Ivana Jeremic

Five leading NGOs in Romania on Friday in an open letter condemned legislation tabled this week in parliament by an opposition Social Democratic Party MP – initially supported by the chief whip of the ruling National Liberal Party – that would reduce the state’s obligation to supply public information.

The legal amendment would make those requesting information liable to cover the financial costs of the process of collecting and releasing information, such as scanning and making copies of documents and other operations.

If the legislation is adopted, authorities could deny information requests on the basis of their volume – if the requested information or data exceeds 50 pages – or by invoking the request’s allegedly “malicious intent”. 

The executive director of the Centre for Independent Journalism, CJI, Cristina Lupu, told BIRN that the spirit of the proposed legislation suggested that “the person who requests information is seen as an enemy of the state, not as someone exercising a fundamental right”.

The CJI along with other human rights groups such as ActiveWatch and the Centre for Public Innovation has signed the open letter.

Some MPs are already backing away form the law change. Soon after the media raised the alert about on the legislation being tabled, the chief whip of the ruling centre-right National Liberals, Florin Roman, announced on Facebook that he no longer supported the initiative.

“I have made a written request to withdraw my signature for this draft legislation,” the MP said. He said he had changed his mind after receiving “signals” from various “people of good faith” who warned him of its potentially “abusive interpretations”.

He announced that his party would vote against the legislation in parliament, which substantially diminishes its chances of ever being adopted.

However, although it is in opposition, the Social Democrats still have the largest number of seats in parliament, and could still seek the support of smaller parties to get the amendment adopted.

In their open letter, the five NGOs said the proposed legislation would undermine transparency and curb rights to free speech and free access to information, highlighting that these rights are protected by the Romanian constitution and the European Convention on Human Rights. 

Lupu of the CJI warned that trust in the state recently “has diminished, and attempts to limit transparency are further reducing trust”.

She recalled that Romania’s government had temporarily limited access to information amid the COVID-19 pandemic by concentrating the supply of information in central institutions.

Lupu advocated boosting digitalization of the public administration as a way to optimize resources and overcome the logistical problems officials can face when responding to information requests, instead of refusing to answer them, or charging citizens for exercising their rights.

Romania is not the only country in the region experiencing the same worrying trend observed by Lupu. Activists across Central and Southeast Europe have warned of similar limitations on transparency in their countries, often under the pretext of the COVID-19 pandemic.

Governments Continue to Undermine Right to Information Under Cover of COVID-19

Posted on by BIRD

The coronavirus pandemic has had a chilling effect on people’s right to information in Central and Southeast Europe, with many countries adopting legal measures which temporarily altered or even suspended obligations regarding the public’s right to information.

Thankfully, many of these measures have since lapsed with the end of the states of emergency and lockdowns, though there are other pieces of legislation in the works that could hinder people’s right to information.

On the annual International Day for Universal Access to Information, BIRN has released data showing dramatic drops in responses to freedom of information (FOI) requests by official bodies, either in time or in their entirety. BIRN keeps track of its FOI requests and produces reports on the topic, because the information gleaned from these requests enables it to produce investigative pieces and expose wrongdoing by governments, companies and powerful individuals.

“In a world where COVID-19 has caused chaos and complexity, access to reliable and verified information is more important than ever… As these last few months have shown, public health requires transparency – whether this means statistics on the scale of the pandemic, or data on public spending. Access to accurate and trustworthy information ensures accountability for actions undertaken in response to the challenges caused by the virus, as the global community works to ‘build back better’,” Audrey Azoulay, director-general of UNESCO, wrote on the occasion of the International Day for Universal Access to Information.

Since the beginning of the year, the data shows that BIRN journalists have sent at least 366 FOI requests to various public institutions in Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Moldova, Montenegro, Romania, Serbia and Turkey. So far, just 123 requests, or 33.6 per cent, have been answered, either fully or partially, while the remainder are either rejected or still not answered.

By comparison, between January 2017 and June 2019, BIRN journalists submitted 854 official requests to access public documents in Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Montenegro, and Serbia, with slightly under half (408) approved; 224 were partially approved, meaning the institutions provided only technical information; and 221 requests were either rejected or no answer at all was received, despite repeated follow-ups from the journalists.

At the time, BIRN concluded that while FOI laws in the region are among the most liberal in Europe on paper, implementation of these laws is well below European standards – a situation that has deteriorated with the spread of the pandemic.

Public institutions that so far have been most likely to answer FOI requests are the Trade Ministry and prosecutors’ offices (Serbia), the Judicial Council (North Macedonia), the Kosovo Judicial Council and local municipalities (Kosovo).

BIRN also tests the transparency of public institutions by analysing their compliance with the Open Government Partnership (OGP), an initiative that aims to secure concrete commitments from national and subnational governments to promote open government, empower citizens, fight corruption, and harness new technologies to strengthen governance. So far, four Balkan states have joined the OGP: Albania, Bosnia and Herzegovina, North Macedonia and Serbia.

Some of the commitments each state proposed in their Action Plans are related to: open data, anti-corruption, public procurement, developing e-governance, adopting laws to support transparency of public institutions etc. But despite their promise to be more transparent and open, these countries are still struggling to meet the commitments.

Albania, the oldest OGP member since 2011, has been shifting the OGP leadership from one institution to another, thus failing to fully implement its own commitments: fiscal transparency, public services, access to information, public administration and anti-corruption.

Bosnia and Herzegovina, which joined OGP in 2014, has not moved a step forward in fulfilling the commitments. Independent published reports note no improvement.

Montenegro, which joined in 2012, is still facing difficulties on internal leadership to deal with OGP and track the developments of the already committed institutions.

Serbia, which joined the partnership in 2013, has the highest number of set commitments. From a total of 14, it failed to develop an IT system to support e-governance, and failed to implement proposed amendments to the laws that were supposed to improve governmental transparency.

All four countries have failed in becoming more transparent and digitally accessible. Publishing the latest updates on their websites, such as financial reports, ministry meetings minutes, or other current and important public documents, seems like too long a process to be ever fully implemented.

COVID measures

Citing the fight against COVID-19, authorities in a number of Central and Southeast European countries extended the amount of time that state bodies had to respond to FOI requests, which media watchdogs warned at the time was part of a worrying crackdown on press freedom since the onset of the pandemic.

“We are concerned that in some cases, the suspension or delay of FOI deadlines is being used to hinder media access to information and thereby shield the government from domestic scrutiny or criticism over its handling of the outbreak,” warned Scott Griffen, deputy director of the International Press Institute (IPI).

Among those countries extending and suspending deadlines for FOI requests were Bulgaria, Hungary, Moldova, Romania, Serbia and Slovenia, while Poland passed a law suspending the activity of courts that would rule on issues related to FOI requests.

Most of these laws have since been revoked as the states of emergency and lockdown ended, however experts are warning about other legislation in the pipeline that could have a similar detrimental effect on the right to information.

In Poland, for example, legislation has been proposed by MPs from the ruling party that would exempt officials from punishment for breaking the law if they did so as part of efforts to tackle the coronavirus pandemic.

The World Health Organization advises that, instead of absolving of liability, it is important to, among other things, produce conditions for better public oversight of the various public decisions made during the pandemic.

“This… recommendation could be implemented by facilitating access to public information via digitising, obliging institutions to proactively publish information online, shortening dates for information access etc… Yet the current government is not making access to public information easier, but complicating it further on the pretext of battling the pandemic,” Grzegorz Makowski, an expert at the Batory Foundation’s ideaForum, wrote.

In Montenegro, the government has been criticised for pressing ahead during the pandemic with proposed amendments to the Montenegrin Law on Free Access to Information that have raised serious concern among experts, who say that the majority of the proposed changes would have a negative effect and take Montenegro further away from international transparency standards.

Serbia Keeps COVID-19 Medical Procurement Data Under Wraps

Posted on by Ivana Jeremic

Serbia’s National Insurance Health Fund, RFZO, the public institution responsible for medical supplies procurement in Serbia, has declined to answer an FOIA request from BIRN about the amount of medical equipment purchased during the epidemic, the names of suppliers and how much money was spent on it, saying the government had classified such data “top secret” at the outset of the pandemic.

“Data on medical devices, medical equipment, personal and protective equipment, sanitary and medical consumables procured in Serbia during the state of emergency caused by COVID-19, as well as documentation on it, are marked with the security classification ‘top secret,’” RFZO said in a written answer to BIRN. 

Under the government’s decision from March 15, which RFZO quoted, information about public procurement during the COVID-19 pandemic will not be made available to the public until the pandemic ends.

In its request sent on August 12, BIRN asked about the quantity of purchased protective masks, protective suits, gloves, hats and tests for COVID-19 and the total amount of money spent on them. 

BIRN also asked about the prices at which this equipment was sold to pharmacies, as well as about the registration of medical equipment at the Medicines and Medical Devices Agency of Serbia, which is necessary for the import and placement of those goods on the Serbian market. 

Besides that, BIRN requested information about the total amount spent out of 9.5 billion dinars, which the Serbian government transferred to RFZO on March 31, 2020, “in order to mitigate the consequences of COVID-19 disease”. That point was left unanswered, too.

Serbia reported the first cases of COVID-19 in the beginning of March and declared a state of emergency on March 15 that lasted until May 6. 

During that time, Serbia was criticised for deciding to lengthen the time state bodies have to answer FOIA requests. It left many journalists having to wait until the state of emergency was lifted before their requests could be answered. 

Serbia’s government faces many questions about its general response to the pandemic, amid claims that there was a lack of necessary medical equipment, among other things. 

At the end of June, BIRN revealed that Serbia had under-reported COVID-19 deaths and infections. Data from the state’s COVID-19 information system showed that the number of infected patients who had died was twice as large as the number that the authorities announced. Hundreds more people had tested positive for the virus in June than was admitted. 

Freedom of Information Curbs Alarm Rights Activists in Hungary

Posted on by BIRD

The Hungarian government’s decision to limit the application of the EU’s General Data Protection Regulation, GDPR, is fueling fear among the opposition and civil society organisations that human rights face further curbs in the country.

Justified by the need to stop the spread of the coronavirus, the authorities can now use the personal data of citizens without clear regulations about when they can use it, and for what purpose.

Viktor Orban’s government has also additionally limited information access by extending the deadline for public institutions to provide requested data through FOI regulations from 15 to 45 days. The deadline can be prolonged for another 45 days meaning one could have to wait up to 90 days for answers – another step backwards in terms of media freedom.

The government says both decisions will be revoked once the state of the emergency, imposed on March 11, is lifted.

But rights groups and the opposition now fear a repeat of events in 2015. In that year, the Orban government introduced controversial “crisis” measures to stop an influx of migrants that are still in force today – despite the dramatic decline in the number of migrants and refugees coming to Hungary since then.

‘Crisis’ measures that risk becoming permanent


Attila Peterfalvi. Photo: Wikimedia commons/BudayLilla 

The government restricted data protection rights as stipulated by the GDPR and the Act on Freedom of information on May 4.

It imposed a state of emergency on 11 March and extended it indefinitely on March 31.

Under the state of emergency, the government has the authority to govern through decrees, while parliament is suspended.

The latest changes come after several international reports highlighted serious declines in the quality of Hungarian democracy and press freedom.

The Nations in Transit report, issued in May by the watchdog organisation Freedom House, notably ranked Hungary as the only non-democracy in the whole of the EU.

“Hungary’s decline has been the most precipitous ever tracked in Nations in Transit; it was one of the three democratic frontrunners as of 2005, but in 2020 it became the first country to descend by two regime categories and leave the group of democracies entirely,” the report said.

The Press Freedom Index released by the watchdog organisation Reporters Without Borders ranked Hungary in the lowest place for press freedom in the EU.

It said access to information was becoming ever more difficult for independent journalists, who are now banned from freely putting questions to politicians or from attending many events.

Now, not only do Hungarian institutions have 90 days instead of 30 to answer an FOI request, – triple the previous length – but requests related to privacy will remain unanswered until the state of emergency is lifted.

This may mean journalists waiting three months to get access to vital information. And, with so many things happening fast during the state of emergency, the risk is that the information will become irrelevant or outdated.

The government justified the much longer deadline to answer FOI requests by claiming that keeping to the 15-day deadline could “endanger the fulfilment of the [relevant institution’s] public tasks in relation to the emergency”, so the decree says.

When it comes to the suspended GDPR articles, they include: the right of access by the data subject; the right to erasure (the “right to be forgotten”); the right to restriction of processing; for information to be provided when personal data are collected from the data subject, or information to be provided when personal data have not been obtained from the data subject.

Important information on the way the authorities obtain personal data, its purpose, and how it is processed, protected, or shared with other authorities, will now only become available when the state of emergency ends.

The authorities insist concern about these changes is needless. In response to a query from BIRN, Attila Peterfalvi, chair of the National Authority for Data Protection and Freedom of Information, said the decree applies only to requests for data in relation to the battle against the coronavirus, and that the data controller will also have to prove why they wish to apply the special regulation.

Peterfalvi noted also that GDPR gives participating states the right to restrict its provisions. The decree doesn’t actually take away any rights, or the right to remedy, but only delays their execution until the end of the state of emergency, he stressed.

Officials also point out that they will lift the state of emergency when it is no longer needed.

But opposition politicians and rights groups are not persuaded. They recall that the “crisis” measures imposed to stop illegal migration in 2015 were prolonged again and again – and still remain effective – long after the number of migrants attempting to cross Hungary decreased drastically.

Worryingly broad legislation


Illustration. Photo : EPA-EFE/Zoltan Balogh

The 30-day GDPR deadline to answer COVID-19-related data subject requests will resume once the state of emergency ends. This means that, until then, if someone submits a request related to COVID-19, or lodges an objection against the processing of his personal data related to COVID-19, the data controller is not required to take any steps to erase the data, rectify the data, or restrict its processing.

Furthermore, the legislation does not define the exact categories of personal data or the type of data controllers that fall under it.

As a result, any data controller taking part in the fight against COVID-19, or processing COVID-19-related personal data, can interpret the new legal provisions widely and broaden its restrictions to apply to as much personal data as possible.

Ádam Remport, data protection expert at the Hungarian Civil Liberties Union, an NGO, told BIRN that he believes the decree suspends fundamental rights, which the GDPR does not allow for.

The wording of the decree is too general and its reasoning too weak, he adds.

Remport said the GDPR is very strict about when member countries can suspend its application.

He notes that the GDPR says a restriction may only be imposed if it “respects the essence of the fundamental rights and freedoms”, and if this restriction “is a necessary and proportionate measure in a democratic society”.

Remport says the total suspension of certain rights does not fit into this category. He adds that while the decree indicates the purpose of the legislation, all the other reasoning is missing.

“The decree should list explicitly to which data and data controller it applies. It should at least justify why there is no such list,” he said.

In its current form, he added, the decree is too wide-ranging and can be applied to anything, from healthcare to the economy.

The GDPR also demands the right to an effective remedy, a right which cannot be suspended, he said. “According to the European Convention on Human Rights, and the GDPR, a remedy is real if it provides an effective judicial remedy.

“The wording of the decree doesn’t contradict this directly, as in theory one can still appeal. But until the state of emergency ends, nobody can go to court,” he pointed out.

“Nobody knows when the emergency will end, so we can’t call this an effective remedy; it is not a real remedy,” he concluded.

FOI rights undermined for years


Illustration. Photo: Pxfuel

As state communication become more centralized in Hungary – and effectively censored during the COVID-19 emergency, according to one NGO report, FOI requests have become ever more important as tools for journalists to extract relevant information about state operations.

Miklos Ligeti, legal director of Transparency International Hungary, told BIRN that the government in Budapest has been undermining this right for years.

“The Hungarian government has continuously restricted access to public data since 2013. From this point of view, the new decree is not a novelty,” he said.

The only guaranteed way to gain access to public data was via the courts, Ligeti added. “Now the time one has to wait before going to court has been prolonged,” he continued.

According to Transparency International, the decree goes against the constitution, as the right to freedom of information it refers to implies fast and timely access – while waiting months for an answer is anything but.

Since 2013, according to the government, FOI requests can be rejected if they are too “comprehensive”, as over-detailed questions are deemed a “misuse” of FIOA rights.

To decide what question is too detailed is, again, up to the data owner. The next restriction, which followed in 2015, allowed data owners to bill the information requester for “reimbursement of expenses”, if replying to the request involves “a disproportionate amount of work” for the relevant institution.

Tamas Bodoky, founder and editor-in-chief of Átlátszó, an investigative portal, told BIRN that the new moves were yet another attempt to restrict the FOI law.

“This is the third time the Orbán government is restricting FOI. This tendency, and the suspension of the GDPR Articles are the real concern – not that we might have to wait longer to get information,” Bodoky said.

Bodoky notes that if institutions demand reimbursement for work, “it is usually around 5,000 to -20,000 forints [14 to 60 euros]. To pay this money is not a problem for a lawyer or an editorial. But the intention behind this is to prevent citizens from using this tool to control power”.

His investigative portal has developed a tool through which users can send FOI requests to any public body.

According to him, data owners rarely demand “unreasonable” sums of money for reimbursement. If they do, or the info request is denied, “one can go to court. But that takes time and costs money, and people cannot afford it”.

Fortunately, he adds, judges usually favour making data public. But sometimes, despite a court judgment, data owners still withhold the data. “In that case, we remain without means, as public prosecutors will do nothing to enforce the verdict,” Bodoky warned.

Átlátszó uses FOI requests a lot for its investigations, and has faced various other methods by which state institutions hide information.

“Once the cabinet office of the Prime Minister sent us documents that were photocopied so many times – or maybe digitally blurred – that they were barely readable,” Bodoky recalled. “This shows clearly what the Hungarian government thinks about freedom of information,” he adds.

Miklós Ligeti says the broad implications of the latest moves are more concerning than their exact detail.

“If we look at the big picture, we see that the lack of reliable data makes rational public conversation impossible,” he warned. “Once there is no information, citizens cannot make responsible political decisions,” he concluded.

North Macedonia’s State of Emergency Weakens Institutions’ Transparency

Posted on by BIRD

Citing health crises and states of emergency, some Balkan countries have used the situation to restrict the right to information and media freedom.

While authorities in North Macedonia have imposed no such curbs, some restrictions in access to information have still appeared by themselves.

This is mainly because many public-sector workers now work at home, while those who remain in offices cannot always respond to information requests in the timeframe prescribed by law.

Some public institutions also say that, owing to staff shortages, they simply cannot obtain the information that citizens, journalists, NGOs and others want.

Both the institutions and those requesting information say that for now, problems are often solved in mutual agreements that allow for a delay of a few days, enabling institutions to cope.

North Macedonia’s law on freedom of access to public information does not envisage what should happen to such rights in extraordinary situations like this one.

Some of those seeking information are worried that some institutions may say that the deadlines to respond to FOIA requests should be frozen in the pandemic, and should only start to expire after the state of emergency is over. So far, no testimonies suggest that this has actually happened, however.

Delays instead of rejections


North Macedonia’s central bank. Photo: BIRN

North Macedonia passed a new FOIA act in 2019, which cut the deadlines for institutions to provide access to information from 30 to 20 days.

The law came into full force at the start of this year, once the team at the Agency for Protection of the Right of Information, which is responsible for complaints when institutions fail to do their duties, was fully formed.

The government insists that although it has a right under the state of emergency to pass decrees with the force of a law, it has no plan to restrict access to information.

“We won’t make changes. Transparency and access to public information are particularly important in this state of emergency,” Justice Minister Renata Deskoska told BIRN.

Despite that, institutions offer plentiful reasons why they can’t provide anwers on time.

These range from claims that the staff responsible for the information are working from home, are at home parenting a small child or are taking days off.

The Center for Civil Communication, CCC, an NGO, is preparing its index on transparency of institutions at the zenith of the pandemic.

CCA head German Filkov told BIRN that although it sent FOIA requests to all ministries and municipalities asking them to provide the number of their employees, just before the deadline to answer expired, it received such data from only 29 per cent of them. All the others said they would be late.

“They told us that that the people who should provide the info are not at work because of the pandemic,” he said.

“Not the people in charge of access to information but those from the appropriate sector, in our case, the sectors for human resources. They did not say that they won’t respond but that they cannot meet the deadline,” Filkov added.

Justice Minister Deskoska said such excuses are unacceptable and the law should be respected despite the state of emergency. “Institutions must organize themselves and deliver the data via mail or in other ways,” she said.

No official change in practice


Skopje’s health emergency centre. Photo: BIRN

Some NGO’s are worried that a government provision on the Law on Public and Administrative Procedures, passed on March 23, might also delay the deadlines for providing information.

This provision says that that all deadlines for administrative procedures are frozen during the state of emergency, and will only resume once normality is restored – for the same amount of days that they have been frozen.

This provision refers to services that the government, ministries, agencies, directorates and other institutions provide to citizens, companies and other subjects, such as issuing permits and delivering decisions.

However, during the debates at different institutions on how to interpret this provision, some proposed restricting the right to access to public information as well. The Interior Ministry has considered this, though not put it into practice.

“We talked to colleagues, and despite some opinions that deadlines could be postponed in accordance with the government’s provision … we decided not to stop answering FOIA requests,” Interior Ministry spokesperson Toni Angelovski told BIRN.

“The conditions are harder because the persons with certain information are not always present at work, but, despite that, we manage to reply on requests on time,” he added.

Although other institutions have also had divided opinions on this, no ministry or lower ranking institution has yet said on its web page that it is changing its practice of answering FOIA requests.

Everything remains the same as before the crisis, and the institutions still display the public info they hold, the legal provisions on how to get it and the contacts of the persons in charge.

Mirce Kotevski, who handles these procedures in the state electricity producing company, ESM, said they never reject information requests. “Some requests are complicated and demand the coordination of several sectors,” he said.

“It all takes time in normal conditions, and even more in these conditions,” he added.

“People are not always here to provide the info. We try to respect the deadlines, but in some cases, if that is objectively impossible, we ask for, and get, understanding from those who file requests for a few days’ postponement. But we never reject requests.”

Deadlines in courts are postponed


North Macedonia’s Parliament. Photo: BIRN

But if something goes wrong and an institution refuses to answer a FOIA request, and again rejects the complaint, there will be a problem. This is because the deadlines in courts have been put on hold.

In normal circumstances, the person or body that requested the information could submit a complaint to the administrative court.

Now, however, courts, including the administrative court, won’t start procedures until the state of emergency ends. Under the government provision, they are instructed to act only on high priority cases.

In reality, this tool has not been particularly useful to complainants, even in normal times, as the procedures in these cases often lasted years.

For the media and journalists, the work of the Agency for Protection of the Right of Information is more crucial, and this agency says that it is still working without delays, and has not seen any increase in the volume of complaints.

“There is no significant difference. The law envisages that institutions can request postponement of deadlines from 20 to 30 days if they need to provide more cumbersome information that takes time to collect. But the law does not envisage how to act in a state of emergency,” the head of the Agency, Plamenka Bojceva, said.

Little evidence of “active” transparency

While most institutions are trying to answer requests and maintain at least so-called “passive” transparency, some give an impression of not engaging equally in so-called “active” transparency, which means publishing information requested by law on their own, without being asked.

Some of the most important items of information of this kind are public procurement contracts.

The crisis has imposed the need of swift procurements, especially for medical institutions. Institutions don’t need an opinion from the State Public Procurements Bureau on these, but they are still obliged by law to disclose all the data on their own once they finish the procurements.

This is not the case, however. The CCC, in a recent analysis, said that by April 5, institutions had published only 17 announcements for public procurement contracts, and had notified the public that they had chosen the best bidder in only 12 instances.

According to the NGO, this raises questions about whether institutions are truly respecting their obligation to publish such information.

Even those contracts that have been published are often missing crucial details. For example, the contracts for the procurement of masks and gloves were published without detailed information about anything else, making it impossible to determine whether the price paid was justifiable.

In its second analysis on this subject, published on April 22, covering the period from the beginning of March to April 20, the NGO said things hadn’t changed much. All five contracts were missing quantity details.

CCC warns that the state of emergency, and the general shortage of needed products, are increasing the risks of corruption, because if public procurements procedures are not transparent, suppliers may use this situation to increase their prices.

Its analyses conclude that, in this time of crisis, because it is practically the only source of info, in the absence of the usual calls and tendering documentation the publication of all the data on contracts is even more important.

Montenegro Urged to Delay Law Change Debate in Pandemic

Posted on by Ivana Jeremic

On Thursday, the civic organizations and media in Montenegro have called on Prime Minister Dusko Markovic to postpone public consultations about the draft freedom of information law amid the coronavirus outbreak.

More than 50 civic organizations, journalists and media organizations warned that the lockdown had made participatory debate almost impossible.

“We have numerous restrictions on movement and there are no sessions of parliament, so there are no elementary conditions to hold a meaningful public debate on the issue,” their joint letter states.

On March 31, civil society organizations and journalists also called for a postponement, while the chair of the watchdog body Transparency International, Delia Ferreira Rubio, advised that any non-emergency legislative measure that requires public consultation should be postponed until full, active participation can be guaranteed.

Despite that, the Ministry of Public Administration has called for written comments on the law amendments to be submitted via the ministry’s email address by April 13. After that, the ministry announced, a public debate will be organized using a video conference.

“The draft law has numerous proposals that narrow our rights on information from state bodies. It also restricts the work of investigative journalists and the non-governmental sector,” the signatories to the letter said, referring to the proposed law.

The government proposed the draft law in March 2019. It would allow it to declare any information “classified” if its disclosure would affect a government body’s ability to function.

It also removes controls over the ways in which state bodies declare information classified. Civic organizations, media groups and opposition parties have insisted that the amendments are not in line with the Montenegrin constitution, or with international agreements that the country has signed up to.

The country’s culture of official secrecy has attracted European attention. The European Commission’s 2019 report on Montenegro noted that official secrecy was cited in 68 denied requests for information in 2017, well up from 30 the year before.

It described an increasing practice of declaring requested documents classified, in order to restrict access to information, as a matter of concern. The report also stated that court decisions on access to information are not effectively enforced.

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