At yesterday’s session, the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (PABiH) adopted, in the first reading, the Draft Law on Freedom of Access to Information (FOIA) at the level of BiH institutions, proposed by the BiH Council of Ministers. A day earlier, on July 24, the House of Representatives of the PABiH postponed the statement on this draft law, in the second reading, which will be stated after the vote on the proposed amendments.
Among other things, the proponents highlighted the introduction of the new principle of “proactive publication of information”, which implies continuous self-initiated publication of certain types of information on the websites of BiH institutions, as well as a “central portal of public information”, which will supposedly improve the transparency of the work of institutions at the state level and facilitate the work of journalists. At the same time, the state institutions, which until now had the obligation to proactively publish information, according to journalists, were generally not transparent or selectively published information. Therefore, media professionals do not expect much from the new law in terms of proactive transparency and general access to information of public importance, writes Media.ba.
Criticism of the new law
Numerous civil society organizations and the media openly criticized, problematized and warned about the shortcomings of the Draft Law after it was adopted by the Council of Ministers of BiH at its ninth session on April 12, 2023. Representatives of the media and civil society believe that the new law will threaten the rights of citizens. The objections relate primarily to a long list of exceptions, due to which important information could be withheld from the public, and the second major objection is that the second instance authority for deciding appeals is the Appeals Council at the BiH Council of Ministers, which should be an independent institution.
Civil society organizations gathered in the Initiative for Monitoring European Integration of Bosnia and Herzegovina suggest that this proposal “in some parts threatens the acquired rights and achievements from the existing Law and is not in accordance with international standards and practices”. As they noted in the statement, among other things, the proponent of this law turned the European standard of open and free access to public information into an exception, not a rule, which in practice could lead to the impossibility of accessing a large amount of information of public importance.
Earlier, in a statement, Transparency International BiH (TI BiH) singled out some of the shortcomings of the Draft Law: compared to the current law, which is also not good, it further sets this area back; it would differ significantly from entity laws; procedures are more complicated; the appeal procedure is complicated; the deadlines for the delivery of information are longer… They also pointed out that it is of particular concern that the Law foresees the existence of circumstances where public authorities do not have to submit a decision which, for example, refuses access to information or states that there is an obligation to keep data “which can lead to intentional errors by civil servants”.
Proactive transparency as one of the principles
The proponents justify the numerous exceptions listed in the draft law, due to which information could be withheld from the public, by introducing the principle of “proactive publication of information”, which includes the obligation of institutions to regularly publish and update information from their scope of work on their website or in another suitable way “in an easily accessible way, whenever possible and appropriate, in a machine-readable form, within 15 days from the date of creation of the information”.
The Ministry of Justice of Bosnia and Herzegovina states that the proactive publication of information will primarily make the work of journalists easier. This means that all institutions at the BiH level will have to announce in advance all important decisions, the names and surnames of employees, their professional qualifications, the jobs they perform, salaries and every decision concerning public procurement will have to be announced,” said the current Minister of Justice in Council of Ministers of Bosnia and Herzegovina Davor Bunoza.
The proposal of the law, which foresees proactive transparency, was not publicly available on the institutions’ websites, after the request to the Council of Ministers of Bosnia and Herzegovina to submit the proposal, we got acquainted with its content, and when it came to the agenda of the Parliament sessions, it was published on their website.
Until now, state institutions had the obligation to proactively publish information
Until now, institutions at the state level had the obligation to proactively publish information, especially after the decision of the Council of Ministers of BiH from 2018, when the Policy and Standards of Proactive Transparency were adopted and when all institutions of the Council of Ministers of BiH were tasked with regularly updating documents and information published on their official websites.
The policy and standards of proactive transparency were previously prepared by the Public Administration Reform Coordiator’s Office in BiH, which in cooperation with the Agency for Statistics of BiH established a mechanism for monitoring the fulfillment of proactive transparency standards at the level of state institutions. The Council of Ministers of Bosnia and Herzegovina at its 56th session held on October 26, 2022, adopted the Information on the third conducted on-line research on the application of the Policy and Standards of Proactive Transparency.
All institutions are responsible for continuously implementing standards of proactive transparency, and regularly updating documents and information published on official websites; to submit data to the Office once a year on the application of the Policy and Standards of Proactive Transparency for the purposes of regular reporting, explained to Mediacentar Vedrana Faladžić, a senior expert associate for public relations at PARCO.
The research conducted by PARCO in 2023 on a sample of 65 institutions showed that the average fulfillment of the standard of proactive transparency is 72.27 percent, which is an improvement compared to 2022, when the fulfillment of the standard was 68.23 percent, while only six institutions of BiH meet 100 percent standards, adds Faladžić and emphasizes that financial transparency is still a challenge because institutions publish annual financial plans, i.e. budgets, irregularly.
When it comes to the Proposal of the FOIA, the Office of the Public Administration Reform Coordinators Office in BiH participated in the preparatory activities but not in the drafting of the new law and gave, among other things, recommendations related to the area of proactive transparency (the establishment of a catalog of information that will be published proactively) and the establishment of an open data portal, they stated from this institution.
Journalists and activists: past experiences and expectations from the new FOIA
The editor of the Balkan Research Network in BiH (BIRN BiH) Semir Mujkić does not have high expectations when it comes to the application of the new FOIA, because in the text of the Proposal he does not see good enough solutions that will force officials to make the work of institutions more transparent, and he believes that the new law will be used by authorities to present to the European Union (EU) how they are working to bring the country closer to membership, but essentially transparency will not improve.
Data and documents that institutions publish on their websites are of key importance for the work of media such as BIRN, because the speed with which information is obtained determines, for example, how many texts can be produced annually. “The faster we can get information, it means that we can publish more analyzes and research because we will spend less time fighting with officials for documents that should definitely already be public,” explains Mujkić.
He adds that at the state level, transparency is somewhat better than at lower levels, but states that, for example, the texts of the laws that are in the procedure would have to be published on the websites of the institutions that adopt them. “Recently, the Council of Ministers adopted changes to the Law on the HJPC, and the text of that law was not published for weeks, and we had to look for ways to get to it in order to do the story. Such a text should be on the website of the Council of Ministers the moment it is adopted. It is a good practice of the Parliament of BiH where the texts are published even before the sessions”, says Mujkić and points out that the state level still does not publish the signed contracts on its website. “They justify it by saying that there is a public procurement portal, but their pages still do not have this important information. The information that is published is useful for journalists, but there is still not enough of it, as is the case in other countries, for example, Scandinavian ones”, emphasizes Mujkić.
For him, as a journalist and editor, the new FOIA will not bring solutions that the media need.
Proactive transparency, as he says, is a great solution, but it will not solve one of the biggest problems that journalists have if this text is adopted: “It is foreseen that institutions should publish the contracts they sign for public procurement, but an exception is made further down in the text when there is protection commercial interest of the companies that win the tenders. So one excludes the other. And I think it should have been resolved so that the companies have to accept that all the details of the work, including the contract, will be public because that is a condition for receiving money from the budget”.
In his opinion, the central information portal will be a good excuse for institutions to show how transparent they are, but such a solution requires a lot of resources and commitments to get something like a public procurement portal.
“We still have a problem with what the institutions think should and should not be public, and that’s why we need mechanisms to standardize the institutions’ practices that will be fast and efficient. I’m not sure that the information portal itself will succeed in that”, concludes Mujkić.
Journalist of the business portal Capital.ba Andrijana Pisarević says that the new FOIA can be good or bad, but the fact is, according to her, that even the best law means nothing with institutions like this: “Again, everything will depend on who and what we are investigating, and institutions and their representatives will find ways to hide or reformulate something. Therefore, we do not have any expectations from them”.
This type of government, she adds, regardless of the administrative level, is not competent to pass any law concerning the media, access to information and similar topics.
“The chaos we currently have is better than their arrangement. If they wanted to fix anything, they would regulate transparent ownership in the media. Everything else is decoration and an obstacle for journalists to get quality and accurate information. The luck in the accident is that there are still enough researchers and knowledge in our ranks to overcome these obstacles,” emphasizes Pisarević and says that past experience has shown that information that is tricky and that the media and the public are interested in will be kept away from curious viewers.
“The focus of investigative media work is not what is transparent, but what is not, and there is much more,” she concludes.
The Center for Investigative Journalism (CIN), together with other media and organizations, has already participated in agreements with institutions in order for proactive transparency to take root even without amending the Law. “Except for a few institutions at the state level, it was unsuccessful because the institutions were simply not interested in such a thing. The explanation of the Ministry of Justice of BiH that they will have to do this by amending the law, unfortunately, we have to take with great caution because for years we have been witnessing and suffering the consequences of the practice of many institutions that should have done something, but they persistently do not do it and do not suffer any consequences for it,” said the deputy of the CIN editor-in-chief Mirjana Popović.
When it comes to the proactive publication of information on institutions’ websites, such a practice should in theory increase transparency, but it is unclear to what extent and in which areas of work, Popović emphasizes: “Who will decide on the scope and details of published data? Who will decide on the requests of citizens (including journalists among them) who will ask for more information on proactively published data? It is our well-founded assumption that, among others, this will also be done by those in charge who have ignored, partially answered and unjustifiably denied access to data upon our requests countless times.
Therefore, as he says, it is difficult to predict a better practice due to such amendments to the Law, but one can sense new restrictions that will be explained by the reason “we have already proactively published this information on our website”, regardless of its incompleteness and ambiguity.
“Journalists usually look for more detailed, specific and comprehensive sets of data than those that could be found on the websites of institutions, because thanks to them they come to less obvious conclusions that through research there is evidence of corruption, abuse and mismanagement of the public good. Therefore, the alleged proactivity in our circumstances could be turned into additional closure of the institutions”, explains Popović.
Although he says that they would like to believe in the good intentions of legislators and institutions, past experience shows them that such changes could contribute to the additional closure of institutions and the legalization of hiding evidence of corruption and abuses in the system.
CIN’s experience shows, as he says, that in BiH there are institutions that already unquestioningly respect the Law, but unfortunately they are in the minority and “are often less visible on the hierarchy of importance”, there are also those that respect the Law when it comes to ” less inflammatory topics”, but they ignore him if they ask for e.g. data on individual incomes or details on public procurement, and there are also institutions that have never responded to any request.
“We have been fighting against every illegal act of theirs for 20 years, and we have proven many in court with the great help of our colleagues from the TI BiH Legal Assistance Center. Unfortunately, the institutions were not ashamed of this, nor did they conclude that they should continue to work in accordance with the Law, and our team continues to struggle every day with incredible obstacles when collecting public data”, explains Popović.
The non-governmental organization TI BiH comments that although the current law is not good, the proposed one generally regresses in this area, as if access to information is being reduced to an exception rather than a rule.
“There is a justified fear that even proactive transparency could be misused for the purpose of not providing some information upon request under the pretext that it was proactively published – and maybe it was not or not in its entirety,” apostrophizes the senior researcher and associate for legal affairs at TI BiH Damjan Ožegović.
He also adds that all the information that is published in advance is extremely useful because it saves resources, and first of all time, and also speeds up the search and research part of the work. “But the big problem is that for now there is no legal obligation or uniform practice, especially considering the administrative framework of the state, which is divided into several levels. And even where some important information such as financial reports, budgets, etc. are published, they are not published regularly, they are not updated, there is no universal form and it is difficult to get continuous information”, claims Ožegović and emphasizes that according to the experience of TI BiH, public institutions interpret legal provisions very poorly, especially the part related to public interest, not understanding its substance and importance.
“Our practice of over 200 administrative disputes concluded before courts throughout the country speaks in favor of this, and the problem is that public interest must be proven with each request, although this is not the job of the applicant, but the obligation of public institutions to work in the public interest. Therefore, it is not to be expected that institutions will voluntarily publish any information that is in the public interest, unless they are expressly ordered by law,” concludes Ožegović.
The same law will have to go through the procedure in the House of Peoples of the Parliamentary Assembly of BiH. The preliminary draft of this law was submitted for consultation two years ago, and it received a number of objections, but they were not taken into account, as stated in the explanation of the law itself. Although the draft was completed two years ago, the law was unanimously adopted by the Council of Ministers of BiH only at the end of this April.