Fruitful warning to "forgetful" public authorities
Personal opinionAbout a month ago, acting as the Commissioner for the Information of Public Importance, I sent a letter addressed to 119 public authorities, warning them of their obligation to act in accordance with the instructions given in Commissioner's Decisions and of legal consequences of failure in fulfillment of such an obligation.
The decisions of the Commissioner are binding for public authorities they refer to. They are binding not because I believe it, but because that's expressly stipulated in Article 28 of the Law on Free Access to Information. Non-doing by public authorities is therefore a conscious breach of the law. Although it is not logical that public authorities should break the law and fail to meet their obligations, the idea can not be absolutely dismissed. For that reason, in the second paragraph of the above mentioned article, lawmakers envisaged the obligation of the Government to ensure the execution of the Commissioner's decisions. Unfortunately, so far, in enforcing the Law, the Government did not properly fulfill this obligation. In dozens of cases, when citizens, journalists, NGOs or someone else asked for the Decision of the Commissioner to be executed, the government has so far never done it, not even once. Since the Commissioner has neither legal powers nor other means to do it himself, certain number of his Decisions remained unexecuted.
This issue may not be of a great importance in its quantitative aspect, but in view of adhering to the principle, it certainly is. Namely, in the previous practice of the Commissioner for the Information of Public Importance about 4.500 cases were dealt with, mostly complaints. Over 90% of the cases were solved and the party asking for information got the information which was previously withheld. In most cases, it wasn't even necessary to pass a formal decision; the mere intervening of the Commissioner was enough. To this context, the number of 100 to 200 unexecuted Decisions is not dramatically high, neither in absolute, nor in relative terms. But, although we are talking about only a few percent of the total number of cases, in terms of adhering to the principle, the importance failure in executing of a compulsory order should never be underestimated.
For that reason, since the Ministry of Culture and Information, competent in this case, didn't want or wasn't able do it, I issued the warningand sent letters to 119 addresses. I believed it would not be in vain. And it was not. The result is that dozens of decisions were executed at last, including some very attractiveones. I would like to single out one of the results of this action, very interesting (at least for me), unusual, a bit bizarre. It relates to the city of Nia. As it turns out, the city Government chronically had problems with enforcing the Law on Free Access to Information, not following the Commissioner's orders. There were always some Decisions which were not executed, and there were some of those even at the moment when I sent the warning. Now, for the first time, there is none. The interesting, even provocative part is the fact that this Copernicus-like turnaround in the attitude towards fulfilling the obligations occurred at the moment when there was no government in Nia. There is, of course, a city management and it works, but political government hasn't been established yet. This complete turnaround in the absence of Government, doesn't, of course, naively indicate that political government is (not) necessary, but it surely refers to the fact that the obligation of the government, tending to be a democratic one and tending to build a state based on the rule of law, is to understand and support the primacy of the law, legitimacy and profession over political interests, partisan strength and voluntarism, at every moment.
Normally, all Decisions were not executed, not even after a warning. Some of the information is still withheld from the public, despite the Commissioner's Decision instructing that the information should be released, including some which are quite obviously the information of public interest par excellence. Is it disputable that such information are, for example, the information on highway concession, several capital investments in Belgrade and Serbia, sale of Mobtel, number of wiretapped citizens, free use of real estate in public ownership, purchase of famous colored railway cars, number and causes of the deaths of newborn children etc.
In a well-organized country, even in a country which tends to be well-organized, it must be undisputable that it is absurd, very damaging and extremely irresponsible for public authorities, regardless of their level, not to respect their legal obligations. It can not be tolerated to anyone, and it is particularly unacceptable for the Government bodies, namely those who should normally have a special role and responsibility in implementing the principle of legality. The consequence of stubborn non-fulfillment of the obligations, contrary to the law, and after an explicit order was given by the authorities, is damage to the reputation and faith in the institutions and laws of Serbia.
It is completely inappropriate for bodies such as the Ministry of Infrastructure, MUP or the State Attorney of Serbia to significantly add to such consequences. It is inappropriate in any case, but particularly in cases when the information is asked about a matter of obvious, strong and of course quite legitimate interest to the public.
A new attitude of the Authorities towards the public is necessary, far more adequate to democratic relations. That's why one of the priority tasks of the new government must also be an increased responsibility for such actions. And of course, a lot better response to its own legal obligations related to the provision of conditions for consistent implementation of the Law on Free Access to Public Information, and the obligation of the Government to ensure the execution of the Commissioner's decisions, if necessary.