Analysis of the Montenegrin draft Access to Information Law with regard to the provisions of the Public Information Law and the international Standards for the freedom of information

Constantine Palicarsky
Expert, Access to Information Programme

The context
Montenegro is a part of the Yugoslav Federation and is an autonomous subject of the FRY with its own legislative system. The country undertakes a reform to introduce functioning democratic institutions and to ensure the rule of law. As one of the basic freedoms the law on the Access to Information is crucial for the citizens of the country to enable their informed choice, to ensure the transparency and the accountability of the Government. So far there is no law on the Access to information in the republic. The Constitution proclaims the equality of all the citizens of Montenegro before the law. There is a division of powers, with executive, legislative and judicial branches. The Constitutional Court guarantees the "constitutionality and legality" in the country.

The Constitution of Republic of Montenegro
The Constitution provides for protection of the privacy of communication and the protection of the personal data. Citizens of Montenegro are allowed to access their personal data, collected in compliance with the law and are entitled to "judicial protection" in cases of illegal personal data usage.
Articles 34 and 35 of the Montenegrin Constitution are describing the "communication right" of the citizens. Freedom of thought and public expression of opinion are enshrined in art. 34. Article 35 specifically deals with the freedom of press, providing for free media and citizens' right to express and publish their opinion in the media. The censorship is prohibited. Article 38 of the Constitution guarantees the freedom of Speech and public appearance. As seen from above there seems to be no constitutional provision of the right to access information in Montenegro, apart from the right to access the personal data of the individual. There also is no text that would proclaim the relation of the international treaties to the internal laws in the republic. As this is understandable, having in mind that Montenegro is not an independent State but rather a member of a federation, nevertheless it is important to note that the provisions of art. 19 of the Covenant and art. 10 of the European Human Rights Convention are not fully replicated in the Montenegrin Constitution. While the Constitution provides for the freedom of expression it does not explicitly provide for the right to access information contained within Government bodies. There is also no direct effect of the Constitution, with an additional Constitutional law provided in the final provisions to enforce the Constitution.

Therefore we may conclude that the enactment of access to information legislation is not explicitly provided in the Constitution of the Republic and subsequent difficulties in passing such a law are a probability.

Public Information Act
The principles of the freedom of expression and the freedom of the media in particular are further elaborated in the Public Information Act. This Act regulates the media in Montenegro, both electronic and printed. As long as the goal of the current document is to analyze the status of the Access to Information legislation the PIA will be reviewed only with regard to the existing access to information provisions in it.

The right to search for information
The provisions of the PIA in this area are vague and directed at imposing limitations for the search of information rather than defining the ways the journalists may search for information. The media are obliged to publish "faithful, impartial, timely and full information" (art. 6 PIA). This information cannot be collected unlawfully (art. 7) - with a definition that includes wire tapping, hidden cameras, through theft or abuse. There are no clear definitions of what a "bugging device", "hidden camera" or "abuse" is.

The right to access information
Article 8 of the law is directly connected to the access to information, proclaiming a principle of non-discrimination of the media. The information is to be disseminated "on equal terms" Sentence 2 of this article proclaims that "Upon the request of the journalist, an authorized person representing the authority referred to in par. 1 of this Article shall provide information regarding authority activities, unless these information are declared secret by the provisions of law." According to the Free Access Information-Montenegro (brochure, Podgorica, April, 2001) motives for the draft Access to information law, there are no laws in the republic that would define and enumerate the classified information which is not to be provided to the requestors. Therefore it seems that the decision of whether to grant information on the ground of PIA is to a large extent arbitrary and does not seem consistent with the international standards. There also seems to exist no procedure to appeal these arbitrary decisions. The only possible way according to PIA is through a complaint by the respective journalist that was refused information, directed to the Council for Protection of Public Information Freedom (art. 61 subsection 2&3). The Council acts as a kind of a collective ombudsman, drafting reports and proposals to the Parliament, the competent state or local authorities. There are no penalty provisions that would sanction a government body, which fails to provide information. We couldn't help noting that all the penalty provisions deal with the responsibilities of the journalists, authors, and editors-in-chief only.

So far there seems to exist no enforceable legal framework for the access to information in Montenegro. According to the Free Access Information-Montenegro (brochure, Podgorica, April, 2001) other provisions also exist, scattered in the legislation.

Therefore, there is acute need for passing an Access to Information Law in Montenegro. There are no constitutional provisions to enshrine the right to access information and tha law on Public Information deals more with the media and the right expression rather than the right to access information held in the Government bodies.

The Draft Access to Information Law
Free Access Information-Montenegro has prepared a draft law (model) on the Access to Information in Montenegro. Further in this analysis an attempt will be made to discuss the strong and weak sides of this draft law. It is important to note that the analysis will be made through a research on the compatibility of the law versus the international standards, and no attention could be paid to the national specifics. Therefore the draft will be compared towards principles, that are not actually met anywhere in the world. These principles are drafted by Article 19 and are widely recognized.

Principle 1. Maximum Disclosure
The content of this principle is the presumption that all the information held by the Government bodies is subject to disclosure, except in limited circumstances. Furthermore, everyone on the territory of the respective country should have the right to access information. No justification should be needed for the respective body when making the decision whether or not to grant the information requested.

The reviewed draft recognizes this principle in art. 3 (Basic principles). The translation of this principle could be found also in art. 5,6 (1). This principle also is connected to the definitions of "information" and "public bodies" that need to be defined as broadly as possible. The definition in the reviewed law meets this requirement.

Principle 2. Obligation to publish
The law does establish a general obligation of the bodies to publish some categories of information - art. 6 section 3. Article 6 obliges the bodies to establish and maintain a public registry. However, the Principle 2 requires the government bodies to publish also information on requests, complaints or other direct actions taken against the respective organ; guidance on the processes by which the public may influence the decision making; the content of decisions or policies that could affect the public along with their motives and the background materials that justify the decision of the body. These categories of information are not specifically enumerated in the draft. Furthermore, there are no procedures to guarantee the free access of the requestors to the public registry that is to be created. It would be reasonable to expect that the active disclosure of the information will not work efficiently in the current revision of the draft, because of the lack of procedures and the limited scope of information to be disseminated by the government agencies. It is important to note that the categories of information listed above constitute the most limited scope of the information to be provided actively. In the further revisions of the draft more types of information could be also included. It is also a way to reduce the burden on the administration, because if this information is available in reading rooms the requestors will be able to more clearly define their application and some of the requests for information will be avoided. The information could be published over the INTERNET, in special reading rooms or Bulletin boards in the agencies.

Principle 3. Promotion of Open Government
The content of this principle constitutes the obligation of the Government to educate both the public at large and the public servants on the access to information procedures. The reviewed draft does not include provisions in this direction. There are no legal norms to oblige the Government to tackle the culture of secrecy or the ignorance of the public at large. It is important to note that this component of the law is crucial for the further implementation. Without a well-trained public administration and educated requestors it is doubtful whether the law will be implemented at all.

Principle 4. Limited Scope of Exceptions
The principle states that the exceptions should be clearly defined and narrowly drawn and subject to strict "harm" and "public interest" tests. This principle is well translated into the reviewed draft. The listed legitimate aims however need to be clarified in order for them to be applicable. As mentioned in part 1 of this report there is no law on the classified information in Montenegro. In the absence of such a law there is danger that the administration will interpret the principle broadly and will create obstacles for the access to information. The exceptions need to be clearly and exhaustively stated either in this law or in another (e.g. classified information) law. Furthermore, it is difficult to comment how will the tests provided in the draft work. It is clear that the judicial review will be substantially facilitated with those texts existing in the law. However, it is also the public servants that will have to apply them - and it is unclear how will the law function on this level. A possible recommendation would be to elaborate more on this problem in the law, providing clearer guidance for the administration on the application of those tests.

Principle 5. Processes to Facilitate Access
This principle reads that the requests for information should be processed rapidly and fairly; and that an independent review of the refusals should be available.
This principle is well translated in the law in Section 3 (Procedure). There are 2 problems we may concentrate on here - the first one being the problem of time limits and the second - the tacit refusal. The time limits provided in the law (art. 13 /1 ) are not realistic. These limits vary in the different legislations, but they are rarely shorter than 2 weeks. In the current draft the time limits are 7 working days. The administration will not have the technological time to process the application.
The second problem is the tacit refusal. It is a statement that if the respective body does not answer within the time limits specified, refusal is presumed. It is important to review the Montenegrin Administrative Procedure Act to determine whether such a general presumption exists. The current draft does not provide for it. Usually the possibility for a tacit refusal should be explicitly stipulated in the law.
It is also impossible for us to analyze the judicial review procedure, as we do not have the Administrative Procedure Act.
There is no procedure for administrative review before an independent administrative body, though it is unclear to what extent it is possible at all in the Montenegrin legal system. More enhancements might include clarification of responsibilities of the heads of the government bodies, appointment of officers to tackle the information requests and provisions for monitoring of the implementation of the law, including regular reports by the government agencies.

Principle 6. Costs
The principle reads that the individuals should not be deterred from making requests for information by excessive costs. This principle is met in the draft law.
The law provides for covering the direct costs incurred. Some of the associated costs are to be paid only partially by some categories of information requestors. Thus a beneficial regime is established in cases that are of public interest.

Principle 7. Open meetings
The principle reads that the meetings of public bodies should be open to the public.
There is no specific referral in the law to the open meetings. There is nothing in the law however that would limit the access to the public bodies' meetings either. In the US traditions these laws (open meetings and freedom of information) are separate. It would be advisable to include a separate chapter in the law dedicated to the open meetings, explicitly proclaiming the openness of the Government bodies' meetings.

Principle 8. Disclosure takes precedence
The principle reads that laws inconsistent with the principle of maximum disclosure should be amended or repealed.
This principle is usually difficult to translate in the continental legal tradition. The problem is the relation between "general" and "special" laws. Nothing in this draft provides for repealing contradictory legal texts. Surely such texts exist. A thorough analysis of the Montenegrin legislation is needed to identify the contradictory provisions and to repeal them.

Principle 9. Protection for whistleblowers
Article 18 of the draft law provides for protection of public servants that disclose information on wrongdoings in the respective public bodies. The two-part test provided in the law is important, but again it could work in the judicial review only. More training and education for the administration is needed in order to have this text functioning. It is also doubtful how will this text work in the Montenegrin legal environment. In the Bulgarian legal environment it would not work. One of the questions that appear is connected to the "bona fide" concept. It is to a large extent a common law concept and we are unable to determine the extent to which it could operate in Montenegro.
The context 1
The Constitution of Republic of Montenegro 1
Public Information Act 2
The right to search for information 2
The right to access information 2
The Draft Access to Information Law 3
Principle 1. Maximum Disclosure 4
Principle 2. Obligation to publish 4
Principle 3. Promotion of Open Government 5
Principle 4. Limited Scope of Exceptions 5
Principle 5. Processes to Facilitate Access 6
Principle 6. Costs 6
Principle 7. Open meetings 7
Principle 8. Disclosure takes precedence 7
Principle 9. Protection for whistleblowers 7