ISSUE 13
Author: Dušica Nofitoska

The Law on Free Access to Public Information and Access to Public Information in Practice

Free access to information is a human right. It is crucial for the development of open and democratic societies, and for ensuring that governments are accountable to their citizens. Through this powerful instrument, which is a key pillar of developed democratic societies, citizens can have insight into how public money is spent, whether public institutions comply with the laws, and whether public officials and civil servants have abused their positions or authority.

Freedom of information is recognized as a fundamental human right in international law. In the Republic of North Macedonia, this right is guaranteed by the Constitution and is regulated by the Law on Free Access to Public Information. This law regulates the conditions, manner, and procedures for exercising the right to free access to public information and pertains to public information held by state authorities, municipal bodies, public services institutions, and other bodies, organizations, and legal and natural persons exercising public authority as determined by law.

The Right to Free Access to Public Information is available to all legal and natural persons. The law provides three channels through which persons can request access to public information – orally, in writing (on paper), and electronically. The law clearly states that the person requesting information is not obliged to explain why they need the requested information, nor should anyone ask them to explain.

In the thirteen years since the adoption of the Law on Free Access to Public Information, there has been demonstrated improvement in the responsiveness of public institutions and officials in sharing requested information, as well as an increase in the exercise of the right to access public information. Still, citizens, civil society organizations, legal entities, and journalists face obstacles when requesting and accessing public information, and there are challenges which prevent persons and institutions from fully exercising this right.

There has been a noticeable increase in the openness and understanding of the obligation to provide access to public information by a growing percentage of public institutions, as evidenced by the appointment of contact persons. However, the law is not yet applied consistently, and institutions are not yet fully transparent, which limits and hinders the flow of information.

The procedures for accessing public information are still overly complex, and the public institutions know how to exploit legal ambiguities to avoid fulfilling their duty to expeditiously respond to requests with detailed and accurate data and information. Public institutions and officials often still consider requests for access to public information as “meddling” in their everyday work or as a way to “waste and flit away” their time, rather than as a legal requirement and obligation. Often, it happens that public officials or institutions do not divulge information on the grounds that they do not have that information, when in fact they are legally obligated to have that information and to disclose it upon request. These cases demonstrate a neglect of their duty to collect, systemize, and update information and data that should legally accessible to the public. Also, some data and documents are classified as confidential, without sufficient explanation, which could be perceived as a misuse of legal exceptions and loopholes.

Citizens still have insufficient knowledge regarding their rights upheld by the law and the procedures for obtaining public information. A particular problem with regard to the practical application of the law is that the procedures required to obtain information from public institutions remain overly complicated and time-consuming. Citizens claim that they know they will not receive desired information without difficulty, and they do not want to waste time on administrative procedures that may not yield timely results. For them, the wait of up to 30 days for a first response from officials, possibly followed by a waiting period for the evaluation of complaints or appeals, is time lost. The process of providing proper access to public information requires fast and effective communication.

While the Law on Free Access to Public Information provides for reactive transparency (providing information in response to requests), institutions should also demonstrate proactive transparency by regularly publishing information and data online. Only a small percentage of institutions regularly publish online information about their programmes and budgets. Moreover, information available to the public is often presented in a way that is not easily understandable.

One positive step towards increased transparency by the government, is requiring ministries to publish their basic budgets and program documents online and to prepare and adopt strategies for the transparency of operations. However, there is still no unified approach among the ministries and the aforementioned documents can be found in different sections of their webpages.

Data show that NGOs submit the most official requests for public information, followed by citizens as natural persons and then journalists. According to a 2018 report by the Commission for Protection of the Right to Free Access to Public Information, state institutions (particularly the parliamentary assembly) receive the largest number of Freedom of Information requests, followed by municipalities, courts, public enterprises and institutions, and health institutions. In 2018, the number of citizens who issued official complaints to the Commission increased. Failing to respond to requests was the number one reason for official complaints, and a high percentage of the complaints resulted in a positive outcome for the those who requested information.

While there have been positive changes with respect to institutional transparency and access to public information, there is still room for improvement with regard to the practical application of the law, the simplification of procedures for requesting information, and proactive transparency.

The timely disclosure of information is essential for increasing the transparency of institutions. Enacting stricter penalties for public officials who do not respond to information requests in compliance with legal deadlines would be an effective way to improve compliance with the law and reactive transparency. If public institutions commit to publishing accessible information online, citizens, civil society, and journalists can stay informed without having to engage in complicated or lengthy administrative procedures to access information.

As a final word, greater openness and transparency strengthens institutions, which ultimately leads to more satisfied citizens.

Dushica Nofitoska is a lawyer, who passed the European bar exam and completed her master’s studies in International Law and International Relations. She currently works at the Macedonian Young Lawyers Association.

Foto: Macedonian Young Lawyers Association

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