Invitation to the Civil Society Organizations and Citizens of Bosnia and Herzegovina to Participate in the Public Consultation on Adoption of the Amendments to the Law on Free Access to Information in BiH

On Friday, 31^st May 2013, the Ministry of Justice of Bosnia and Herzegovina on its official web site published the Draft Amendments to the Law on Free Access to Information in BiH, leaving the possibility open for the public to submit their comments on the Draft Amendments to 31^st May 2013.

A number of Civil Society Organizations have analyzed the proposed Amendments and established that they detriment the right to access to information, make extremely restrictive provisions regarding information containing personal data, abolish the public interest test, and that the Law on Free Access to Information is actually turned into the Law on the Prohibition of Access to Information.

Considering the fact that this Law represents the basic mechanism for exercising the right to access the information, the Draft Amendments exceptionally limit these rights by introducing the principles of automatism, which, with a few exceptions,  prohibit access to information containing personal data. This action is completely different from the hitherto principles, which allow access to information with the exception in cases when a public interest test has to be conducted.

In this way, the Law will cut access to information and some additional ways will be opened to the corruption, which will be impossible to prove or to spot on the basis of specific documents and data, under the pretext of protecting the privacy of individuals.

Representatives of civil society, the academic and professional community were not invited or included in the working group who participated in the process of making the Draft Amendments to the Law on Free Access to Information in Bosnia and Herzegovina. So, we use this opportunity to express our opinion about unacceptability of such Draft, and to invite the Institutions to address the issue of an already familiar topic regarding legislation on free access to information in BiH, which so far has not been discussed in an appropriate manner, – inconsistent legislations at different government levels, admonishments of more severe penalties and establishing a supervisory body for the implementation of the Law.

We invite the representatives of civil society, as well as citizens-individuals to express their opinion on the Draft Amendments to the Ministry of Justice BiH until 31^st May 2013. Below is a sample letter that you can sign and submit on this email address: konsultacije@mpr.gov.ba.

With kind regards, yours:

–        Center for Informative Decontamination of Youth

–        Center for Investigative Reporting

–        Open Society Fund Bosnia and Herzegovina

–        Foundation Center for the Public Interest Advocacy

–        Transparency International Bosnia and Herzegovina

–        UG Why not, Sarajevo

Sample letter of Civil Society Organizations and citizens of Bosnia and Herzegovina to the public consultation on the Draft Amendments to the Law on Free Access to Information of the Ministry of the Justice BiH

Ministry of Justice Bosnia and Herzegovina

Trg BiH 1.

71000 Sarajevo

Bosnia and Herzegovina

Commentary on the Draft Law on Amendments to the Law on Free Access to Information of Bosnia and Herzegovina

Dear Sir/Madam,

In accordance with your invitation to participate the public consultations on the Draft Amendments to the Law on Free Access to Information in Bosnia and Herzegovina, we are submitting our comment:

• Current Draft Amendments to the Law on Free Access to Information call into question the right to obtain information as an integral part of the right to freedom of expression, proclaimed by the European Convention on Human Rights and BiH Constitution;

• In relation to the current Law, the Draft Amendments to the Law on an unacceptable manner determine the principles of access to information, inadequately define the terms of the Law and unnecessarily exclude a whole section that relates to personal data with the intent to protect the right to privacy and other private interests;

• The alleged aim of the Draft Amendments is to protect personal and right to privacy. According to the documents of the Council of Europe and the European Union, the protection of personal data apply to protection of processing of those data and in such documents there is nothing that suggests the need for automatic disabling free access to information.

• From the proposed formulation of the Act 4 of the Draft Amendments to the Law it is evident that new principles have been introduced- non-disclosure of information in the case of request to access to information relating to the protection of privacy(Quotation, Paragraph 1 :’’ The competent authority acting in accordance with this Law pertinent to protection of personal data would restrict access to information or a piece of information if its disclosure threatens the  right to privacy and other legitimate private interests.’’) Current Law is based on opposed principle- disclosure of information is a rule and non-disclosure is an exception. The introduction of a new principle of non-disclosure of information, as well as the automatisms in the actions of the authorities, which are contrary to the fundamental purpose and the spirit of the Law on Free Access to Information in the world and even in our country, certainly opens the way for the authorities to abuse the Law and to introduce restrictions in all cases excluding those provided as an exception.

• The crucial mechanisms shall be limited by the same provision of the Draft Amendments- the public interest test. Namely, the definition of the restrictions provided in the Article 4 Paragraph 1 of the Draft Amendments, entirely excludes the Article 9 of the current Low on Freedom of Access to Information (‘’ The Public Interest Test’’). The Article 9 establishes the principle of resolving all claims on case-by-case basis, what is also contrary to the purposes and spirit of the Law on Free Access to Information.

• Referring to the annual report of the Ombudsman for Human Rights BiH, we want to remind you that problems related to the implementation of the Law have not been registered, and if requested information contained some personal data, which could compromise the privacy of the citizens, the public authority using the public interest test could make a decision on disclosure exception.

• Finally, instead of seeking the possibility to preserve the fundamental values of the Law on Free Access to Information and harmonize other laws with this one, these Draft Amendments include other proposed principles into the Law on Free Access to Information, what is an illegal practice (Quotation, Article 26, Paragraph 4 of the current Law: ‘’ Legislation adopted after this Law, whose purpose is not to change this Law, shall not limit the rights and obligations set out in this Law’’.)

To sum up, free access to information is conditio sine qua non of a democratic process and represents constitutional category that appears as an independent right, or as an integral part of the right to freedom of expression set by the European Convention and BiH Constitution. It is a fundamental democratic right of every citizen and highly important tool used for ensuring the rule of law and good governance. Access to information enables citizens to control their elected representatives and to protect them from abuse, also allows the participation of citizens in setting priorities of government and it is linked to the good government concept, which implies an open government that operates on the principles of efficiency, transparency and legality.

For these reasons, your Draft Amendments to the Law on Free Access to Information is totally unacceptable to us, and we invite you to abandon the public consultation process and to organize broader professional and honest discussion which will lead to the real improvement of the legal framework on access to information.

Signature of the person authorized to represent the organization and signature of the citizen-individual, citing the official name of the organization or the names of the citizen.