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A 'Sine Qua Non' for democracy and fighting corruption |
BELGRADE, 8.2.2003. (Beta) - In industrially developed countries experience shows that legislation allowing free access to public information is a basic condition for the further development of democracy and the chief tool in fighting corruption.
The Serbian government recently announced that its ministries are debating a bill regulating this matter.
The bill was prepared by experts from the Center for the Advancement of Legal Studies in Belgrade, in accordance with the standards specified by Article 19, non-government organization based in London and a leader in the area of access to public information.
According to one of the authors, Sasa Gajin, for citizens to be able to directly keep track of how state bodies operate they need to have guaranteed access to information in the possession of these bodies. In this case, free access to such information forces a government to be more responsible toward the public, which has the added benefit of providing that human rights are better protected. The law clearly defines what public information is, which government bodies are subject to checks and required to release information, who has the right to ask for information and what sort of rights are involved, what is the procedure for seeking information, under what conditions can access be legally denied, and what is to be done should access be denied without justification.
The law says that all people, be they citizens, residents, visitors, or foreigners, have the right to obtain the information they are interested in. "Regardless of whether a person lives in New York, Beijing or Moscow, whether he knows or does not know where Serbia is, whether he has visited Serbia or not, or whether he has anything to do with us or not, he must be allowed to know how many garbage dumpsters the Belgrade City Assembly has purchased, from whom, at what price, including all other details of the transaction. If the operation of government bodies is public, it cannot be public only for the citizens of a certain country, but for all people," says Gajin.
Quoting examples in other countries, Gajin also says many people know that British government bodies are more closed to the public than is actually necessary. "An Englishmen who wants to know what the state security service in London is doing cannot access such information invoking British laws, but he can resort to other sources. If he knows that British and American bodies frequently cooperate, then he can use the freedom
quarantined to him by the U.S. Freedom of Information Act, and ask U.S. bodies, via the Internet, to release the information he is searching for. This can also be done from Belgrade."
To exercise this right, according to Gajin, a person does not have to give legal grounds for his inquiry. "This is simply a right of the public to know what government bodies are up to. The assumption is that the public has a right to know. It is prohibited to ask a person why he is inquiring about something."
However, Gajin adds that it is unrealistic to expect all government matters to be accessible by the public. "If you ask the Yugoslav border service when its units are patrolling the area between two points on the border with Hungary, you
can't hope to actually be advised of this. Not one such service in the world would release such information, because it compromises security."
Gajin says this is why a general rule regarding limitation must be established, that would prevent the state from arbitrarily deciding when to allow and when to deny access to information. There is a list of such instances when access in denied, and the interest involved must be defined by the constitution and laws, so that a government cannot act at its whim.
"The interest to protect a country's secrets or security has to be above the public interest to know. In other words, when you ask for data on the movement of a certain military unit, the interest of the
country's security clearly has precedence over your interest to know. Furthermore, the denial of your interest to know in this particular case helps to protect the
country's security."
According to him there is yet another standard of great importance observed in the bill -- an undeniable legal assumption -- meaning that information crucial to the
population's health or the environment must always be available to the public. "There are no secrets if there is an ammonium leak, or in case of radiation, or if there is a toxic spill in the Ibar River."
It is also assumed that all information dealt with by the public institutions and data related to their operations, or which is stored by them or in some other place on their orders, is to be considered public information. "I would only like to call to your attention a scandal related to the opening of safety deposit boxes at Komercijalna Banka about two years ago, when very important documents belonging to state bodies were discovered," said Gajin.
Explaining what public information actually is, Gajin explains that whatever a vice premier does at his desk in his office is something that the public should be able to know about. "This is every document on his table or in his cupboard, everything related to his carrying out his duty."
In that case, however, as opposed to the previous example concerning the safety of the people and the environment, where the state cannot contest the need to disclose all information, here it can try to prove that a certain piece of information should not be publicly disclosed. "The state can try to prove that what the vice premier wrote on his PC was his personal correspondence, a letter to a friend, a professor from Iowa, who has invited him on a skiing trip, and that this is not public but private information."
Gajin stresses that what is essential is that an individual does not have to prove that something is public information, but that the burden of proving the nature of such information lies with the state, which has to demonstrate that a piece of information is not public and justify its claim.
The law defines three basic rights. The first is the right of every person to know whether a certain public body possesses certain information. "For instance, you would like to know how much the
premier's trip to Adis Ababa cost, or whose plane he used to travel to Russia, or how much his visit to China cost. You can ask him personally, his chief of staff, the ministry of finance, Yugoslav Airlines, the air traffic control service... All these bodies could answer your question, but you do not know which one. This is the first right you have. A public body must answer your question."
The second right is access to documents. Regardless of whether it is printed on paper, filmed, taped, photographed, or stored on computer disks or CDs, information has to be made available to those asking for it. There is also a third right, to a copy of a desired document.
Transparency Serbia executive director Nemanja Nenadic says the most important part of implementing this law will be to inform people about it and what rights it guarantees them.
"So far, citizens were not even aware that they have the right to access public information, or had little hope they could actually exercise it. This is why they need to be thoroughly informed about all its provisions."
According to him, a law on free access to public information is a precondition for the transformation of the culture of secrecy in the public services into a culture of openness. "Even though public institutions already have an obligation to disclose public information, this law should ensure that this obligation is not just written on a piece of paper, that it is real and that there is a proper procedure through which people will be able to learn what they want to known."
He stresses that people should be encouraged to exercise the rights guaranteed by this law, and that the state will also benefit because a government that allows public access to its operations and public monitoring will earn the trust of voters in elections.
Nenadic admits it will be difficult to enforce the law not because it might collide with other laws and the constitution, which can be avoided, but because most bodies do not have well organized files.
"Thus it will not necessarily be unwillingness on the part of government bodies to disclose information that might cause difficulties, but a lack of speed, promptness, or ordered archives, even lack of a basic register on information. Time and money will be needed to sort out the existing documents and train staff how to act."
This is why the law stipulates that state bodies are obliged to improve access to public information, meaning that among other things they will be required to appoint a spokesperson to assist people seeking information in exercising their rights, publish brochures giving basic data on certain operations, as well as training staff.
As one way to facilitate enforcement, the law will create an ombudsman, an official who is solely to deal with the protection of the freedom of information.
The bill also envisages ways to protect sources of information, so- called "whistle blowers." According to Gajin, this involves the protection of insiders, people working in certain bodies who signalize to the public that something illegal is going on: that someone was bribed or has committed some other offense.
"We have to absolve of all responsibility anyone disclosing information he became aware of in the course of performing his duty. If someone conscientiously passes on information he stumbled on while doing his job and it concerns a crime or some other sort of illegal activity, he cannot be held accountable."
Nenadic agrees that in any case in which the public interest is above all other interests the source of information needs to be protected, adding that the bill for the first time includes ways to do this. As one example he cites the case of a bank employee in Croatia who revealed data on a bank account held by the wife of then Croatian president Franjo Tudjman. "According to bank regulations, she did not have a right to do that. However, the public interest to have this information disclosed prevailed, because a corruption scandal was behind it."
The concept of protecting a source of information, according to the the people we talked to, will greatly help in the struggle against corruption.
"This bill is a part of a package of anti-corruption laws, although this is not its basic purpose; it is obvious, however, that its effects in this regard will be substantial. Consider just the fact that many people are ready to pay for a piece of information which by all logic should be available to them free of charge," explains Nenadic.
Gajin also believes that one of this bill's effects will be a more efficient fight against corruption, which as a complex social and legal phenomenon, requires secrecy. "Corruption, be it an illegal or a socially-undesirable phenomenon, is never public. People receiving or giving bribes will always hide, and this bill strives to ensure transparency in the operation of state bodies and gives the public a tool to learn about such things. The fact that there will be protection for those who decide to say who is accepting bribes or is involved in other illegal activities will also be of great assistance."
Laws allowing for free access to public information exist in most western countries. Those in effect in the U.S. (since 1966), Canada (1983), Sweden (1949), and Australia (1982) are considered the best. Now almost all former communist countries have such legislation except Yugoslavia, Slovenia, Croatia, Belarus and Russia.
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Source:
Beta News Agency, by Ana Filipovic |
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