Freedom of access to information Act for Bosnia

Summary

Most countries in the international system have Constitutions and statutory laws that aid in the governance process. The freedom of information has become one of the greatest components that define democracies. Many countries have been implored to establish laws that ensure the citizenry of the respective countries is provided with information when required. Today, more than ninety countries have laws that require public officials to turn over the public records. In Bosnia, the freedom of information law has played a critical role in ensuring citizens have access to public information. In 2000 Bosnia adopted the Freedom of Information Act (FOI) at the state level and in 2001, it was spread in both of its constituents.

Background

The Constitution of Bosnia guarantees freedom of the information and the press. Bosnia was one of the first countries in the Balkans to enact the Freedom of Access to Information Act (Eralp 30). Initially, the Constitution of Bosnia did not pay much attention to the right of the citizens to access information. Specifically, the Dayton Peace Agreement signed in 1995 did not have provisions that would allow the citizens to access public information (Banisar 15). In 1999, the High Representative in Bosnia initiated a process that would ensure the development of a law that would allow the right of the public to access information (Banisar 15). The consultations to enact the law started in earnest after the decision of the High Representative. The Organization for Security and Cooperation in Europe (OSCE) played a significant role in drafting the law (Banisar 50). Moreover, OSCE helped in ensuring extensive public participation and providing legal expertise. In 2000, Bosnia and Herzegovina adopted the legislation at the state level and in 2001 the same was implemented in its other constituents (Banisar 15).

Provisions of the Freedom of Access to Information Act for Bosnia

In accordance with Article IV (4) (a) of the Constitution of Bosnia, a parliamentary session of the house of representatives was held in October the year 2000 with the aim of adopting the freedom of access to information act (Department for Legal Affairs). The essence of the law was to enhance the right to access the information by the citizens. The legislature understood that access to information was fundamental to the effective functioning of any democratic system. Moreover, the House of Representatives wanted to ensure the public officials become more accountable to the people. Additionally, the law was meant to enhance public participation by allowing the people to access information (Department for Legal Affairs).

Purpose of the Act

First, the Act established that every individual had the right to access information to a greater extent consistent with the interest of the public. The Act also denoted that the public officials had a duty of disclosing information to the public as appropriate (Department for Legal Affairs). Second, the law acknowledged that information is a valuable public resource. Ideally, the law stated that the public authorities held the information in trust for the people of Bosnia. As a consequence, the purpose of the Act was to allow public access to information and promotion of greater accountability by those entrusted with the information (Department for Legal Affairs). The move was determined as a significant democratic process. Finally, the Act allowed every citizen to request an amendment of the law and to comment on the personal information in the control of public officials (Department for Legal Affairs).

Critical Analysis

The Act provides guidelines and circumstances under which information can be provided or curtailed from the public. In article 4, it states that every citizen and a legal person in the country have a right to access information in the hands of public authorities (Department for Legal Affairs). The public authorities have a corresponding duty to avail the required information to the public. In Article 5 the Act provides circumstances under which access to information may be denied or limited (Department for Legal Affairs). It states that the requested information may not be disclosed to the public or an individual on a case-by-case basis. The public officials have to determine in a competent fashion and must do so upon considering the public interest test defined by the other provisions of the Act (Department for Legal Affairs).

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There are circumstances under which a public official can exempt access to public information. For example, access to information may be denied in the interest of public safety, defense and security interest as well as foreign policy (Diallo and Richard 272). Moreover, access can be curtailed to ensure crime prevention and detection of crime. The monetary policy interest can also ensure that an individual or the public is denied the right to access information (Department for Legal Affairs). Additionally, an exemption may be based on the protection of a deliberative process of a public official.

Article 7 states the ground for exemption in so far as confidential commercial information is concerned. In the event that a public official determines that the request to access information involves a confidential commercial interest of a third party, the public official has a duty of writing to the person involved concerning the specifics of the interest (Department for Legal Affairs). The notice is intended to inform the third party of the intention to disclose the information. The third party has fifteen days upon receipt of the notice of state grounds under which the information is determined to be confidential (Department for Legal Affairs). The public authority has the obligation of determining the facts of the case and claim exemption based on the response from the third party. In Article 8 the Act states that authorities can claim an exemption when the disclosure might infringe on personal privacy (Department for Legal Affairs).

Section three of the Act puts into perspective the procedure of accessing information. First, a natural or legal person can present a request to a public authority determined to be competent. Second, a request for access must be done in writing and sufficient details provided on the objectives of requesting the details (Department for Legal Affairs). Requesting personal information must satisfy the authorities that such a move is not designed to infringe on a person’s privacy. However, the Act states that the public authority has no authority of seeking a justification or reason for a particular request. The mandate of the public authorities is to process the requests in a competent manner upon receipt.

In the event that a public authority cannot comply with a particular request owing to the lack of a formal requirement as provided for in Article II (2), (3) then the official has to respond no later than eight days from the day a request is made (Department for Legal Affairs). The public official has to notify the person in writing by stating why a request cannot be granted. The Act provides for an ‘appeal’ in the event that the requester is not satisfied with the reasons given for the rejection of the request. Public authorities must indicate the appeals body that the requester can refer to when seeking to have the decision to deny the request revisited (Department for Legal Affairs). The country’s Ombudsman has the obligation taking up the issue of the requester and ensuring that justice is served (Ombudsman): (Department for Legal Affairs).

Public authorities have an obligation of assisting legal and natural citizens in seeking information as defined in the Act. Each public authority must appoint an ‘Information Officer’ who processes requests as established in the Act. The name and contact of the officer must be forwarded to the Ombudsman. The officers appointed under this Act must discharge their responsibilities in accordance with the provisions of this law by providing, exempting or advising the requesters on the right to access information (Department for Legal Affairs). The functions and responsibilities of public authorities are defined under this Act.

Article 15 defines the language of access to information. It states that access will be granted in the official language used in Bosnia (Department for Legal Affairs). The Act also provides for the use of an original language if it is different from the official language. The public officials must translate the requested information into a language that is understood by the requester.

Article 16 of the Freedom of Access to Information Act states that public officers should not levy or charge for the requests made by the citizens or any legal person. A levy can only be imposed to cover the duplication costs and such a decision must be in tandem with the deliberations of the Council of Ministers (Department for Legal Affairs). The first ten pages of the standardized photocopies are free of charge. Ideally, the authorities are not allowed to charge any fee or impose any taxes or levy on the requests made. The requests are absolutely free and costs may only apply for duplication purposes (Department for Legal Affairs).

Article 17 provides the basis for which the Act can be amended. Consequently, it states that an individual can comment on personal information that is in possession of the public authorities (Department for Legal Affairs). A natural or legal person can request to amend the information under this act. Amending any information under this Act must be satisfied to be correct and appropriate by a competent officer. The person seeking to amend any information must sign and the competent officer must notify the requester when the changes have been made (Department for Legal Affairs). This law allows the citizens or those in Bosnia legally to seek information from the public authorities.

Legal Framework

The law establishes the right to access information held by public institutions or authorities. Relevant information must be produced to the public upon a formal request. Access to public information applies to the information held by all the public institutions that include the judiciary, executive, and the legislature as well as other administrative organs (Department for Legal Affairs). The information should be provided regardless of the format be it digital, written documents video or audio. Additionally, all the public institutions such as public schools, universities, and state agencies are obliged to provide the information to the public as appropriate. However, the Freedom of Access to Information Act does not apply to private organizations, commercial entities or private companies (Willson). The law guarantees every person, whether a citizen or otherwise to seek information from the public authorities. The public official has to provide information requested 15 days upon receipt of the formal request (Department for Legal Affairs).

Practical Application of the Law

Access to information in Bosnia has been challenged on multiple fronts. A collective majority of the citizens in Bosnia contend that access to public information is limited. Bosnia’s Press Council and Association of Journalists in the country argue that there are several limitations that hinder access to information (Willson). Nongovernmental organizations have played a critical role in ensuring that access to public information is guaranteed. These NGOs monitor applications, collect the relevant data and oversee appeal procedures (Willson). When it comes to the application of the law, there are numerous inconsistencies, especially interpretation by public institutions (Transparency in the Balkans and Moldova). There are some public organizations that fail the implementation test or refuse to follow the provisions of the law. Transparency International reports that close to 40% of the public institutions in Bosnia provide the required information and that point to the reluctance of some public authorities to provide information to the citizens or legal persons (Transparency in the Balkans and Moldova).