Different Interpretations of the Same Law
The Personal Data Protection Agency of Bosnia and Herzegovina and non-governmental organizations are interpreting differently draft amendments to the Law on Freedom of Access to Information.
Non-governmental organizations say that amendments to the Freedom of Access to Information Law, under the pretext of personal data protection, will be used to reject information.
By The Center for Investigative Reporting
The president of the Union of Elementary Education in the Canton of Sarajevo Saudin Sivro asked the Canton’s departments what it spends taxpayer money on. He was ignored. “We used the Law on Freedom of Access to Information in Bosnia and Herzegovina (BiH). However, we have big problems, because those in power…mainly do not give information as they should,” said Sivro.
“Some receive a salary 10 days before (everyone else) without any order and we cannot get this information. All those who are in power do not want to point on who’s to blame,” Sivro told the reporters from the Center for Investigative Reporting in Sarajevo (CIN).
FOIA laws at the state and entity levels are supposed to make it possible for citizens to get access to all relevant information, such as records on spending of taxpayer money. However, the access to information is often limited under the pretext that its publishing would endanger individual privacy. Hence, the Personal Data Protection Agency of BiH has been bombarded with requests to provide guidelines on what represents personal data that should be protected.
The agency found out that laws are arbitrarily interpreted. On the one hand, under the pretext of personal data protection, government departments may be protecting some illegalities, while on the other side, under the pretext of transparency, they illegally publish what information they have, including personal records. “Such behavior of public institutions is unacceptable,” wrote officials from the BiH Personal Data Protection Agency in their expose of why they launched a procedure to amend the FOIA law.
The Agency director Petar Kovačević told CIN that one of the most important changes would be defining what personal data is. The draft proposes that government departments cannot limit access to records of given names of civil servants; how public funds are used; how one used her or his public office, or income and assets of officeholders. There should be no test of public interest in these cases, because it has already been defined as such.
“In some ways we wanted to reduce a right to privacy,” said Kovačević.
Officials from the Human Rights Ombudsman Office in BiH said that the proposed amendments are not a good solution and that this would lead to protecting interests of individuals at the expense of the public. Citizens appeal to Ombudsman when their right to information is curtailed. Based on the complaints, the Ombudsmen officials concluded that government institutions treat differently similar requests. Amira Krehić, assistant to the Chief Ombudsmen in BiH, said that even the one and same institution has applied the Law differently in two similar situations. “This is the result of either lack of political will to follow the letter of law or ignorance of this and other laws in BiH,“ said Krehić.
Departments have put in place officers to provide citizens with information. Still, this does not always work. Some officers treat concession contracts, grant contracts, bidding procedures as confidential records. For this reason, the public is in dark about the allocation of taxpayer money.
Limited access to information has already seen in judiciary. At the end of March last year, the Court of BiH changed its internal rulebooks allowing defendants to have anonymity in verdicts. This will mean that verdicts would only show initials of convicted persons, while companies and municipalities will be presented with the the first letter.
“This is outrageous. A war criminal has his first and last name and the victim’s goal is that it should be revealed,” said Bakira Hasečić, the president of the Association Woman – War Victim. “For us is unacceptable that a war criminal is protected, while the identities of numerous victims are revealed during the hearings,” she said. She added that victims of war crimes did not have access to court information.
“We receive a verdict which states M.P, from mother G, and father T, from a town V. What does it mean to us this P.M, G.M? There could be thousands and thousands of people with these initials, hundreds of towns and villages with the same letter,” said Hasečić.
Denis Džidić, deputy editor of Balkan Regional Investigative Network (BIRN) said that there has been no established standard for publishing information from judiciary. For example, he said that the arrest of the Federation of BiH President Živko Budimir was fully opened to public, while in case of the arrest of Konjic war crimes suspects the reporters could not even get the name of the suspects. “It is understandable that Budimir is of public interest, but why war crimes are not of public interest,” said Džidić.
According to the proposed changes to FOIA, verdicts related to war crimes, organized crime, and corruption and similar will be exempted from personal data protection.
Mehmed Halilović, former Federation of BiH Ombudsmen for Media, has analyzed the proposed amendments. He said in his analysis that the provision related to publishing court information could be connected with the end of trial.
Kovačević said that the law cannot define every situation in life, but there has to be made a difference between public interest and personal protection. He said that he read a verdict of one person. The first page featured all of his personal data, including his criminal past that could be abused. “You could get in touch with this person and tell him: ‘Would you do something for me? I’ll give you 100 KM to burn down a neighbor’s car because I cannot stand how good is his car’” said Kovačević.
Non-governmental organizations fear that the amendments to the Law will deny information to public under the pretext of personal data protection. This is why six of them have sent an open letter in which they asked against adoption of the amendments. Instead, they called for an improvement of the Law.
Existing laws are not harmonized when it comes to ways to appeal a rejection letter. The law does not have a clear sanctions against those responsible for rejection a FOIA request.
The officials from the BiH Ministry of Justice did not want to comment on draft amendments to the FOIA Law , saying that they only give opinion on the laws which have been adopted and implemented. The ministry has opened a public debate about the amendments that would last until the end of this month.
Published April 23, 2013