Law on Freedom of Information in B&H Drafted

Revolutionary Document for Making Work of Authorities Public

AIM Sarajevo, July 5, 2000

Pursuant the Draft Law on Freedom of Information in B&H put in parliamentary procedure by deputies of state assembly Sejfudin Tokic and Ivo Lozancic, every individual, citizen of B&H or not, every enterprise, organisation or any other "legal subject" is entitled to ask for and get information from literally all public agencies, government or administration bureaus, institutions and courts, in other words – the regime. In case this Draft Law is passed, but especially implemented, revolutionary changes would happen in this country in which ethnic oligarchies have for years been concealing all relevant information about their work and responsibility for the hopelessness we are living in, and this would put B&H among countries with the most transparent operation of the government. According to this Draft, an information - for acquiring of which you are not obliged to even state what you need it for - is almost everything: printed or written documents, written notes, correspondence, minutes from meetings, audio films, photographs, computer data. "Any form in which information can be found or in which it can be stored", it is stated in OSCE interpretation of the Draft which was prepared by this organisation's group of legal experts. In other words, all already existing information regardless of the time when they were created, even those marked as "classified" on condition they do not belong in the group of "exceptions" exemption of which from the rule must be clearly and specifically explained!

Every public agency, according to this document, is bound to nominate an employee whose duty would be to receive demands for information and give instructions how demands for information should be submitted, how and who the applicant should appeal to, and to make these instructions, which must be distributed free of charge, accessible to citizens. It is the obligation of every public agency to make an index, a register of all documents it possesses and to make it public. If a public agency does not have the required information, its duty is to forward the demand to the agency which possesses it, and if such an agency does not exist - within a determined time limit (eight days) it is bound to inform the applicant about "the process of processing the demand".

The initiative for creating such a law was launched a couple of years ago by the Alternative Ministerial Council of B&H (Shadow Cabinet) and its president Sejfudin Tokic, but a note was received from OSCE that its group of experts was already gathering to work on this law, and then former High Representative Carlos Westendorp issued a recommendation that the law be completed by the end of 1999.

After its recent completion and forwarding it to the parliamentary procedure, two questions are predominant in the expectations of the citizens and journalists in B&H when the Law on Freedom of Information is concerned - whether this Law will enable insight into police dossiers of citizens if they exist, and whether public workers and politicians will finally be obliged to give information or interviews to all media or will they continue to make a selection according to their personal affinity for some media. Citizens will partly profit (accessibility of a dossier depends on what period it refers to and who demands to see it, that is, whether investigation has been completed and whether the citizen himself is involved in crime or connected with someone who is), while journalists do not seem to have understood the purpose of the law properly and their own connections with it.

Indeed, the Law on Freedom of Information is practically not intended for the media at all - they mostly do not have the time to wait for the time limit of 15 days for the answer prescribed by Law. Its fundamental purpose is to offer citizens the possibility to get as many information as possible and to make the work of public agencies as transparent as possible, all in order to increase responsibility of the administration to the citizens on whose money it lives and whose money it disposes of, and to reduce the possibility of hushing up relevant information, their abuse and manipulation.

The only information that are considered to be exceptions that cannot be given are the ones whose publication could cause "significant damage" to "legitimate causes" of foreign policy, defence and security, public security, monetary policy, prevention of crime and protection of the process of decision-making, but also commercially sensitive information on a private company or a "third party", that is, business secrets. But marking an information as an "exception" still does not mean that the person who demands it will not have it. The agency which possesses the information shall conduct "investigation of public interest" and if it establishes that public interest is greater than possible damage - the information shall be made public! In this case public interest is "the benefit which will exceed the damage caused by publication of the information". For example, if the information concerns a business secret of a company it will be made public if it is established that business operation of this enterprise caused general risk for the health of the citizens or similar. In any case there is no sector or field in which all information are exceptions, for example, the field of defence of the country. Every information must individually be checked in order to establish whether it belongs in the category of exceptions. Even if a part of an information proves to be an exception, the rest of the information shall be given, if exempting certain data from the information does not make it unintelligible - it is stated in the Draft Law on Freedom of Information. At the same time, at one moment a certain information might be and exception and after some time it may be just a historical document or a similar paper which can be given to the citizens.

Whether an information is an exception or not is determined by the public agency which possesses the required information. If it is established that it is an exception, the agency shall inform the person who required the information about it and explain in detail what it founded its stand on about the required information being an exception, but also clearly state the possibility of appeal against such a decision, first of an internal appeal to the agency itself, then the appeal to the court which is in charge, then the appeal to ombudsman for information either of the entity or the state. Ombudsman for information on the level of the state will operate as part of the Office of Ombudsmen of B&H and in entities as part of entity services of ombudsman. According to the draft law, after acquiring an insight into all documents and after his/her own assessment, ombudsman has the possibility to issue a recommendation to approve of making the required information accessible. If the public agency possesses the demanded information, it will give it in one of the official languages in B&H, without obligation to translate it from one into another. Information are given free of charge, that is, in such a way that the applicant pays only additional expenses like copying information, but only if copying exceeds the first ten pages of the usual size which are copied free of charge.

It is important to mention that institutions of international community in B&H will not be subject to this law because they answer for their work to governments of the countries which finance them, which does not mean that these institutions will not obey the laws of B&H, as explained by High Representative in B&H Wolfang Petricsh on the occasion of promotion of the Draft Law.

Proposers of the Draft Law in the state parliament are Sejfudin Tokic (deputy of the Social Democratic Party of B&H and president of AMV B&H) and Ivo Lozancic (New Croat Initiative), and it will be presented to entity parliaments by respective ministers of justice or prime ministers. After first reading of the text of the Law, reactions of the public are divided – ranging from enthusiasm such as “Terrific Law which will bring revolution in the sphere of legislature and accessibility of information!” to scepticism that it is “just another law which can be interpreted as one pleases!”

The law should soon be put on the agenda of B&H Parliament, and the Office of High Representative and OSCE expect it to be passed (or rejected) by October this year, that is, before November parliamentary elections. In case it is rejected, High Representative is authorised to impose it, but since parliamentary elections are approaching, it is highly probable that the parliaments will pass it in order to show cooperativeness to international community, to show good will to the voters and in order to “set a trap” for the future authorities if a change of the regime actually occurs in this country.

Rubina CENGIC

(AIM Sarajevo)