Flash report 2: Bosnia and Herzegovina
Civil society prevented deterioration of rights provided in Freedom of Information Act
In May 2013 several governmental institutions initiated change of the Freedom of Information Act in Bosnia and Herzegovina. However, numerous CSO’s joined forces and managed to prevent these changes that would have severely derogated freedom of information in B&H.
An attempt by the government to amend the law which regulates access to information of public character in Bosnia and Herzegovina by reducing the existing rights of citizens and media prompted a swift and massive response by the civil society and ultimately ended with the amendments’ withdrawal.
The draft amendments to the Freedom of Information Act (FOIA) were published by the Ministry of Justice in May 2013. They were initiated by the Agency for Protection of Personal Data and aimed at introducing changes to the law that would severely limit access to information for citizens and especially for media in Bosnia and Herzegovina. The draft included several modifications of the existing law. The first one was related to protection of private data, limiting access to information in all cases in which the request endangers ‘the right to privacy and other legitimate private interests’. Although some exceptions to this rule were also defined, it basically meant that any kind of information – name, address, information related to property issues, etc. would be considered ‘private’ and therefore could be unavailable to the public.
As a journalist from the Center for Investigative Journalism (CIN) pointed out in an interview, this was just an attempt to hide irregularities at public institutions. “For example, we had a situation where journalists could not gain insight into contracts between public institutions and private companies, under the excuse of protecting the interests of private companies”, explains Renata Radić – Dragić, the CIN journalist. She also recalled a situation when politicians raised concerns about ‘exposure of their private data’ to the public, namely publication of their property charts. In response to such concerns, CIN had to come up with a solution and decided to erase specific information in the property charts instead of the whole charts, more specifically “erasing all private data, such as addresses, signatures, ID numbers. That way, we did not deprive the public of the information”, adds Renata.
By adopting the procedures foreseen by the new draft amendments to the FOIA, the core of the existing law would be drastically changed – provision of information would become an exception and not the rule, as has been the case so far (at least de jure). The new amendments were controversial because they practically discredited the public interest test, i.e. the practice of making decisions on a case-by-case basis. Namely, the new amendments included the principle of automatic responses to requests for public information and denial of access to information in cases that involve endangering the ‘right to privacy and other legitimate private interests’. Finally, if access of information was unjustly denied, judicial remedies were not assured.
The new amendments were particularly problematic when it comes to access to information on judicial processes in cases related to war crimes, organized crime, corruption, terrorism, and other issues of great public relevance. Namely, the proposed formulation could severely limit the publication of information related to names of persons charged for crimes or any other kind of information related to those cases and important for the public.
When reaction prevents catastrophic action
The response of the (united, for the first time) civil society in B&H to the proposed changes was immediate. The Institution of Ombudsman for Human Rights in B&H also extended huge support to the initiative of civil society organizations. The institution had been a member of the working group formed to develop and present the new amendments. Amira Krehić, Assistant Ombudsperson with 13 years of experience in free access to public information, stated that the proposed changes – if adopted – would significantly change the work of all those relying on the Act in their professional work. “The core meaning of the FIA is lost and we are reversing into a period of censorship. It will be especially difficult for journalists, who will be denied their basic work tool. If you do not have information, you cannot distribute it to the public”, Krehić stated.
The Ombudsman informed civil society organizations – primary those active in the field of media, anti-corruption and investigative journalism, about the new initiative. It is also worth pointing out that the time period left for public consultations was extremely short – we had less than one month to create a campaign and stop the institutions’ initiative. The new draft was presented on the official web page of the Ministry of Justice of B&H, together with a form available for citizens’ comments.
Several roundtables, numerous media appearances and a conference organized by Transparency International all focused on the proposed amendments. A team of experts in law and media law developed a set of comments, which significantly eased submission of comments to citizens who might not all be familiar with the legal issues and the risks of the proposed amendments. Partner CSO’s, as well as the Institution of Ombudsman, published the proposed draft, together with the set of comments, on their websites, and most of the ‘anti-draft’ campaign was conducted through online media and social networks, through websites and distribution of comments through their profiles on social networks (Facebook, Twitter), as well as private ones. The intensive campaign lasted until 31st of May, the deadline for comments on the proposed drafts.
Several days before the deadline, the Ministry of Justice of B&H received more then 200 comments. The amendments and proposed changes were rejected, although a new meeting of the FOIA working group will be scheduled soon and the civil society should be prepared to react accordingly if the new draft is similarly controversial.
Implementation of the existing Freedom of Access to Information Act is, nevertheless, far from ideal. This was stated by leading media professionals and experts in the last Irex MSI report for B&H for 2012. Institutions still provide partial information or they do not reply to requests at all, or they provide information selectively to some media outlets and not to others. One of the main problems is that ‘personal data’ can be defined too broadly, thus enabling special protection of information on political leaders and officials and allowing unjustified denial of access to information regardless of the public interest test. Legal sanctions and court practice for denying access to information are still not developed. One of the rare court cases related to FOIA was won by the Center of Investigative Journalism against the Civil Service Agency of B&H, which had denied access to information on salaries of its officials. In just four months, the Center won the case.
“I remember the situation when the FOIA was adopted (in 2000); most politicians were very thrilled by it, commenting that finally journalists won’t call them all the time on the phone”, said Mehmed Halilović, media expert and one of the leading figures in the initiative to preserve the right to access to information. Well, it seems that politicians now understand what the Act means - and how much B&H citizens and the civil sector are eager to defend the Act and their right to information.
Media Integrity
Media Policy and Reforms
