The right to inform the public, a very good law... on paper!

The Right to Information Law was hailed at the time of its adoption as one of the most innovative laws in the field of public transparency, but after almost a decade and hundreds of complaints per year from citizens, civil society and journalists to the Commissioner for the Right to Information about refusal of information by public authorities; a low commitment of this institution to sanction violating institutions, as well as an anemic power of the latter’s decisions, the law requires change. However, the proposed changes to the law do not exactly address the core of the problem… the lack of political will to implement the law.

Author: Nasibe Nur Karik

Every day of 2022, the office of the Commissioner for the Right to Information received an average of five complaints from journalists, representatives of civil society and ordinary citizens.

Complaints have a common denominator: non-disclosure of public information and documents by institutions - a right recognized by the Constitution and Law 119/2014.

Albania has been one of the first countries in the region, which undertook to address the issue of transparency (the so-called sunshine laws), since June 30, 1999, the day when the Parliament approved Law 8503.

15 years later, after a spectacular failure, Parliament saw fit, not to amend, but to make a law from scratch. Law 119/2014, described by experts as one of the best in the world, took into account why the previous law failed.

With this law, the deadline for providing information became 10 days, from 40 that was, a Coordinator for the Right to Information was appointed for each institution, a new institution was established, overseeing this law, the concept of transparency chapters was introduced (institutions are obliged by law to be transparent about almost everything related to their work). The new law provided for significant, financial sanctions for the responsible persons, who prevent the provision of information or official document.

Besa Ombashi, a law professor and one of the people who worked on the approval phase of this law, states that the Law on the Right to Information is actually a good law, but it also requires good implementation.

"We must not forget that the main goal is maximum transparency of state institutions, such as not hiding behind certain laws to avoid giving answers or to delay procedures. Where transparency is violated, no element of the Law on the Right to Information should ever be touched ," she says.

In almost a decade of implementation, the law has seen successes and failures.

Although on paper it is one of the best laws regarding the right of access to information and the obligation of state institutions to meet public requests, the law lags in implementation, with many individuals needing lengthy procedures in national courts , even though there are positive decisions from the Commissioner for the Right to Information.

The good law on paper limps in implementation, due to the lack of will or the open refusal of state institutions to implement the decisions of the Commissioner, being willing to pay fines and spend taxpayers' money in court proceedings, which continue for years, with the sole purpose of not providing what has been assessed as public information.

Dorian Matlija, president of ResPublica , a non-governmental and non-profit organization in the field of protection of fundamental human rights, criticizes the current implementation of the law, noting that "the beginning was good, but in recent years there has been stagnation and even regression in some indicators. Transparency programs are not functional in most cases, while requests for information are responded to in about 60% of cases and beyond the legal deadlines, usually after 20-25 days on average."

This widespread problem has also affected the work of journalists, who use the law on a daily basis.

"Although from a legal perspective it seems like everything is regulated by deadlines, journalists have the right to be informed and to receive documents from institutions via mail, email or even by hand. Personally, for most of the information that I have requested, I have noticed that the institution has avoided providing me with this information," states Anila Hoxha, a career journalist who works at Top Channel.

Artan Rama, a freelance journalist , also says that both the Commissioner for the Right to Information, who is the institutional guarantor of this right, and citizens (journalists as representatives of the public interest), are not using the government's transparency and accountability mechanism sufficiently.

For Rama, the practice of obtaining information has turned out to be "an exhausting and extremely bureaucratic experience".

Lorin Kadiu, Executive Director of Citizens Channel and also a journalist, considers the implementation of the law problematic in several aspects, starting from the information made public without the need for a request for information, its periodic updating, as well as the efficiency of the mechanisms that will have to ensure the implementation of the right to information.

"Requests are logged, but remain unanswered. The answers are incomplete, trade secret or copyright is used, even for documents that are completely administered by public institutions", says Kadiu.

But how efficient is the Right to Information Law?

In the annual report on monitoring the performance of the Right to Information Law and its implementation by public institutions, the Commissioner for the Right to Information notes that there is an increase in proactive transparency (making unsolicited information available) compared to 2020, as far as local government is concerned, a trend that has also been followed by central and subordinate institutions. This trend has been noted by the KPDI in the 2022 report, as well as in ResPublica reports on the right to information in Albania.

Regarding complaints about non-disclosure of information, KPDI administered 1036 complaints in 2021, noting "an ever-increasing trend in the number of complaints from citizens, which means strengthening their trust in the activity and results of the institution's work". but which can also be translated into a lack of transparency of public institutions, which forces citizens to turn to KPDI. Even for the year 2022, the number of complaints about non-provision of information by public authorities was high, in almost the same figures as the previous year, 1081 complaints. It is noted from this report that over 600 filed complaints were precisely from journalists and civil society and the rest from citizens and lawyers.

Even ResPublica's report on the right to information for 2022 notes that this is the year with the highest number of complaints to the KPDI.

"The figures reflect the increase in awareness and knowledge of the law by citizens on the one hand, and also reflect the neglect or refusal to provide information by public authorities, on the other hand, provoking more complaints."

This report notes that institutions do not make information available to the public, judging it as the worst year in the last four years.

"Complete response was given in 54% of cases, partial response in 18% of cases and non-response in 28% of cases".

But, another important element, not only for journalists, but for anyone looking for information, is the deadline, when it is made available, where the average duration for making information available from public institutions has gone to 15 days, from 10 days provided for in the law, and an average time for the administrative response after receiving the complaint from KPDI, of 22 days. Even the decision-making of the KPDI on filed complaints sees a delay in the procedures, where out of 52 decisions made for 2022, the Commissioner made a decision outside the legal deadline in 62% of cases, violating the very principles that the Law on the Right to He gave information as a tag to protect them.

The problem of delaying requests for information is also noted by Mrs. Ombashi, stating that "the administration is not always transparent and what was noticed initially was the tendency not to give a direct answer, but to pass the answer to an institution another".

This tendency is also noticed by Koloreto Cukali, Executive Director of the Albanian Media Council, who says that "there is an ever-increasing procrastination by the institutions to provide the information that they are required to provide by law, while the reaction of the Commissioner's Office is magnificent."

Lorin Kadiu says that deadlines are often extended or even violated. "14 days to get an answer and about 30 days for the appeal, if it has to go through the Commissioner, is a very long time."

He also notes the inability of the Commissioner for the Right to Information to resolve situations, where, for example, there is still no response to Citizens Channel 's requests on the procedures for the demolition of the National Theater (May 2020).

"We have requests with more than 800 days pending", says Kadiu, attributing this delay to the lack of will of the state institutions to implement it.

Even the procedures before the KPDI are often seen as problematic by the journalists themselves, despite the cooperative and proactive spirit of the Commissioner in resolving the complaints submitted to him.

"The Commissioner for the Right to Information tries to avoid conflicts with public authorities, when it comes to providing "sensitive" information, acting at the expense of the right to information. This is a corrupt practice, which often passes in silence", says Artan Rama.

This spirit is also echoed in the position of the director of ResPublica, Dorian Matlija, who emphasizes that after a complaint to the Commissioner, a good part of the answers are provided by the institutions, leaving unanswered those cases when the information touches on “hot” topics, which are usually of interest to investigative journalists. “The law itself does not provide for the obligation of the Commissioner to make a decision in every case and this body makes decisions only in 2%-5% of cases, leaving the vast majority of complaints without a decision,” Matlija continues.

"We managed to get answers in many cases, but not in all cases, especially in those cases, when the information had to do with contracts, concessions, tenders, permits, etc.," he says.

Kadiu from Citizens Channel also highlights the cooperation from KPDI, but emphasizes that "not in every case have we managed to get the information we want, due to incomplete responses and the lack of will from all parties to make complete information available, especially regarding public projects."

But, beyond delays in receiving information or in decision-making by the Commissioner for the Right to Information, another problem, highlighted by media professionals, is the lack of status of the latter's decision as an executive title, which paves the way for institutions to appeal these decisions in court and delay the provision of information for years.

This problem is also noted by Mr. Matlija. “We are currently pursuing over 50 cases on our part at various levels of the judiciary. These are our cases, such as ResPublica , or those pursued by our lawyers in the interest of journalists and activists.”

Problematic institutions, always the same

"They are precisely those that administer the country's natural resources: the Ministry of Infrastructure and Energy and the Ministry of Tourism and Environment", - answered Artan Rama to our question about which institutions he has difficulties in communicating with and receiving public information.

Koloreto Cukali says that, "the most "bunker" institution is the Prime Minister's Office", while Dorian Matlija says that the institutions that are more problematic are the group of institutions dependent on the executive power, i.e. the large dependent directorates.

Cukali further states that, in terms of making information available, independent institutions perform better and there is significant improvement in municipalities. However, this statement does not find place in the experiences of Citizens Channel.

"From our [problematic] experience, it is the Municipality of Tirana, where the majority of requests remain unanswered or receive partial answers, even when they are passed through the Commissioner, continuing further with AZHT, the Prime Minister's Office, ministries, etc. Small municipalities have a positive tendency to respond in time and with seriousness", he says.

Klodiana Kapo, Executive Director of Faktoje , notes that during the pandemic, the institutions that encountered problems were the Ministry of Health, the Ministry of Finance, the Prime Minister's Office, and the Ministry of Foreign Affairs.

Anila Hoxha says that she has noticed the most problems in relations with the Ministry of Defense in relation to "military secret" contracts, but often also with the courts, but the latter because of the heavy workload they have.

Lots of changes, but little substance

In 2022, the government and the Commissioner for the Right to Information presented a broad amendment of a procedural character, as well as fundamental to the provisions of the law. The changes proposed in this draft "aim to improve the existing legislation, based on the problems encountered during the implementation of the law so far, taking into consideration the ongoing suggestions and proposals from civil society and citizens", - quotes the explanatory report of the draft law.

However, during the public consultations, it was noticed that most of the suggestions given by the civil society and the journalists themselves were ignored and rejected. In very few cases, the comments and suggestions of the public found a place and even less in the basic norms regarding the work of civil society and journalists.

"The draft brings valuable improvements, but some key issues, such as compensation mechanisms, making the Commissioner's decision an executive title or the Commissioner's forced decision-making for every complaint are not resolved even in this draft", says Koloreto Cukali

In fact, some of the fundamental changes in the law are mainly related to the reduction of fines for public institutions in case of refusal to provide information, a change that does not affect the foundation of the problem, given the application of the latter by the KPDI, as well as the provision of an executive title from the decision-making of the Commissioner for the Right to Information, but which can be easily appealed and suspended in court. This, according to experts, does not change the status quo.

Lorin Kadiu finds most of the changes to be secondary issues.

"What is missing is that the decisions of the Commissioner should be executive titles and the decision-making by the IDP should be motivated. The data show that during 2021, about 900 complaints were sent, decisions were made only for 4% of them and in total only 2 fines were imposed for not providing information".

"We have lobbied to change other points, which have not yet been taken into account, such as the obligation of the Commissioner to make a decision in every case or the determination of modalities for the compensation of damage caused to journalists by the delay in access to information", says Dorian Matlija.

Many of the civil society proposals have not been accepted, counting over 15 rejected suggestions and only 2 accepted comments and suggestions for fundamental changes in the law.

“The changes [in the law] mostly serve the Office of the Commissioner; they give him more power, but in practice this power has not served the right to information, but its undeserved limitation", says Artan Rama, giving time to see if the law will really be in function of the individual or closing the doors of the institutions.

Currently, the law, as well as the proposed amendments, awaiting final approval in the Parliament, do not address the main problem again... the political will to implement the law and the impotence of independent institutions to compel these actors for transparency.