The right to public information, an excellent law… on paper!

The Law on the Right to Information was hailed at the time of its approval as one of the most innovative laws in the field of public transparency. However, after almost a decade and hundreds of citizen complaints, civil society organizations, and journalists to the Commissioner for the Right to Information regarding the refusal of information by public authorities, there has been a low commitment from this institution to sanction violating institutions, as well as weak enforcement power of its decisions. The law is in need of change. However, the proposed amendments do not address the core issue… the lack of political will to implement the law.

Author: Nasibe Nur Karik

Every day in 2022, on average, five complaints were received at the Office of the Commissioner for the Right to Information from journalists, civil society representatives, and ordinary citizens. The complaints shared a common denominator: the denial of access to information and public documents by institutions—a right recognized by the constitution and the Law 119/2014.

Albania was one of the first countries in the region to tackle the issue of transparency, with the adoption of the so-called “sunshine laws” on June 30, 1999 when the Parliament passed Law 8503. However, 15 years later, after a spectacular failure, the Parliament realized that amendment was not enough and decided to start from scratch. The Law 119/2014, considered by experts as one of the best in the world, took into account the reasons for the failure of the previous law.

With this law, the deadline for providing information was reduced from 40 to 10 days. Each institution was required to appoint a coordinator for the right to information, and a new supervisory institution was established for this law. The concept of transparency chapters was introduced, mandating institutions to provide transparency in almost everything related to their work. The new law also stipulated substantial financial sanctions for responsible individuals who obstructed the release of information or official documents.

Besa Ombashi, a law professor who was involved in the approval phase of this law, believes that the Law on the Right to Information is indeed a good law but requires proper implementation. She states, “We must not forget that the main goal is maximum transparency of state institutions, avoiding hidden agendas behind certain laws to evade or delay procedures. Where transparency is compromised, no element of the right to information law should be compromised.”

In nearly a decade of implementation, the law has seen both successes and failures. Despite being one of the best laws on access to information and the obligation of state institutions to fulfill public requests, on paper, the law falters in practice. Many people resort to lengthy court procedures, despite positive decisions from the Commissioner for the Right to Information.

The law falters in practice due to a lack of will or open refusal from state institutions to enforce the Commissioner’s decisions, even being willing to pay fines and spend taxpayers’ money on prolonged legal processes with the sole purpose of not providing what has been deemed public information.

Dorjan Matlija, the Executive Director of Res Publica, a non-governmental and nonprofit organization focused on the protection of fundamental human rights, criticizes the current implementation of the law, highlighting that “the beginning was good, but in recent years, there has been a stagnation and even regression in some indicators. Transparency programs are often non-functional, while information requests receive responses in around 60% of cases, usually beyond the legal deadlines, typically after an average of 20-25 days.”

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

“Although it seems that everything is legally regulated in terms of deadlines, journalists have the right to be informed and to obtain documents from institutions through mail, email, or even in person. For most of the information I have requested, I have noticed that the institutions have evaded providing me with this information,” declares Anila Hoxha, a career journalist working for Top-Channel.

Artan Rama, a freelance journalist, states that both the Commissioner for the Right to Information, who is the institutional guarantor of this right, and the citizens (journalists as representatives of public interest) are not fully utilizing the transparency and accountability mechanisms of the government. According to Rama, the practice of obtaining information has resulted in a “tedious and highly bureaucratic experience.”

Lorin Kadiu, Executive Director of Citizens Channel and also a journalist, assesses the implementation of the law with problems in several aspects, starting from the unnecessary requirement of submitting information requests for publicly available information, the periodic updating of such information, as well as the efficiency of the mechanisms that should ensure the right to information is upheld.

“Requests are logged but remain unanswered. The responses are incomplete, and trade secrets or copyright claims are used even for documents entirely managed by public institutions,” says Kadiu.

How effective is the Law on the Right to Information?

In the annual report on the monitoring of the performance of the Law on the Right to Information and its implementation by public institutions, the Commissioner for the Right to Information (CRI) observes an increase in proactive transparency (making requested information available) compared to 2020, regarding both local and central government authorities. This trend has also been noted by CRI in their 2022 report, as well as in the reports by Res Publica on the right to information in Albania.

Regarding complaints about non-disclosure of information, CRI administered 1,036 complaints in 2021, noting “a consistently increasing trend in the number of complaints from citizens, indicating their growing confidence in the activities and results of the institution.” However, this can also be interpreted as a lack of transparency by public institutions, which compels citizens to turn to CRI. Even in 2022, the number of complaints regarding non-disclosure of information by public authorities remained high, with almost the same figures as the previous year, totaling 1,081 complaints. It is worth noting from this report that over 600 filed complaints were specifically from journalists and civil society, with the remaining portion coming from citizens and lawyers.

The Res Publica report on the right to information for the year 2022 also highlights that it is the year with the highest number of complaints submitted to CRI.

“The figures reflect the increased awareness and knowledge of the law by citizens on one hand, and it also reflects the negligence or refusal of public authorities to provide information on the other, thereby provoking more complaints.”

This report highlights that institutions are not making information available to the public, considering it the worst situation in the past four years. “A complete response was given in 54% of cases, a partial response in 18% of cases, and no response in 28% of cases.”

However, another important aspect, not only for journalists but for anyone seeking information, is the timeframe within which it is made available. The average time for public institutions to provide information has increased to 15 days, compared to the 10 days stipulated by the law.

Additionally, the average administrative response time after receiving a complaint from CRI is 22 days. Even CRI’s decision-making on filed complaints shows a delay in procedures. Out of 52 decisions made in 2022, the Commissioner made decisions outside the legal timeframe in 62% of cases, thereby violating the principles that the law on the right to information aims to protect.

The issue of delayed information requests is also observed by Mrs. Ombashi, who expresses that “the administration is not always transparent, and what was initially noticed was the tendency not to provide direct answers but to transfer the response to another institution.”

This tendency is also noticed by Koloreto Cukali, Executive Director of the Albanian Media Council, who says, “There is an increasing delay and obstruction by institutions in providing the information they are legally obliged to disclose, while the response from the commissioner’s office is sluggish.”

Lorin Kadiu says that deadlines are often excessive or even violated. “14 days to receive a response, and around 30 days for an appeal if it needs to go through the commissioner, are a very long time.”

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

“We have requests pending for over 800 days,” says Kadiu, attributing this delay to the lack of willingness on the part of state institutions to implement it.

Even the procedures before the Commission for the Right to Information are often seen as problematic by journalists themselves, despite the collaborative 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 against the right to information. This is a corrupt practice that often goes unnoticed,” says Artan Rama.

This sentiment is echoed by Dorjan Matlia, Director of Res Publica, who emphasizes that after filing a complaint with the Commissioner, a good portion of the responses are provided by the institutions. However, there are cases where there is no response when the information touches on “sensitive” topics, which usually interest investigative journalists. He further adds, “The law itself does not impose an obligation on the Commissioner to make a decision in every case, and this body only makes decisions in 2% – 5% of the cases, leaving the vast majority of complaints without resolution.”

“We have received responses in many cases, but not in all cases, especially when the information involves contracts, concessions, tenders, permits, etc.,” he says.

Mr. Kadiu from Citizens Channel also highlights the cooperation from the Commission for the Right to Information but emphasizes, “In not every case have we been able to obtain the desired information, due to incomplete responses and a lack of willingness from all parties to provide complete information, especially regarding public projects.”

However, beyond the delays in receiving information or decision-making by the Commissioner for the Right to Information, another problem emphasized by media professionals is the lack of executive status for the Commissioner’s decisions. This lack of executive status allows institutions to challenge these decisions in court and delay the provision of information for years on end.

This problem is also observed by Mr. Matlia. “Currently, we are pursuing over 50 cases at various levels of the judiciary. These are our cases, such as Res Publica, or cases followed by our lawyers for the interests of journalists and activists.”

Problematic institutions, always the same ones

“It is precisely those that manage the country’s natural resources: the Ministry of Infrastructure and Energy, and the Ministry of Tourism and Environment,” responds Artan Rama when asked which institutions pose difficulties in communication and obtaining public information.

Koloreto Cukali says, “The most ‘bunker-like’ institution is the Prime Minister’s Office,” while Dorjan Matlia states that the most problematic institutions are the group of executive power dependency institutions, specifically the large directorates of dependency.

Cukali further expresses that in terms of providing information, independent institutions and municipalities show better performance and there is a noticeable improvement. However, this assertion does not align with the experiences of Citizens Channel. “Based on our [problematic] experience, the Municipality of Tirana is problematic, where the majority of requests are left unanswered or receive partial responses even when they are escalated to the Commissioner,” he continues with the High State Audit, the Prime Minister’s Office, the Ministries, and so on. “Small municipalities tend to respond in a timely manner and with seriousness,” he adds.

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

Anila Hoxha mentions that the most significant problems have been observed in their dealings with the Ministry of Defense regarding “military secret” contracts, but also often with the courts, albeit due to their significant workload.

Numerous changes, but with little substance.

In 2022, the Government and the Commissioner for the Right to Information presented a comprehensive amendment to the law, both procedural and fundamental provisions. The proposed changes in this draft “aim to improve the existing legislation, based on the issues encountered during the current implementation of the law, taking into account the continuous suggestions and proposals received from civil society and citizens,” as stated in the explanatory statement of the draft law.

However, during the public consultations, there was a disregard and dismissal of the majority of suggestions given by civil society and journalists themselves. In very few cases, public comments and suggestions found their place, and even fewer in the fundamental provisions regarding the work of civil society and journalists.

Koloreto Cukali expresses that the draft brings valid improvements. However, key issues such as compensation mechanisms, granting executive status to the Commissioner for the Right to Information, and mandatory decision-making by the Commissioner for every complaint, are not addressed in this draft. According to experts, these changes mainly focus on reducing fines for public institutions in case of refusal to provide information, a change that does not address the fundamental issues given the current application of these fines by the Commissioner for the Right to Information. The provision of an executive title by the Commissioner’s decision can easily be appealed and suspended in court, which, according to experts, does not change the status quo.

Lorin Kadiu sees most of the changes as secondary issues. He points out that the Commissioner’s decisions should have executive titles and the decision-making by the Commissioner for the Right to Information should be motivated. Data shows that around 900 complaints were filed in 2021, decisions were made only for 4% of them, and a total of only 2 fines were imposed for non-disclosure of information.

We have advocated for changes in other points that have not been considered yet, such as the Commissioner’s obligation to make a decision in every case, or the determination of modalities for compensating journalists for delays in accessing information,” says Dorjan Matlija.

Many proposals from civil society have been rejected, with over 15 suggestions rejected and only 2 comments and suggestions accepted for fundamental changes in the law.

“The changes [in the law] serve mostly the Commissioner’s Office, giving it more power. But in practice, this power has not served the right to information, but rather its unrestricted limitation,” says Artan Rama, giving time to see if the law will truly serve the individual or further restrict access to institutions.

Currently, the law and the proposed changes, pending final approval in Parliament, do not address the main problem: the political will to enforce the law and the powerlessness of independent institutions to compel these actors to ensure transparency.

This article is part of the project Investigative Journalism Lab that is financially supported by the Public Relations Office of the US Embassy in Tirana. The opinions, findings, conclusions, and recommendations expressed are those of the author(s) and do not necessarily represent those of the Department of State
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