Author: Denis Tahiri
For a journalist to provide information based on the legal package that guarantees him access, he will need weeks of waiting, but even months. And when the answer never arrives in his e-mail or by mail, then even the complaint path to the Commissioner for the Right to Information is not always decisive. Journalists in particular collide more and more in courts, for information that loses its importance at the end of the trial. The annual data of this institution show a contradictory reality, thousands of complaints have flooded these offices, but the penalties imposed in fines are negligible.
“I think our law is very good, but as is often the case in Albania, the law is good on paper, but its implementation in practice leaves much to be desired ,” begins Lorin Kadiu, executive director of Citizens Channel, in his account of the Right to Information Law. Journalists at the center that Kadiu runs send an average of 12 requests each month. But the responses are either delayed or never arrive.
"We have constantly had problems, so we have faced all forms of obstacles that institutions have raised in the face of the Law on the Right to Information. For example, the case of the Municipality of Tirana. It is very rigorous in terms of the response that records the request, gives you the number and thanks you with extraordinary courtesy, but when it comes to providing an answer, I would never say never, but in most cases we do not have it or we have it late," says Kadiu. He underlines that it is not rare for institutions to justify that the answer was sent by mail, despite the fact that the request for information specifies that the answer is requested electronically.
Closed institutions and silence
On the other hand, for Merxhan Daci, a freelance journalist, one of the institutions that is most hermetic is the Ministry of Health. “ I have experienced this in a period of crisis where it should have been the opposite, where the public had more public information ,” says Daci, who adds that, in cases where he has sent requests for information, he has generally not received responses from this institution. He adds that municipalities are no exception to this “bunkerization” of information. “ These are generally remote municipalities that do not respond or respond late,” explains Daci. The tendency of municipalities not to provide information has also been identified in previous ACQJ articles.
Meanwhile, for "Faktoje", which is the only "Fact checking" organization in Albania and as part of its work sends more than 500 requests for information per year, the most problematic institutions for returning the answer are: Ministry of Reconstruction, Ministry of Health and Minister of Infrastructure and Energy. This organization also requested the availability of information through the court. When other steps have failed, it has opened a process against 11 institutions that refused to make the information available. In this battle, the Administrative Court gave the right to "Faktoje" in 8 cases, and yet not all these institutions obeyed the court decisions.
" Four institutions responded to the court's decision by making the information available to "Faktoje" although with some shortcomings. The Ministry of Interior, the Ministry of Culture, the Ministry of Agriculture and the Parliament of Albania", says Viola Keta, editor-in-chief of Faktoje.al, adding that the Presidency and the Ministry of Foreign Affairs, although there is a court decision to make the information available, have not done so and continue to violate the court's order, for which administrative measures are foreseen. Meanwhile, the legal battle continues in the Administrative Court of Appeal. "The Prime Minister's Office, the Ministry of Health and the Ministry of Infrastructure are the 3 institutions with which the process continues in the Administrative Appeal, a process that takes up to several years and is to the detriment of transparency " , says Viola Keta.
A December 2020 report, compiled by the office of the Commissioner for the Right to Information and Protection of Personal Data, describes that transparency is functional only in 13 local self-government units.
“ 3 local self-government units have a “Negative Proactive Transparency”, 18 local self-government units have “Insufficient Proactive Transparency”, 27 local self-government units have “Minimal Proactive Transparency” and 13 local self-government units have “Functional Proactive Transparency”, the report states. So, to put it simply, out of 61 municipalities in the Republic of Albania, only 13 municipalities implement the obligation of transparency to a satisfactory extent. Meanwhile, the Municipality of Rrogozhina can be considered a specific case of non-transparency, since it does not even have an online portal. It is practically impossible to find published information regarding the transparency that it is legally obliged to do.
All the institutions that have been described by journalists as problematic in the practice of obtaining information through the request for information, have been contacted by ACQJ for a reaction on this issue, but the only institution that had a reaction was the Ministry of Reconstruction. The press office of this ministry said that there is a frequent interest of the media on the progress of the process and the implementation of the Reconstruction programs.
" In compliance with the requests and the right to information, the State Ministry for Reconstruction has addressed all questions directly related to the Ministry's area of responsibility, such as the authority responsible for coordinating and monitoring the process, coordinating donors, negotiating and signing grant agreements, authorizing the use of funds by implementing units, as well as monitoring the works in accordance with the deadlines and criteria planned in the reconstruction program, etc.," says this ministry in its response, adding that it should be noted that a significant part of the requests for information are related to the implementation of projects, which, as provided for in the Normative Act regulating the Reconstruction process, is the responsibility of the technical units. This ministry also says that it has addressed interested journalists to the responsible units implementing the projects.
Dorjan Matlija, director of the "Res Publica Center", and one of the lawyers who has pursued many cases on the Right to Information in the courts, states that initially, with the introduction of the new law on the "Right to Information" there was a positivity. " At least starting from the idea that the new law has better standards than the old law. But the implementation of the law with a positive note can be described as the first two years, then there was a stagnation", he states, saying that the speed of response, the completion of the transparency program remained at 25% in the main institutions. " Then, since 2018, a kind of regression in the implementation of the law has begun. Transparency programs do not have updated information, those that have never had it, continue to not have it", he concludes.
Urgent need for legal changes!
Since 2014, in the office of the Commissioner for the Right to Information and Protection of Personal Data, until August 31, 2021, 4469 complaints have been filed for not receiving information based on the provisions of the law "On the Right to Information". Of these, 3571 complaints were accepted, while another 908 were rejected. But when you make the balance of how many administrative measures the Commissioner has decided for not providing information, they are very few. In total, 26 fines have been imposed, of which only 5 have been executed, while four have been prescribed, while 4 are in the process of being executed. On the other hand, 12 fines were overturned by the court.
But journalists see it as an insufficient thing and say that the practice with requests for the Right to Information is quite different from what is written in the official reports.
" From our experience but also from conversations with colleagues with whom we cooperate, the Commissioner has a power that he is not using. The level of fines imposed is at such a low level that it does not reflect the real situation of the Right to Information in Albania. If we look at the Commissioner's annual report, we would think that Albania is a very advanced country in terms of the Right to Information, where all institutions respond and respond in a timely manner. Meanwhile, practice shows that this is totally untrue and we have an institution that I would consider to be somewhat powerless or with a lack of will, I don't know what the reason is, to ensure the provision of public information", says Lorin Kadiu.
" The Commissioner should give up the idea of being an institution simply for the sake of being and being politically correct with both journalists and institutions, because in this way it simply shows that he is not doing his job properly ," says Merxhan Daci, who adds that the Commissioner should be more vigilant towards institutions, since the object of their work is institutions and the implementation of transparency.
Even the executive director of "Res Publica" is critical of the role that the Commissioner has in law and in practice, but also of the legal framework and the way of electing the Commissioner.
“ The Commissioner has a big problem that he is content with presenting positive figures to the Assembly, while the Assembly does not take into account alternative reports on this matter and the situation remains in the same place. From the facade everything looks good, from the inside everything is rotten”, adds Matlija. In recent years, according to Matlija, the Commissioner's decision-making is 2 to 5% of complaints and many of the complaints have been dismissed with emails that are not from the Commissioner, but from other officials in the office. “ This method also makes it difficult to argue this matter in court” , says the lawyer, noting that these are not reported as cases of dismissal, nor are cases where the Commissioner sends a letter to the institutions reminding them of the legal obligation and leaves it at that and does not implement it further, considering them as resolved cases.
Matlija also brings an example: "In 2019, we received some journalists who are typical, who make many requests for information and we saw that at least 40-50 cases were completely unresolved and did not appear in the annual information presented by the Commissioner."
For the lawyer, necessary interventions in the law are needed. " Even the Commissioner himself has accepted that the Commissioner's decision should be an executive title so that it is directly implemented so that you are not forced to go to trial again after the decision," he says.
Asked about this issue, the Commissioner's Office stated that it has taken an initiative to propose changes:
" As is already known, the approach of the Commissioner's Office has not been punitive, but rather educational and preventive. The biggest issue that deserves emphasis at present is not the execution of the administrative sanction, but the execution of the ordering part of the decision for the execution of non-financial obligations (related to the requested documentation). This aspect has proven problematic in practice and for this reason, the Commissioner's Office will propose that this point be included in the legal amendments to the LDI."
Meanwhile, Dorian Matlija states that other changes are also necessary, including the sanctions that are foreseen, which should affect the responsible persons and not only the coordinators for the Right to Information, as there has been no shortage of cases in court where the coordinators show that they have done their job well. " Sanctions are the last thing that the law should offer as a solution, there should be other ways to solve them earlier," he says, emphasizing that the way in which the Commissioner is elected, who for him has a short mandate, also remains problematic.
" It could be a longer mandate, it could be more independent of the political will of the moment, and the law does not have an opportunity to filter where the proposal comes from, it is simply appointed by the majority," he says, mentioning several ways that, according to him, would guarantee greater independence of this institution, such as the proposal of the Commissioner by the opposition and approval by the majority, his proposal by academia, by civil society, or proposing several candidacies and selecting one of them.
The budget is not transparent either
The problem of transparency is not only in local government but also in central government institutions. It is both surprising and absurd that out of 36 institutions, according to the report published in January 2021 by the Commissioner for the Right to Information and Personal Data Protection, only 8 institutions have published their budget online. Among the institutions whose budgets are not available online are: the Prime Minister's Office, the Ministry for Europe and Foreign Affairs, the Ministry of Defense, the Ministry of Interior, the Ministry of Infrastructure and Energy, the Ministry of Health and Social Protection, and the Ministry of Tourism and Environment.
Although the law obliges these institutions to have the register of Requests and Responses updated for 2020, only 19 of the 36 central authorities and those under them have. Meanwhile, 6 of them have not even made public who the Coordinator for the Right to Information is. While the number of authorities that have installed the electronic register of responses is 14 out of 36.
And when information that should be public is not, the only way to get it is through a request for information, but over the last 3 years getting this type of information has become much more difficult.
" Practically, if they want to withhold information, they have all the means at their disposal," says lawyer Dorian Matlija, regarding this issue. He also adds that during these three years, what the institutions have most sophisticated is the trick for withholding information. " Somewhere they set unreasonable fees, somewhere they present justifications for personal data, then there are these forwardings of requests from one institution to another that they do systematically, add to this the fact that the Commissioner's decision is not enforceable even when it is a positive decision of the Commissioner in rare cases, they do not implement it or take the decision to court and then it goes to court for years."
Viola Keta also reveals some of the "tricks" most frequently encountered in the work of "Faktoje". "The information is inaccurate. Links are provided that have no data for which you have requested, the answers provided deviate from the issue for which they were asked."
But facing the court to obtain information is something that neither citizens nor journalists prefer to happen. During this year, from the “Res Publika Center” according to lawyer Dorian Matlija, 22 cases have been sent to court for the right to information by journalists. “ Most of the cases have been won, and we have even had great resistance from the Commissioner in these cases, who did not make a decision but when he came to court he had an opposing position”, he says. Meanwhile, the office of the Commissioner for the Right to Information and Personal Data Protection, officially told the ACQJ that the duration of trials in the “Administrative Court of First Instance where the plaintiff is the person sanctioned by the Commissioner’s Office, varies from 2-6 months. In special cases, this time limit may be exceeded”. These processes have both economic costs for the institution, and at the same time economic and practical costs for the media, as long as the news for which this information is requested is a consumer product that loses value over time, as has been found by the ECHR itself in many of its decisions regarding the right to information.
Meanwhile, Kadiu says that, in journalism, if you don't get the information at the right time, it's the same as if they denied that information.
"One of the main principles of journalism is that news has value when it is published when it needs to be published, as we do not need to spend weeks and months to get information, especially in the nature of the media today ," he emphasizes.
Officially asked if there is data on an average time for receiving an answer under the Law on the Right to Information, the Commissioner's Office stated that it does not have such data because the collection of data is not provided for in the framework regulator. But from the data of the ACQJ's work for about 1 year, it turns out that on average 20-25 days are needed to receive a response to a request for information, but there are also cases where the wait is 2 or more months.
