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 that our law is very good, but as often happens in Albania, the law is good on paper, but its implementation in practice leaves much to be desired", Lorin Kadiu, executive director of "Citizens Channel", begins his story about the Law on the Right to Information. The journalists of the center that Kadiu directs send an average of 12 requests every month. But the answers are either delayed or never arrive.
"We have constantly had problems, that is, we have faced all forms of obstacles that the institutions present in front of the Law on the Right to Information. For example, the case of Tirana Municipality. It is very rigorous in terms of the answer that logs the request, gives you the number and thanks you with an extraordinary courtesy, but when it comes to giving an answer I would never say but in most cases we don't have it or we have it with delay", says Kadi. He underlines that there are not rare cases when institutions justify that the response was sent by mail, despite the fact that the request for information specifies that the response is requested electronically.
Closed institutions and silence
On the other hand, for Merxhan Dacin, freelance journalist, one of the most hermetic institutions is the Ministry of Health. "I have tried 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 answers from this institution. He adds that even municipalities are not exempt from this "bunkerization" of information. "They are generally remote municipalities that do not respond or respond late" Daci explains. The tendency of municipalities not to provide information has also been identified in previous writings of ACQJ.
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 available "Faktoje" information, albeit with some deficiencies. The Ministry of the Interior, the Ministry of Culture, the Ministry of Agriculture and the Assembly of Albania". says Viola Keta, editor-in-chief of Faktoje.al, adding that the Presidency and the Ministry of Foreign Affairs, even though there is a court decision to make the information available, have not done so, continuing to violate the court's order, for which it is foreseen administrative measure. Meanwhile, the legal battle continues in the Administrative Court of Appeal. "The Prime Minister, 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 detrimental to 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 units of local self-government have a "Negative Proactive Transparency", 18 units of local self-government have "Insufficient Proactive Transparency, 27 units of local self-government have "minimal Proactive Transparency and 13 units of local self-government have "Functional Proactive Transparency", cited in the report. So, to put it more simply, out of 61 municipalities in the Republic of Albania, only 13 municipalities implement the obligation of transparency in a satisfactory manner. Meanwhile, the Municipality of Rrogozhina can be considered a typical case of non-transparency, as it does not even have an online portal. It is practically impossible to find published information about the transparency that is legally required to do so.
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 respect of requests and the right to information, the Ministry of State for Reconstruction has addressed all questions that are directly related to the Ministry's area of responsibility, as the authority responsible for coordinating and monitoring the process, coordinating donors, negotiating and signing agreements grant, the authorization of the use of funds by the implementing units, as well as the follow-up of 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 emphasized that a significant part of the requests for information are related to the implementation of projects, which, as provided in the Normative Act that regulates the Reconstruction process, is the responsibility of the technical units. Also, this ministry says that it has addressed the interested journalists near the responsible units implementing the projects.
Dorjan Matlija, head of the "Res Publica Center", and one of the lawyers who has followed many cases regarding the Right to Information in the courts, says that initially, with the introduction of the new law on the "Right to Information" there was a positive . "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 in the country". he expresses, saying that the speed of the return of the answer, the completion of the transparency program remained at the figures of 25% in the main institutions. "Then, since 2018, a kind of regression of law enforcement has begun. Transparency programs do not have updated information, those who never had, continue not to 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 that are imposed are at such a low level that it does not reflect the real situation of the Right to Information in Albania. If we see 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 time. Meanwhile, practice shows that this is totally untrue and we have an institution that I would consider to some extent powerless or with a lack of will, I don't know what the reason is for ensuring the provision of public information". says Lorin Kadiu.
"The commissioner should give up the idea of being an institution simply to be and to be 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 the institutions, since the object of their work is the 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 satisfied with the presentation of positive figures that he presents to the Assembly, while the Assembly does not take into account alternative reports on this matter and the situation remains the same. From the side of the facade everything looks good, from the inside everything is rotten". adds Matlija. During the last years, according to Matli, the Commissioner's decision-making is 2 to 5% of the complaints and many of the complaints were rejected by e-mails that are not from the Commissioner, but from other officials of the office. "This method makes it difficult to argue this matter in court", says the lawyer, pointing out that these are not reported as cases of dismissal, nor the cases where the Commissioner sends a letter to the institutions reminding them of the legal obligation and leaves it at that and does not apply it further, considering them as resolved cases.
Matlija also provides an example: "In 2019, we received several journalists who are typical, who make many requests for information, and we saw that at least 40-50 cases were not resolved at all and did not appear in the annual information presented by the Commissioner".
Necessary interventions in the law are needed for the lawyer.Even the Commissioner himself has accepted that the Commissioner's decision should be an executive title in order to be implemented directly so that you are not forced to go to another trial 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 was not punitive, but educational and preventive. The biggest problem that deserves to be emphasized currently does not lie in the part of the execution of the administrative sanction, but in the execution of the ordering part of the decision for the execution of non-financial obligations (related to the required documentation). This aspect has turned out to be problematic in practice, and for this reason, the Commissioner's Office will propose that this point be included in the legal changes of the LDI."
Meanwhile, Dorian Matlija says 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, since there have been cases in court where the coordinators show that they have do their job well. "Sanctions are the last thing, that the law should offer as a solution, there should be other ways to solve it earlier", he says, stressing that the manner in which the Commissioner is elected, which for him, has a short mandate, remains problematic.
"It could be a longer term, it could be more independent from 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, also mentioning some ways that, according to him, would guarantee a greater independence of this institution, such as the proposal of the Commissioner by the opposition and approval by the majority, his proposal by the academy, by civil society, or to propose several candidacies and to choose one of them.
The budget is not transparent either
Transparency is a problem not only in local government, but also in central government institutions. It is as surprising as it is absurd, since 36 institutions, referred reports published in January 2021 by the Commissioner for the Right to Information and Protection of Personal Data, only 8 institutions have published their budget online. Among the institutions whose budgets cannot be found online are: the Prime Minister's Office, the Ministry for Europe and Foreign Affairs, the Ministry of Defense, the Ministry of the Interior, the Ministry of Infrastructure and Energy, the Ministry of Health and Social Protection as well as the Ministry of Tourism and the 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 not to give you information, they have all the tools at hand", says lawyer Dorian Matlija, regarding this matter. He also adds that during these three years what the institutions have become more sophisticated is the trick of not providing information. "Sometimes they impose unreasonable fees, sometimes they present the justification of personal data, then there are these transfers of requests from one institution to another that they do in a systematic way, add the fact that the decision of the Commissioner is not enforceable even when it is a positive decision of the Commissioner in rare cases, they do not implement or take the decision to court and then it goes to court for years."
Viola Keta also shows some of the "tricks" most often encountered in the work of "Faktoje". "The information is incorrect. Links are brought up that have none of the data you asked for, the answers brought up deviate from the issue they were asked about."
But the confrontation in court to secure the information is something that neither citizens nor journalists prefer not to happen. During this year, according to lawyer Dorian Matlija, 22 cases regarding the right to information by journalists have been sent to court by the "Res Publika Center". "Most of the cases have been won, and we have even had a great resistance from the Commissioner in these cases, who did not make a decision but when he came to court he had an opposing attitude". he says. Meanwhile, the office of the Commissioner for the Right to Information and Protection of Personal Data, officially told the ACQJ that the duration of the 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 deadline can be exceeded". While these processes also have an economic cost for the institution, at the same time and an economic, practical cost 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 ECtHR 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 the news has value when it is published then when it should 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.
