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Critics of a proposed new freedom of information law say it will hobble journalists and give public bodies too many opt-outs.by Mihaela Sljukic Bandovic 28 December 2018
Serbia’s small but dedicated corps of investigative journalists is bracing for what could be a body blow to their ability to gather vital information from public bodies and state-owned companies.
The government’s release of a draft freedom of information (FOI) law in March 2018 followed years of calls to bring existing legislation up to date. The bill instead aroused fierce criticism from journalists and civil activists, who said that, rather that contributing to greater transparency, the bill could enable official bodies to evade complying with FOI requests indefinitely.
Journalists worry that if the draft law proposed by the Ministry of Public Administration and Local Self Government is passed as it stands, large chunks of information about public procurement, the finances of public companies and local and state authorities, public investment, and civil servants’ assets could be kept secret.
One of the most contentious provisions – giving companies using public funds the option not to honor requests for information – is a “deliberately created loophole” to prevent crucial information about major public companies from coming out, said Branko Cecen, director of the Center for Investigative Journalism (CINS).
Public Administration Minister Branko Ruzic said the draft guarantees equal treatment of state companies in accordance with the Serbian Constitution, an argument dismissed by freedom of information commissioner Rodoljub Sabic, who said there was no justifiable reason for these companies to be exempted since they are also financed by taxpayers.
The FOI law, officially the law on free access to information of public importance, also established the office of the Commissioner for Information of Public Importance and Personal Data Protection. Sabic, the only person to have held the post, stepped down on 22 December after 14 years on the job. No successor has yet been named, and that too has investigative journalists concerned.
Another controversial provision of the draft law permits state bodies to file lawsuits against the commissioner at the Administrative Court. Critics say this could delay the release of requested information for months or years.
Journalists and civil society activists fear the new commissioner may not understand the role of the media as well as Sabic, who has earned praise but also criticism from some journalists for too often staying aloof from disputes over the public’s right to know.
This is far more than an academic exercise in Serbia. State control over the media, coupled with attacks and killings of journalists, reached its peak under the authoritarian rule of Slobodan Milosevic during the war years of the 1990s but remains at critical levels with President Aleksandar Vucic in power.
Plagiarism, Nigerian Schemes, and Aunties in Canada
Many of the biggest reporting scoops in recent years would never have happened but for the FOI law.
We would never have learned that Defense Minister Aleksandar Vulin could not satisfactorily account for the 200,000 euros he used to buy a flat, which he said was a loan from his wife’s aunt in Canada. We would not have known that the procurement of electronic class registers for schools was handled so as to insure that the highest bid came from the company of a former business associate of Education Minister Mladen Sarcevic. The public would have been deprived of the knowledge that Health Minister Zlatibor Loncar, when a young physician, provided medical reports that helped Petar “Pana” Panic to avoid court hearings for years (Panic is a suspected mobster with links to the far-right Serbian Radical Party).
“A large part of what is probably our best-known project, the database of property owned by politicians, was created thanks to the [FOI law]. Eighty percent of the information and documentation in the politicians’ profiles was gathered thanks to FOI requests,” Stevan Dojcinovic, editor in chief of the Crime and Corruption Reporting Network (KRIK) told the fact-checking site Truth-o-Meter in September.
Cecen, the CINS director, said investigative journalists use official documents in 99 percent of their articles. He gives the example of the current governor of the National Bank of Serbia, Jorgovanka Tabakovic. CINS was able to get a copy of her dissertation only after years of hard bargaining with a private university and after Sabic’s intervention. CINS concluded that a third of the dissertation had been plagiarized.
“We recently published a story about the ‘Nigerian scheme’ run by directors of the Energoprojekt hydropower company, who established a Nigerian company in order to carry out activities that were actually in competition with [Energoprojekt],” Cecen said. “We had to file about 50 FOI requests in order to obtain the documents for this story alone.”
FOI requests were essential to build the stories on corruption and organized crime for which CINS received a European Press Prize for investigative reporting in 2017. Its journalists have filed thousands of FOI requests with police, prosecutors’ offices, and courts for documents relating to corruption cases.
This documentation led to the conclusion, says Cecen, that “a tremendously small number of proceedings end with a verdict, and that all sentences are at or below the legal minimum, which means that our country actually encourages corruption.”
And CINS is not alone. The Balkan Investigative Reporting Network (BIRN), publisher of Balkan Insight, used FOI requests to acquire documentation on then-Foreign Minister Vuk Jeremic’s trips abroad and on the city of Belgrade’s advertising budget during the administration of former Mayor Dragan Djilas, said Slobodan Georgiev, program director for BIRN Serbia.
“On the other hand, we have never received data we requested on [President] Aleksandar Vucic for the period when he was in the Serbian government,” Georgiev said. “The government does not wish to provide us with the requested data.”
Like BIRN, KRIK has begun administrative proceedings against state institutions that refused to honor FOI requests, KRIK’s Dojcinovic said.
“In some cases, our fight was successful, and thanks to the office of Commissioner Rodoljub Sabic, we managed to lay our hands on some information,” he said. But there have been cases when public bodies failed to comply when Sabic instructed them to release documents after KRIK filed complaints, Dojcinovic said.
BIRN has had the same experience. A number of state institutions and public companies did not follow Sabic’s order to release requested information, Georgiev said.
BIRN is still trying, for example, to obtain information about the clandestine demolition of property in Belgrade two years ago to make way for an expensive waterfront redevelopment project.
Protecting Big Companies
Although compliance problems began as soon as the freedom of information law came into force in 2004, CINS director Cecen said the situation deteriorated when the current ruling Serbian Progressive Party came to power six years ago. State bodies became increasingly reluctant to release information.
“I think they became cleverer, and they started inventing new and creative evasive approaches,” Cecen said. “They started to address the courts, lodge complaints against the commissioner. The result is that the number of successful requests is down,” even in cases where Sabic determined the data was in the public interest and should be released, he added.
The journalists and media managers interviewed for this story all agreed the draft FOI law is unacceptable in current form.
“I do not see how and on what grounds the working group that drafted the law managed to conclude that operations of big companies should be protected,” Cecen said of the loophole exempting some companies, mentioning the Srbijagas gas company, Zelezara steel works, and the RTB Bor copper mining and smelting complex.
“So far their business operations have been under a veil, but now it will be legalized. It is a very anti-democratic process, and these are steps that push Serbia back toward non-transparency, and consequently to non-democracy,” he warned.
Dojcinovic and Georgiev agreed that the commissioner plays a crucial role in implementing the FOI law, and share concerns that the job could become exposed to political pressures now that Sabic’s mandate has expired.
“I fear that the office might suffer the same fate as that of the Anti-Corruption Agency, that someone might be appointed who would be involved in … string-pulling with the ruling party and who would not wish to further develop this institution and its authority,” Dojcinovic said.
Civil society organizations have called on the Public Administration Ministry not to adopt the most controversial provisions of the draft FOI law.
Pro-democracy and human rights organizations, concerned over delays in appointing a new FOI commissioner, have appealed to parliament to immediately begin a transparent process to name Sabic’s successor. They also propose that candidates be vetted for connections with political parties and past breaches of the law, in addition to adequate experience, and the integrity needed to supervise other state institutions in the application of the law.
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