In the context of the drafting of a new law on access to information, the option of creating a specialized institution, such as an information commissioner, to ensure that this right is respected, was also discussed recently in Chisinau. While some experts say the initiative is timely, others point out that implementing this objective is not in the near future.
The international conference “Effective implementation of the right to information: from a new law on access to information to institutional changes in the Republic of Moldova”, held in early June, was attended by European and local experts and representatives of several authorities.
TASKS OF A COMMISSIONER FOR INFORMATION
From the outset, Council of Europe expert Helen Darbshire described as problematic the statistical data noted in the context of a study on the number of refusals to information requests in the Republic of Moldova. “When you hear such data (that 50% of requests for information go unanswered) – you have a problem. You have an investment problem, but I think part of it is also due to lack of resources. If you had well-funded public institutions, I think this rate would be different. And if you had a well-funded supervisory body, this problem could not be overlooked,” noted Helen Darbshire.
The expert also says that according to a survey, most EU countries opted for the creation of an access to commissioner for information, with some preferring a government institution and others – an information and privacy commissioner and/or ombudsman. “If you believe in the importance of access to information, you understand that this is a specific right, different from personal data protection. It’s good to have a specialised, separate entity that will be more robust,” underlined Darbshire.
Dawid Sześciło, an expert from the EU-Moldova Association Project, explained what the key tasks of such a commissioner would be: analysis (examining appeals against refusals of access to information); compliance control (carrying out inspections, imposing sanctions); advocacy (collecting data, setting guidelines, providing training and advice, cooperating with civil society).
He believes it would be more effective to create a single institution responsible for the scope of the right to information: “In Moldova there is already an effort to implement this law [on access to information], but efforts are somewhat dispersed, fragmented”. The expert is of the opinion that the function of independent information commissioner should not be assigned to the Ombudsman or the data protection authority and listed the main conditions for such a task: strong mandate, independence and capacity.
BALKAN EXAMPLE
Dejan Milenković, from the University of Belgrade, referred to the experience of the Serbian Commissioner for Information, an institution responsible for both access to information and personal data protection. Functional independence is stipulated by law and the commissioner is appointed by MPs for a seven-year term. In Montenegro, by contrast, the Commissioner is a collegial body, consisting of a chairman and two members. In Serbia, the institution consists of 104 employees, and in Montenegro – 30 employees. In both cases, the majority of them are concerned with personal data protection. Statistics show that in Serbia the number of claims on violations of the right of access to information increased by 36% in 2021 compared to the previous year. “We had authorities that did not want to give information even after the Commissioner’s final decision – 1,200 requests that were not executed even after the Commissioner’s decision. Because they were just risking an administrative fine and that was it. It is a specific problem in Serbia, because there the Commissioner has no inspection service. In Montenegro – he/she does, but only partially”, explained Dejan Milenković.
Elona Hoxnaj from the Office of the Commissioner for Information and Personal Data Protection in Albania told about the competences of her institution. The Commissioner in Albania has access to information subject to a claim, including information classified as “state secret”, encourages the principle of transparency and issues recommendations. In terms of sanctions, Albania imposes fines ranging from €1,200 to €2,500 for refusing to make information available, and penalties ranging from €400 to €800 for failing to implement the institutional transparency programme on time. Fines are also foreseen for the destruction of official documents to avoid the right to information. “As for the challenges, the difficulties we face in our work, the main problem is that we still have civil servants who do not even know about the obligation to interpret all information held by their authority as information of public interest”, noted Elona Hoxnaj.
REPUBLIC OF MOLDOVA EXAMINES THE OPTIONS
Liliana Rusu, Head of the Directorate for Policy Analysis, Monitoring and Evaluation of the Ministry of Justice, said that the authority is involved in drafting a new law on access to information and is analysing expert opinions to identify optimal solutions. “Probably, most discussions will be related to the institutional mechanism. We, in fact, have seen that there is no single model. Practices are different. We have seen that some countries have opted for the establishment of an independent body in this sector – the establishment of a commissioner. Other states have given this competence to the institution of the Ombudsman or the institution mandated with the competence of personal data protection. And, of course, another model, which is not excluded from this formula, is the mechanism whereby a person, if he or she obtains a refusal to provide data, can appeal directly to this authority or to the court. This mechanism now exists in the Republic of Moldova”, said Liliana Rusu.
The People’ s Advocate, Ceslav Panico, noted that in 2021 the institution did not receive any claim of violation of the right of access to information, but only received requests for information on how to address the European Court of Human Rights.
The Freedom House representative in Moldova, Tatiana Puiu, is of the opinion that the establishment of an institution such as the Commissioner for Information would require thorough preparations: “We need to evaluate very carefully and see which formula is more appropriate”. She explained to Media Azi that, before setting up such an entity, it is necessary to assess its necessity, the number of staff, but also the aspects of credibility and independence. “I do not think it is possible now, in the current context, in the Republic of Moldova, but it’s a matter for the future. Because it is not only about sanctioning, but also about monitoring, control, collection of statistics. It is a long-term thing, I do not think it will be done by autumn”, added also Tatiana Puiu.