Romanian FOI Law Is Well-Utilized, Report Says

25 March 2013

Positive rulings from the courts have strengthened the 10-year-old Romanian freedom of information law and made it a well-used instrument, according to a new report funded by the World Bank.

“The media and civil society embraced the law and have used its provisions to create positive legal precedents, good practices, and monitoring tools,” according to a summary of the report.

“They used the law to obtain needed but sensitive information, quantified government compliance by recording and publishing results of standardized mock requests; and undertook strategic litigation under the FOIA to test the limits of the law’s applicability and creating valuable and visible legal precedents,” the report says.

“The fact that the both central and local public institutions have responded favorably to 95–98 percent of requests received is encouraging, and is evidence of strong deterrence effect created by the flagship court cases initiated and popularized by the media and civic activists.”

The report was written by Sorin Ioni£? and Laura ?tefan. Ioni£? is described in the credits as an expert in public administration and local policies with the Bucharest-based think tanks — Romanian Academic Society (SAR) and Expert Forum (EFOR) — a public news commentator, and Romania’s representative in the European Economic and Social Committee (EESC); Stefan is a legal and anticorruption expert with the SAR and EFOR, a former director in the Ministry of Justice, and an expert with the Council of Europe.

The report on Romania is one of eight case studies prepared as part of a World Bank project on RTI implementation, supervised by Anupama Dokeniya, a World Bank Staffer. (See previous FreedomInfo,org report.)

Court Interpretations Favorable

The interpretation of the scope of the law by the courts “lean toward a liberal, protransparency notion of the term `public institution,’ “ the report says. “Public institutions are thus interpreted as bodies that are financed wholly from the public purse and are subject to the law as well as those governed by government appointees (such as public companies), especially those operating in a state protected monopoly (hence without competitors for their commercial activities), such as the postal service, forest management, and state export promotion banks).”

Noting the success of litigation, the authors summarize:

Finally, the SAR, the IPP, and several other civic actors appeared before courts with strategic and visible cases about information of public interest not being willingly disclosed by public institutions.

They won almost all of them, whether the issue at stake was the breakdown of office expenses by an individual councilor — decision: this is not personal information; conditions of privatization of a carmaking plant with Ford Motors by the State Property Authority — decision: confidentiality clauses requested by the investor and accepted by the state cannot override the law, so the contract and all annexes should be made public; or public relations and service contracts concluded by the state-owned export promotion Eximbank — decision: these contracts are not covered by the banking secrecy rules because these apply only to clients, not to subcontractors.

In a discussion on the rulings concerning exemptions, the report observes: “The exemption most difficult to implement relates to information involving the protection of youth; a similarly worded provision appears in the constitution. To date, no consistent practice exists regarding the scope of this exemption.”

Few Fees Charged

No “truly powerful FOIA coordination agency” emerged, according to the report. Looking at how agencies handle requests, the report says that many agencies don’t bother to collect allowable fees. The report makes some suggestion on record management practices. The monitoring and reporting about the FOI process itself needs improvement, the report details.

Looking at proactive disclosure practices, the authors conclude, “The quality and completeness of information posted online is still weak.”

The use of the law has been robust concludes the report, providing data and examples. “The creativity of a few civil society actors in exploiting the possibilities offered by the law has been remarkable,” the report says.

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