The
Freedom
of Access to Information Act (FoAIA) was adopted in
July 2001 in Bosnia-Herzegovina and in the Republika
Srpska in May 2001.(1)
It went into effect in February 2002. The Act was adopted
after Carlos Westendorp, the High Representative for Bosnia
and Herzegovina, ordered that a freedom of information bill
be developed by the Organization for Security and Co-operation
in Europe (OSCE). A high-level group of international and
national experts developed the draft bill in June 2000 based
on some of the best practices from around the world.
•
Combined gross enrolment ratio for primary,
secondary and tertiary schools, 2002/03: 67.3
•
GDP per capita (PPP US$) (HDI), 2003: 5,967
•
Total population (millions), 2003: 4
•
Total fertility rate (births per woman), 2000-05:
1.3
•
Under-five mortality rate (per 1,000 live births),
2003: 17
•
Net primary enrolment ratio (%), 2002/03: N/A
•
HIV prevalence (% ages 15-49), 2003: <0.1
[<0.2]
•
Undernourished people (% of total population),
2000/03: 8
•
Population with sustainable access to an improved
water source (%), 2002: 98
Source:
UN Development Program, Human Development Reports
Data
The
Act applies to information in any form held by any public
authority including legal entities carrying out public functions.
It also provides for a broad right of access by any person
or legal entity, both in and outside of Bosnia. The request
must be in writing. The government agency must respond in
15 days. However, the Act does not apply to international
organizations, such as the OSCE, which effectively run the
country.
Information
can be withheld if it would cause "substantial harm"
to defense and security interests, the protection of public
safety, crime prevention and crime detection. Non-disclosure
is also mandated to protect the deliberative process of
a public authority, corporate secrets and personal privacy.
A public interest test is applied to all exemptions.
Those
who have been denied information can also appeal internally
and challenge decisions in court. The Federation
Ombudsmen and the Ombudsman of Republika Srpska can
also hear appeals. In 2004, the Ombudsmen heard nearly 100
complaints, up from 30 in the first year and 60 in the second
year. 90 percent of the cases were found to be justified
and resulted in Ombudsman intervention and obtaining of
the information. Eight recommendations against public authorities
who refused to comply were issued resulting in compliance
in five of the cases. In Republika Srpska, the Ombudsman
received 138 complaints in 2004, up from 26 the previous
year. Most were justified and resolved by the Ombudsman
contacting the body.(2)
There
have been many problems with implementation. The Federation
Ombudsmen have dedicated a section in their annual reports
on implementation of the FoAIA. The first, issued before
the Act went into force called for Ministries to disseminate
guides, a register and select information officers.(3)
They described the situation of FOI in 2004 as "unequally
and inconsistently applied, although, generally, it was
somewhat more effectively applied than in the first two
years of its application."(4) They
describe the situation as "this right [is] often restricted,
on one hand, due to lack of readiness of majority of governmental
organs and, on the other hand, due to systemic non-harmonization
of other laws with the Act." They found inconsistent
interpretations by public bodies, a failure to evaluate
the public interest based on unlawful class exemptions,
and later legislation adopted by the Parliament that unlawfully
restricts the right of access. According to the Ombudsmen,
"certain public organs "do not feel themselves
obliged" to apply the Act, since "no one instructed
them to do so, or remind them to do so"". They
recommended in 2005 that the laws be systematically reviewed
to ensure harmony with the FOI.(5)
The
Ombudsmen reported in December 2004 that only 142 public
bodies were following the rules and recommended that the
Ministry of Justice create a registry of all public bodies
to improve awareness. They also recommended that the government
require that public bodies produce their quarterly reports.
In Republic Srpska, the Ombudsman reported that only a "couple"
of bodies had properly prepared for the Act and many had
not appointed information officers, created indexes or guides
and are not aware of their obligations or have "wrongful
understanding" of it. A 2005 review by the Center for
Free Access to Information found that only 57 percent of
bodies responded to requests.(6)
The
OSCE Mission to Bosnia and Herzegovina held a regional conference
in December 2004 and found that "municipal representatives
have noted that many citizens are not aware of this legislation,
as the number of requests for information was minimal."(7)
The
Law
on the Protection of Personal Data was enacted in December
2001. It allows individuals to access and correct files
containing their personal information held by public and
private bodies. It is enforced by a Data Protection Commission.
The
Criminal
Code prohibits the disclosure of state secrets. Violations
can be punished for up to five years imprisonment.(8)
There is a public interest exemption if the person does
it "with an aim of disclosing to the public facts which
constitute a violation of the constitutional order or of
an international agreement, provided that the making public
does not undermine the national security of Bosnia and Herzegovina."
The Ombudsmen issued a critical report of the Public Information
Acts in Sarajevo and Una-Sana for overly broad prohibitions
on publishing on information that would "jeopardize
state secrets."(9) In 2002, the Ombudsmen
recommended against the release of intelligence files related
to candidates for the upcoming election.(10)
3
JUNE 2003 BOSNIA
AND HERZEGOVINA: The State of FOI
The Ombudsman Institution of the Federation of Bosnia and
Herzegovina has recently published a report discussing the
citizens rights to information and the situation in the
area of journalistic freedoms. The report can be found here.
5.
Special report on non-harmonisation of the Criminal
Procedure Code and the Law on Tax Administration with freedom
of access to information act for FBiH - following drawing
attention of the Government of the Federation of BiH and
the Ministry of Justice of the Federation of BiH at this
fact, 27 June 2005.
"There
were some restraints of freedom of the press and
instances of open threats from government officials
still occurred. Unlike in previous years, media
outlets were more commonly subject to less overt
pressure, such as the loss of advertising opportunities
and limitations on access to official information.
. .
Although
the Law on Freedom of Access to Information
provides for citizen access to government records
and complies with international standards for
this type of legislation, many government agencies
experienced difficulties in complying with the
Law due to lack of sufficient staff and financial
resources. For example, some agencies have not
yet prepared the required registry of documents
available and guidelines for access to them.
According to the law, the Government must provide
an explanation for any denial of access. Citizens
may appeal denials in the court system or to
the Ombudsmen's offices. There are no fees associated
with access requests, although requestors must
pay photocopying costs for documents longer
than 10 pages. Public awareness of the law's
provisions (except among journalists) remained
low."
1)
Voice and Accountability: -0.14
2) Political Instability and Violence: -0.85
3) Government Effectiveness: -0.54
4) Regulatory Burden: -0.66
5) Rule of Law: -0.76
6) Control of Corruption: -0.54
