After being passed in the House of Representatives, the Freedom of Access to Information Act of Bosnia and Herzegovina was adopted at today’s session of the House of Peoples of Bosnia and Herzegovina, with nine (9) delegates in favor and four (4) against.
This piece of legislation has sparked numerous debates in both chambers of the Parliamentary Assembly of Bosnia and Herzegovina (PSBiH), as well as within civil society. The main points of contention were the sections establishing exceptions for providing information and determining that appeals against institution decisions will be decided by the Appeals Council under the Council of Ministers, which also proposed this Act.
Delegates of the House of Peoples who voted against in today’s session did so because, as they said, the Delegation of the European Union in BiH warned that the Act is not in line with European standards, especially the section about the Appeals Council. They expressed doubts about the transparency and independence of this body as it is part of the Council of Ministers of BiH.
“This Act is not aligned with European standards, yet it is being presented to us as if it is,” said the delegate of the SDA, Šefik Džaferović.
MPs attempted to address this issue by proposing that the second-instance body to decide on appeals should be the Institution of Human Rights Ombudsman in BiH, however, the legislation was adopted without this amendment.
The Minister of Justice of BiH, Davor Bunoza, holds that the Institution of the Human Rights Ombudsman in BiH cannot decide on appeals as it is counter the Constitution of BiH, the Law on HR Ombudsmen of BiH, and the Law on Administrative Procedure: “This institution issues non-binding recommendations and cannot make substantial decisions on appeals against the bodies of institutions of BiH. The Appeals Council might not be the best model, but it is in line with international standards. This proposal is the only plausible one, and best option that we can offer.”
Ivana Korajlić, the Director of Transparency International BiH, believes that the Council is not independent, hence it cannot be expected to act independently in cases involving institutions of the Council of Ministers.
“It is particularly concerning that it is not clear how the Appeals Council can handle appeals related to decisions made by institutions not under the jurisdiction of the Council of Ministers, such as courts, prosecutor’s offices, High Judicial and Prosecutorial Council, and others.”
According to Korajlić, representatives of civil society have submitted more than 200 comments since 2021 when the draft of this legislation was published, but the Ministry of Justice of BiH ignored them. In their comments, they particularly criticized the expanded list of exceptions, which is now much longer than in the existing law. Korajlić noted that it is not clear what the exceptions specifically refer to, which leads her to believe that officers within institutions will interpret them arbitrarily, on a case-by-case basis, potentially leading to the misuse of the exceptions.
“Adding to this the fact that there will no longer be an obligation to automatically conduct a public interest test in cases where exceptions are identified and that the public interest test must be explicitly requested, it becomes clear that access to information will be hindered from the outset.”
However, Minister Bunoza holds that the exceptions are in line with the EU Directive on open data: “The fact that there are more lines does not mean that there are more exceptions; this is to prevent abuse and align the law with international standards.”
On the other hand, the Minister is concerned whether institutions will be ready for proactive disclosure of information as required by the Act. He believes that the number of requests will decrease if the Act is complied with, as information should be publicly available on the websites of institutions.
“Experience has shown that this is often abused. If certain information is available in some form on the website, the institutions feel that they have the right to deny access to information upon request, even when the information available is incomplete,” says Korajlić.
Despite the shortcomings he himself pointed out during both sessions of the House of Peoples, delegate Zlatko Miletić was among those who voted in favor. He felt that the Act should first be adopted, and then amended to improve its quality: “Sometimes, one has to bite the bullet to move forward because ultimately, this will be for the benefit of the citizens.”
Ivana Korajlić holds that the quality of the legislation should have been ensured while the text is in the procedure, as temporary solutions in BiH tend to become permanent.
The BiH Freedom of Access to Information Act, which is one of the 14 priorities from the European Commission’s Opinion on BiH’s application for EU membership, will come into force eight days after its publication in the Official Gazette of BiH.