In its Brief Alert the coalition prEUgovor warns about bad solutions in the Draft Amendments to the Law on Free Access to Information of Public Importance, explains clearly and concisely how it will diminish the achieved level of rights and offer recommendations for the public debate.

The Ministry of State Administration and Local Self-Government (hereinafter: the Ministry) is conducting a public debate on the Draft Law on Amendments and Supplements to the Law on Free Access to Information of Public Importance (the Draft) from 27 May to 16 June 2021.

The published Draft contains a number of controversial solutions, i.e. provisions that are in conflict with the constitutional guarantee that the achieved level of rights cannot be reduced. The Draft not only prescribes additional grounds for restricting the right to free access to information, expands the circle of entities that are exempt from the application of the Law and increases the number of bodies against whose decisions an appeal is not allowed, but also literally “erases” the priority of the public’s right to know from the legal text.

Moreover, the Draft does not offer solutions to any of the burning problems that have been highlighted countless times to date, both by the Commissioner and the professional public. Among them are (non)enforcement of the Commissioner’s decisions, inefficient supervision of the application of the Law and the procedure for the election of the Commissioner.

Recommendations:

• Take advantage of the public debate to improve the proposed text of the Draft, because the current solutions inevitably lead to a reduction in the achieved level of rights;
• Delete disputed provisions from the Draft - those that provide additional grounds for restriction of the right to information, expand the circle of entities that are exempt from the application of the Law and increase the number of state authorities against whose decisions a complaint to the Commissioner is not allowed;
• Re-introduce the so-called public interest test into the Draft;
• In the case of authorities whose decisions cannot be appealed, it is necessary, first of all, to delete the obligation of the applicant to “repeat” the request before initiating an administrative dispute. It is also necessary to prescribe reasonable deadlines for the action of the Administrative Court in such cases. If an appeal against the decision of these authorities is not to be allowed, then it is necessary, by prescribing such deadlines, to enable the applicant with at least some equality of legal protection;
• Improve solutions that regulate the enforcement of Commissioner’s decisions, primarily through the concretisation of the Government’s obligation to ensure the enforcement of the Commissioner’s decisions, but also by increasing the fines the Commissioner can impose, as well as by anticipating the possibility of fining the responsible person;
• Entrust the supervision of the implementation of the Law to the institution of the Commissioner, especially having in mind its previous successful practice in supervising the implementation of the Law on Personal Data Protection, which was entrusted to this institution, and accordingly increase the number of Commissioner’s employees;
• Regulate in detail the process of electing the Commissioner to unequivocally ensure full transparency and complete absence of political influence, i.e. provide a guarantee that professional and personal capacities and qualities of proposed candidates will be decisive in the process of selection.

This document has been produced with the financial assistance of the European Union, as part of the project “PrEUgovor Policy Watch: building alliances for stronger impact in uncertain future”. The contents of this document are the sole responsibility of the prEUgovor coalition and can under no circumstances be regarded as reflecting the position of the European Union.