1. Article 16 of the Constitution of Macedonia guarantees "access to information and the freedom of reception and transmission of information".

2. The Law on Free Access to Information of Public Character was adopted on 25 January 2006. It is scheduled to go into force in September 2006.The law allows any natural or legal person to obtain information from state and municipal bodies and natural and legal persons who are performing public functions. The requests can be oral, written or electronic. Requests must be responded to in 10 days.

3. Subject of the Law

Article 1

1. The present Law shall regulate the conditions, manner and procedure of exercising the right to free access to information of public character disposed by state admini­ stration bodies and other bodies and institutions esta­ blished by law, municipal bodies, bodies of the City of Sko­ pje and of the City of Skopje’s municipalities, public insti­ tutions and services, public enterprises, legal and natural persons performing public competences and activities of public interest, determined by law (hereinafter referred to as information holders).

1. The right to free access to information of public character shall be exercised in accordance with the present Law and other laws.

1. The Commission for Protection of the Right to Free Access to Information of Public Character shall adopt the Instructions on the manner and procedure of implem­ entation of the present Law.

The first article defines the subject of the Law regarding the right to free access to public information for all subjects.

This legal provision determines that the Law stipulates the terms, conditions and procedure (emphasized by the authors) for exercising this right, thus leaving the impression that a specific procedure different from the general administrative procedure exists thereof. Having in mind that the Law’s subject - right to free access to public information which often condition the exercise of other civil rights - its implementation requires indeed special legal provisions to facilitate simpler, faster and different procedure compared to the administrative procedure. Unfortunately, from the text further on one cannot conclude that such a detailed, specific and fast-track procedure is provided for. It seems that most of the legal provisions refer to the Law on General Administrative Procedure, with somewhat surprising derogations. They will be discussed in detail as part of the comments given on the particular legal provisions herein.

At the very beginning - in Article 1, Paragraph 1 - Freedom of Public Information Law lists the subjects holding such information (referred to as “information holders”), that are obliged to comply with this Law. A mistake can be noted in the very beginning of the list as immediately after the state authorities, “other bodies and institutions” are specified. Namely, state authorities are not bodies. The text further on lists “municipal bodies and the City of Skopje and the municipalities of the City of Skopje” (the last item is unnecessary, while all of them have a common defining phrase

• local government units). They are followed by the formulation “public institutions and services”. It remains completely unclear why the legislator chose to include public institutions only in this Law, ignoring private and mixed ownership institutions. In compliance with the Law on Institutions from 2005, institutions can be public, private and mixed ownership depending on their founder; they all however perform public activities and provide public services hence they need to be treated equally in terms of securing free access to public information for all interested citizens regarding their work. Subsequently, the term “institutions”, without emphasizing public institutions and services will suffice for this legal text (many eminent theoreticians are still debating

the notion of public service, thus it is too wide a term to be used within legal listings).

The second paragraph of Article 1 stipulates that this law shall be applicable in terms of exercising the right to free access to public information, but also leaves the possibility to be regulated by another legal text. This provision is introduced since other laws in the Republic of Macedonia regulate the same matter, hence the need for their harmonization and coordinated efforts of the competent authorities. Such is the case with the Law on General Administrative Procedure as lex generalis, Personal Data Protection Law, Classified Information Law etc.

The last paragraph of Article 1 stipulates the responsibility of the Commission for Protecting the Right to Free Access to Public Information on adopting Guidelines on the procedure for implementing this law. The Commission referred to is the competent body in charge of implementing the law, while its status, composition and competencies are stipulated in a separate chapter. Concerning its obligations, the Commission, at the beginning of its operation adopted the required Guidelines in the form of secondary legislation and published them on its website.

2. Purpose of the Law

Article 2

1. The present Law shall provide for publicity and openness in the operation of information holders, and shall enable natural and legal persons to exercise their right to free access to information of public character.

1. Information holders shall be bound to provide for public information through out their operation.

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Article 2 of the Law determines the purpose for its adoption. Besides the fact that it ensures transparency and openness in terms of the work of the information holders, it also enables natural and legal persons to exercise a new right that could be deemed essential in many life situations. Undoubtedly, with the adoption of this law, the Republic of Macedonia is making a step forward towards democratization of society, opening the institutions for the wider public, increasing public control of the work of public authorities and all public authority service providers, which, ultimately, will strengthen citizens’ trust in public authority holders and public administration. With the adoption of the Freedom of Public Information Law, the Macedonian legal system becomes closer to the European and World standards in the field of freedom of information.

The second paragraph of Article 2 is crucial as it stipulates the obligation of all information-holders to inform the public about their work. Nevertheless, this provision lacks details for appropriate practical application. It would be good if the Law listed the manners in which all information-holders are obliged to provide public information. Unfortunately, without precise stipulations, the likelihood is that the Law will be merely words on paper. This also imposes the need for future amendments to the Law on the Organization and Operation of Public Administration to anticipate the responsibility of all public administrative bodies to publish primary and secondary legal on the basis of which they perform their competencies on their websites. Article 36 reiterates the responsibility of information-holders to inform the public on the terms and conditions to access information, but this provision is just a declaration and does not clarify Article 2, Paragraph 2 from this law. In future, if there are amendments to the law, it would be necessary to determine and list the terms for informing the public on the operation of information-holders such as: announcements of all acts in the official bulletin or on the institutions’ websites, publishing public announcements about more important performed activities, posting announcements, publishing statistics, and reporting not only to supervisory and monitoring bodies, but to citizens’ associations, foundations, etc.

as well, including to representatives of particular interest groups. Penalties for failure to act should also be stipulated, which was omitted in this Freedom of Public Information Law.

Article 3

Certain expressions in the present Law shall have the following meanings:

• “information holders” shall refer to state administration bodies and to other bodies and institutions specified by law, municipal bodies, bodies of the City of Skopje and to municipalities comprising the City of Skopje, public institu­ tions and services, public enterprises, and to legal and natural persons performing public competencies and activities of public interest determined by law;

• “information of public character” shall refer to information in any form whatsoever, created and disposed by an information holder i.e. disposed by the information holder only in line with its competencies (hereinafter referred to as “information”);

• “information requester” shall refer to any legal or natural person without discrimination on any grounds whatsoever, in a manner and under conditions prescribed in the present Law and in other laws (hereinafter referred to as “the requester”); and

• “document” shall refer to any record of information, regardless of its physical form or features, a written or a printed text, maps, schemes, photographs, pictures, drawings, sketches, working materials, as well as audio, voice, magnetic or electronic reco­ rds, optical or video records in any form whatsoever, as well as mobile equipment for automatic data processing with inte­ grated or transferable memory to store data in digital form.

Article 3 of the Freedom of Public Information Law is a glossary with definitions of the terms previously not specified in Macedonian legislation. Such a glossary at the very beginning

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of a legal text is common practice in legislative acts regulating a new matter previously not addressed by other legal acts. This is necessary for the information-holders, particularly for the natural and legal persons with the right to free access to public information to clarify their rights and obligations. Once again, we would like to reiterate the fact that the definition of “information-holder” is inappropriate (Article 3, Paragraph 2, Line 1), and identical to the list of information-holders of Article 1, Paragraph 1. The comment for Article 1 is also true for the definition in this provision.

3. Free Access to Information

Article 4

1. Free access to information shall be enjoyed by all legal and natural persons.

1. Free access to information shall also be enjoyed by foreign legal and natural persons in accordance with the present Law and other laws.

The legislator’s broad approach in determining the scope holders of the right to free access to public information made in Article 4 of the Law is welcomed. Namely, this Article anticipates free access to information for all (emphasized by the authors) natural and legal persons, both national and international, with insignificant derogations in terms of the right of international persons as stipulated by other national laws.

1. Publishing the Information Holder List

Article 5

The Commission for Protection of the Right to Free Access to Information of Public Character shall, once a year (in the media, a bulletin, on a website), publish a list of holders of information of public character, and the responsible person within the information holder.

This Article of the Law anticipates another responsibility of the Commission for Protecting the Right to Free Access to Public Information, which is the publishing of the Public Information Holder List, as well as the information officers within the information-holders. This provision favours easier exercise of the right to free access to information, as citizens will be able to obtain information on the responsible person within the body or institution on one place (Internet site, public information gazette or a bulletin). To address the usual wondering from one to another office/department, Article 5 of the Law makes the Commission for Protecting the Right to Free Access to Public Information responsible for publishing the names of the responsible information officers.

Indeed, the Commission can only fulfil this duty in full cooperation with information-holders. Unfortunately up to date, although the Freedom of Public Information Law went into effect several months ago, some bodies and institutions have still not appointed (or have not announced the names) persons responsible for access to public information. To improve the situation, it is necessary for the Law to either provide penal provisions or to make it possible to apply the new Law on Misdemeanour from 2006 with which the Commission for Protecting the Right to Free Access to Public Information will be able to fine information-holders that have not appointed an information officer.

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1. Derogations from Free Access to Information

Article 6

1. Information holders may reject a request to access information in accordance with the law, should the information in question relate to the following:

1. information that, under the law, represents classified information of appropriate degree of secrecy;

1. personal datum the disclosure of which would mean violation of personal data protection;

1. information on archive working having been identified as confidential;

1. information the disclosure of which would mean vio­ lation of the confidentiality of the tax procedure;

1. information obtained or compiled within an investigation, a criminal or a misdemeanour procedure, for the purpose of conducting an administrative or a civil procedure, the disclosure of which would have harmful consequences for the course of the procedure itself;

1. information relating to commercial and other economic interests, including the interests of monetary and fiscal policies, the disclosure of which may have harmful consequences for the exercising of a particular function;

1. information contained in a document undergoing a procedure of compiling and still being subject of harmo­ nization with an information holder, the disclosure of which would cause misunderstanding of the contents of the document in question;

1. information related with environment protection which is not available to the public due to the human health and environmental protection; and

1. information jeopardizing industrial or intellectual prope­ rty rights (patent, model, sample, goods or service seal, product origin indication).

1. Information listed in paragraph (1) hereunder shall be­ come available once the reasons for its being unavailable shall cease to exist.

1. Under exception to paragraph (1) hereunder, information holders shall allow access to information should, in case such information is published, consequences to the inte­ rest being protected be smaller than the public interest to be maintained with the publishing of such information.

Article 6, Paragraph 1, provides a list of information for which free access can be denied by the holders such as:

1. information which is classified up to a certain degree of confidentiality in compliance with the law. Such classified information is information deemed as confidential with a various degree of restrictions in accordance with the Law on Classified Information;

1. personal data whose disclosure would violate the per­ sonal data protection principle for instance personal data forbidden in compliance with the Law on Personal Data Protection;

1. information on archives, which is deemed as confide­ ntial;

1. information whose disclosure would mean violation of the confidentiality of the tax procedure; more specifically regulated with Article 9 from the Law on Tax Procedure;

1. information obtained from an investigation or criminal, misdemeanour, administrative or civil procedure, whose disclosure would endanger the course of the procedure or harm the procedure itself;

1. information concerning commercial and other economic interests, including the interests of the monetary and fiscal

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policy, whose disclosure would have a negative impact on the expected results. This line is not completely clear and needs to clearly define who are the holders of commercial and economic interests, and to whom the negative impact would be detrimental;

1. information from documents under preparation whose disclosure would cause misinterpretation of the document’s content. This means that the holder of information from an incomplete document shall not disclose information as the document is incomplete or unfinished because the information could be misunderstood and interpreted differently from its original intention;

1. information on environmental protection that is not publicly available due to the protection of health and environmental issues. To deny access to this type of information, it must be classified with a certain degree of confidentiality by the line minister or other official who, in compliance with the law, has the right to determine the degree of confidentiality;

1. information threatening industrial or intellectual prope­ rty rights (patent, model, sample, good or service mark, origin indication).

The second paragraph of this Article stipulates that this information cannot be permanently inaccessible, but that it will become accessible as soon as the grounds for restriction cease.

Special importance in the overall context (inaccessibility to particular information) is given to the last paragraph of Article 6 which is a general derogation from restricted access to information listed in the first paragraph. Namely, the information-holder is obliged to assess whether the interest protected by withholding particular information listed in Article 6, Paragraph 1 is bigger (or smaller) than the public interest achieved by disclosing the information. Hence, if the public interest achieved by free access to information in compliance with Article 6, Paragraph 1 is bigger than the interest because of which the information was categorized

as restricted, the information-holder is obliged to enable access to that information. This provision also applies to the Commission for Protecting the Right to Free Access to Public Information when deciding upon appeals submitted by parties whose free access to information was denied on the basis of Article 6, Paragraph 1, provided the disclosure of information is of public interest.

As for the last paragraph of Article 6, it is necessary to emphasize the fact that the information-holder has discretionary rights, which must be stipulated with greater details. Namely, public interest can be stipulated only by law, while in terms of this provision derogations from the stipulated public interest are left to the discretionary assessment of the information-holder.

6. Partial Access

Article 7

If a document or any part thereof contains information mentioned in Article 6, paragraph (1) of the present Law, which may be separated from the document in question without jeopardizing its overall security, the information holder shall separate such information from the document and shall inform the requester on the contents of the remaining part of the document.

Article 7 quite clearly anticipates the obligation of the infor­ mation-holders, if they can separate the confidential information referred to in Article 6, Paragraph 1 in the documents, and allow access to the rest of the document for the information-requester.

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1. INFORMATION OFFICER

1. Officer

Article 8

1. Every information holder shall designate one or more officials for information mediation for the purpose of exercising the right to free access to information.

1. The information holder shall be obliged to inform the public on the official in charge of information mediation.

1. The official in charge of information mediation shall maintain contacts with the information requester and shall provide it with the information and support necessary, and shall maintain appropriate records of information requests received and of information storing and issuing.

1. Several information holders may together appoint one or several officials in charge of information mediation in the exercising of the right to free access to information.

Article 8, Paragraph 1 stipulates the obligation of all infor­ mation-holders to appoint at least one information officer who will be in charge of securing free access to information.

In addition, Paragraph 2 of the same Article makes information-holders responsible to inform the public about the appointment of

the information officer. Within a period of three months after this law went into effect (the time when these comments are drafted), some information-holders haven’t appointed information officers yet, or the public has not been informed. Bearing in mind the inertia of the information-holders the legislator has envisaged fines from 20,000 to 40,000 MKD (Article 41 of the Law) for the information-holder that has not appointed an officer to secure free access to information, thus not fulfilled the obligation stipulated in Article 8. As there are institutions that have not performed this legal obligation, the Commission on Protecting the Right to Free Access to Public Information as the competent authority should impose the sanctions stipulated in Article 41 of the Law.

The duties of information officers are listed in Paragraph 3 of the same Article. They are the following: contacting persons interested in free access to information, provision of information for requesters, assisting information requesters in exercising their right and keeping special records on information requests, storing and providing information.

For the purpose of consistency, the last-fourth-paragraph of the Article anticipates the possibility for several information-holders to appoint one or more information officers to secure free access to information. Such a possibility is appropriate for information-holders with a small number of employees who perform same or similar activities and who are been located in the vicinity.

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1. INFORMATION HOLDERS’ DUTIES

1. Information list

Article 9

Each information holder shall be obliged to regularly maintain and update the list of information it disposes with, and to publish such list so as to make it available to the public (on a website, information board etc.).

Article 9 stipulates yet another obligation for information-holders in terms of regular updating the lists of information at their disposal, as well as publication of such lists so as to make them publicly available, for example on their websites, bulletin boards, etc.

Article 42 of this Law stipulates sanctions for failure to act in the form of fines from 20,000 to 50,000 MKD.

2. Information mediation

Article 10

1. The information holder shall be obliged to inform the public on the following:

• the basic data to establish contact with the information holder, in particular: name, address, telephone number, fax number, e-mail address, and website address;

• the manner of submitting a request for access to information;

• the regulations regarding the competence of the information holder, related to the register of regulations published in the official gazette;

• the proposed programs, programs, strategies, views, opinio­ ns, studies, and other similar documents related with the infor­ mation holder’s competence;

• all calls for bids within public procurement procedures, and the tender documentation specified by law;

• information on its competencies determined by law;

• the organization and costs of operation, of providing services to citizens in administrative procedures, and of its own acti­ vities;

• the issuing of information bulletins and other forms of infor­ ming;

• the website publishing of decisions, acts and measures affe­ cting citizens’ life and work; and

• other information that may stem from the information holder’s competence and operation.

1. Each information holder shall be bound to provide for free-of-charge access to information mentioned in paragraph (1) hereunder.

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Article 10 lists conditions under which information-holders are obliged to inform the public, namely:

• first of all, they are obliged to announce basic data related to them, such as: title, address, telephone number, fax, e-mail and website;

• further on, the information-holders are obliged to announce the manner for submitting free access to information reque­ sts (oral and written);

• all acts regulating the authority of the information-holders. It would have been good if the legislator (here or in a separate paragraph) listed the regulations, in the form of secondary legislation adopted by the information-holders as part of their authority such as: guidelines, decrees, orders, directions. This is of particular importance as certain guidelines developed by information-holders are still kept away from the eyes of the public. For example, the job classification act is one of the best protected acts adopted by ministries, public enterprises etc.; denying access to not just to the wider public, but to the employees within that particular entity as well. These acts cannot be found on websites, nor are they available in the bodies. Hence, it would be good for this law to stipulate the obligation of information-holders to make all secondary legislation adopted publicly available. For the future we should be thinking about making information-holders responsible to publish drafts (primary and secondary legislative acts) under their competence;

• programmes (and programme-proposals), strategies, po­ sitions, opinions, studies and other similar documents related to the competence of the information-holder. Again, the formulation “related to the information-holder compe­ tencies” is unclear. If that formulation refers to programmes, studies, strategies, and other documents falling under the competencies of the information-holder, then the meaning is quite different, in which case it means regulations of the information-holder, similar to the previous line stipulating the formulation “regulations concerning the competencies

of the information holder”. If that is not what is meant, it is difficult to assume what kind of regulations are covered (previous line) or documents (listed in this line), referring to (?) the competencies of the listed subjects. On the other hand, programmes, plans and strategies can be adopted only by public or local authorities i.e., institutions and enterprises, so it can be concluded that in the case of adopting regulations and documents, it is a matter of acts under the competencies (underlined by the authors) of information-holders, whereas the formulation “concerning the competencies” - in this context - is used incorrectly;

• call for public procurement bids and appropriate tender documentation. This means that information-holders are obliged to make all public procurements whose procedure entails announcing a call for bids and development of tender documentation available for the public;

• data on information-holder’s competencies stipulated by the law. This line is not completely clear; so and intervention in the Law will be necessary in the future. The formulation “data on competencies” probably refers to public information on all legal competencies of the information-holder, as well as to specific matters (“data”) undertaken;

• organization and operational costs, as well as service pro­ vision to citizens in administrative procedures and their activities. Again, misfortunate combination of several va­ rious things is made: the organization of operations is a matter covered by the Guidelines on the Organization of Operation for each information-holder separately, while operational costs are a quite different matter altogether. Publishing the analyses of operational costs of information-holders would be a good thing, provided such analyses are made. Very rarely do information-holders draft serious analyses of operational costs, determining the price for their services. These subjects have annual financial plans and programmes on budget execution which can be published, although none of them do so. Service provision for citizens in administrative procedure is quite a different matter from the

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previously listed activities; hence it remains quite unclear why it is bundled within the same line. Services for citizens in administrative procedure are issuance of decisions such as specific administrative acts or record-keeping, issuance of certificates, etc. Of course, citizens should be informed on the types of decisions, permits, licenses, certificates, actions, etc., that information-holders are in charge of. On the other hand, this is an integral part of their competencies and therefore it is unnecessarily mentioned in this line;

• publishing information bulletins and other forms of informing. The obligation stipulated by this provision and imposed on information-holders is quite serious and crucial for citizens in light of exercising their rights. Therefore, the responsible supervisory body, in this case the Commission for Protecting the Right to Free Access to Public Information, should make serious efforts to implement this legal provision. This should be done by continuous visits and monitoring information-holders and their obligation to publish and distribute information bulletins to their service beneficiaries, i.e., their clients;

• website where decisions, acts and measures that have an impact on the lives and work of citizens are published, and

• other information under the competence of the information-holder. It is good that the legislator provided for updating the information list which information-holders are obliged to publish, as lists usually do not contain all elements or components of a given matter. Therefore, the last line of Paragraph 1 from Article 10 tries to deal with possible omissions, yet still restricting information within the framework of competencies and the operation of the information-holder.

Paragraph 2 of Article 2 contains the following formulation “all information-holders shall be obliged to enable free-of-charge access to the information referred to in Paragraph (1) of this Article”. This paragraph is of particular importance for exercising the right to free access to public information. The practice so far of

information-holders points out a negative phenomenon of blatant violation of this legal provision. Namely, the researches of several non-governmental organizations, as well as the complaints submitted to the Commission for Protecting the Right to Free Access to Public Information, indicate the fact that many bodies, organizations, enterprises and institutions have set fees for accessing information, making freedom of information senseless. Unfortunately, this Law does not have penal provisions for such illegal behaviour of information-holders.

Article 11

In order to provide for free access to information, the responsible person with the information holder shall be bound to provide to information requesters premises in which the latter may have insight to information requested, and officials in charge of information mediation shall be bound to assist information requesters in their requesting information in accordance with the present Law and with other laws.

For the purpose of exercising the right to free access to requested information, and to enable real implementation, the Law anticipates an obligation for all information-holders to provide for a separate room where information requesters can have immediate insight in the requested information. This is an obligation of the information officer and in case he/she fails to act, a fine can be imposed in the amount of 20,000 to 40,000 MKD in compliance with Article 43, Paragraph 1.

Article 11 contains an additional obligation for the information officers. They are obliged to assist information requesters when submitting information requests. Failure to act will be sanctioned with a fine of 20,000 to 50,000 MKD as stipulated in Article 43, Paragraph 2. It should be stressed that Article 11 sets into motion the principle of service-orientation of public administration which is stipulated as a basic principle in Article 7 of the Law on General Administrative Procedure (Official Gazette of the Republic

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of Macedonia No. 39/05). This, indeed should be welcomed and supported. One should consider the possibility of giving the Commission for Protecting the Right to Free Access to Public Information the authority to initiate misdemeanour procedures and impose misdemeanour fines in line with the penal provisions of this law. This would result in more efficient misdemeanour procedures and amendments to the Law on Misdemeanour, i.e., the chapters on competencies for direct penalties imposed by public bodies and organizations with public authorization. In accordance to the new Law on Administrative Disputes, decisions on misdemeanour penalties can be appealed in front of the Administrative Court of the Republic of Macedonia that is to be established by June 2007.

IV.  PROCEDURE FOR

EXERCISING THE RIGHT TO FREE ACCESS TO INFORMATION

1. Oral or Written Requests

Article 12

1. The requester may request access to information in oral, written or electronic forms.

1. Each requester shall, on the basis of its request, have the right to access information maintained by the information holder, in particular by means of insight, transcript, photocopy or an electronic record.

The fifth chapter of the Law stipulates the procedure for exercising the right to free access to public information. In essence, this chapter refers to the administrative procedure, but the Law also stipulates particular derogations from the general administrative procedure principles.

Article 12, Paragraph 1 stipulates the right of the information requester to initiate a procedure on free access to information in three ways:

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1. written

1. oral or

1. electronic.

This means that the procedure applies the private maxim for initiating a procedure in compliance with Article 129 of the Law on General Administrative Procedure, hence this procedure is not initiated in the line of duty or ex officio, but only upon party’s initiative.

Article 12, Paragraph 2 stipulates the ways in which the information requester can be granted access to the requested information:

1. insight,

1. transcript,

1. photocopy, or

1. electronic form.

2. Oral Requests

Article 13

1. If the requester demands access to information by means of an oral request, the information holder shall be obliged to provide the requester with such access, in a manner to allow the requester sufficient time to get acquainted with its contents, on which the information holder shall compile a written note, unless the procedure involves information mentioned in Article 6, paragraph (1) of the present Law.

1. If the information holder responds positively to the demand mentioned in paragraph (1) hereunder, it shall, immediately afterwards, or within ten days following the

submitting of the demand at latest, enable the requester to become acquainted with the contents of the information request so as to provide the requester with the opportunity for information insight or with a transcript, a photocopy or an electronic record of the information requested.

1. Should the information holder respond negatively to a request or is not able to respond to such a request immediately, or if the requester files an oral or written complaint as to the manner of their being acquainted with the information requested, the official in charge of information mediation shall be obliged to draft an official note regarding such a demand to include data on the requester and the date of demand receipt, and to inform the requester of the information in question on the special request or on the information requested.

1. In cases mentioned in paragraph (3) hereunder, the procedure following the oral request shall proceed in the same manner as in case of a written request for information, in accordance with the present Law.

Article 13 stipulates the contents of the oral request and the procedure on accessing public information.

When an information requester submits an oral request to access specific information, the information-holder is obliged to provide sufficient time for the requester to familiarize himself/ herself with the information’s content for which the information officer is compiling an official record. Derogation to this principle is granted when access is requested to the information listed in Article 6, Paragraph 1 of this law, i.e., when access to particular information is restricted.

The administrative procedure starts the moment the information officer provides the necessary conditions for the information requester to familiarize himself/herself with the contents of the information. This principle is also in compliance with Article 128, Paragraph 1 of the Law on General Administrative Procedure,

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according to which a procedure is initiated when the competent authority has performed any activity related to the procedure, without having to issue any official document to announce that.

The second paragraph of Article 13 anticipates a deadline of 10 days within which the information-holder is obliged to enable the information requester to familiarize him/herself with the contents of the information requested.

Paragraph 3 of that Article is completely opposite to the previous two paragraphs as it anticipates the transformation of the oral request into written request regardless of the requester’s will. Namely, this paragraph enables the information-holder to provide a negative response to an oral request - or not to provide any answer at all - in which case the information officer is obliged to prepare “an official record by entering the data of the requester and the date of receiving the request” and to inform the requester on the information requested. This seems like a contradiction! First, in the case of oral requests, one assumes that no official or formal request document is drafted, but the formulation “request’s receipt” used in Paragraph 3 of Article 13, one has the impression that the requester must make his/her oral request in a written form in which case the same could no longer be considered a oral request. Furthermore, the fact that the information-holder can respond negatively means the request has been rejected, whereas Article 128 of the Law on General Administrative Procedure stipulates that the competent authority can reject the party’s request only by means of adopting a conclusion. An official note is not anticipated as a special type of act - a document issued in writing during the administrative procedure - hence the same can be deemed as a substitute for a conclusion or an official note of administrative bodies and all other public information-holders. In addition, a special appeal can be submitted against such a conclusion. These mandatory elements of the administrative procedure are completely disregarded by the Freedom of Information Law, hence violating civil rights in administrative procedures.

Last paragraph of Article 13 supports the previous statement. It stipulates that when an oral request is rejected, the procedure

will continue as if a written request was submitted in compliance with this law. This disregards and fully ignores the right to oral request, meaning additional complications and bureaucratization of the overall procedure.

3. Written Requests

Article 14

1. Any written request for access to information shall be decided upon by the information holder, in a procedure determined by the present Law.

1. Issues within the procedure mentioned in paragraph

1. hereunder not having been determined by the present Law shall be governed by provisions contained in the Law on the General Administrative Procedure.

Article 14, Paragraph 1 stipulates that upon the submission of written requests the information-holder is the competent person to make decisions in the procedure as stipulated by the Freedom of Information Law.

Immediately after that, the second paragraph contains a reference that for issues pertaining to the referred procedure stipulated by this law, the provisions of the Law on General Administrative Procedure will be applied. Further in the text, one can regretfully state that an attempt is made to derogate the general procedural rules of behaviour of the public authorization holders for issues already thoroughly and precisely stipulated by the Law on General Administrative Procedure. Specific comments stemming from this remark will be provided for each article individually.

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4. Submission of Requests

Article 15

1. The request for access to information shall be submitted by the requester to the information holder.

1. As for a request mentioned in paragraph (1) hereunder submitted in electronic form, the provisions of the present Law and of other laws shall apply.

Article 15 stipulates that free access to-information requests are submitted directly to the information-holder by the requester in person.

As for electronic requests, the Law anticipates that despite the provisions from this law, other legislative acts can also be applied.

5. Request’s Content

Article 16

1. The type and format of the request to access information form shall be determined by the Commission; the information holder shall be bound to provide the requester with such a form;

1. Each request shall contain the title of the information holder, the personal name and surname of the information requester, data on the possible representative or autho­ rized person, the firm or the legal person.

1. In its request, the requester shall be obliged to state the information it wants to become acquainted with, and

the way in which it wants to become acquainted with the contents of the information requested (insight, transcript, photocopy, electronic record).

1. The requester shall not be obliged to provide justi­ fication to its request, but it shall have to state that it is submitting a request for access to information.

1. If, on the basis of the subject of a request, it is to be concluded that the procedure is about a request to access information in accordance with the present Law, the information holder shall be obliged to consider such a request in accordance with the present Law.

Article 16, Paragraph 1 stipulates that the type and form of free access to information requests are determined by the Commission for Protecting the Right to Free Access to Public Information, while the information-holder is obliged to provide the given request-form to the requester. The Commission fulfilled its obligation by adopting the Guidelines on the manner and the procedure for implementing the Freedom of Information Law, including the request-form. From this provision, one can conclude that information requesters should submit their requests by means of anticipated forms provided by the information-holder. On the other hand, this provision is in discrepancy with Article 12, Paragraph 1 stipulating oral requests as well. More importantly, the Law on General Administrative Procedure does not anticipate any request-forms, which means that the Freedom of Information Law instead of simplifying the general administrative procedure makes it more complex by means introducing mandatory request-forms. The following question can be raised: what will happen if the information-holder does not provide the request-form stipulated by the Commission? Will this mean legal and practical inability of a person to get access to particular information, merely because the information holder did not have the necessary form? Our opinion is that in such cases the information-holder should accept the request regardless of whether it was submitted in the stipulated request-form or in a different written form. The request-form would certainly simplify the procedure for submitting requests, and serve

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as means of formal communication with information-holders, but only for information requesters who can prepare their own written requests with all the necessary elements.

Paragraph 2 of Article 16 lists the basic elements that each request should contain: title of the information-holder, personal name and surname of the information requester, data on the possible representative with power of attorney, the company or the legal person. This provision is an additional argument in favour of our previous comment pointing out the fact that a submission containing all the listed elements must be considered an official request regardless of whether the party has submitted it in the stipulated request-form or not.

The third paragraph explains Paragraph 2 of Article 16, stipulating the obligation of information requesters to list specific information that he/she wants to know and the manner in which that should be done: insight, transcript, photocopy, electronic form.

The fourth paragraph of Article 16 is of essential importance as it determines that the requester does not need to explain his/ her request to access that information. Unfortunately, practice has shown that despite this imperative legal norm, information-holders often force the parties to provide explanation (oral or written) on the reasons for their request to access information. Such actions are blatant violations of the Law and should constitute grounds for sanctioning the officer asking for such explanation. We recommend that in the case of amendments of the Freedom of Information Law, to provide the possibility for the Commission to impose fines for all information-officers violating the provision stipulated in Article 16, paragraph 4 acting upon complaints submitted by information requesters. This issue will be addressed in detail in the comment on Article 11, Paragraph 4 of the Law.

1. Supplementation and Rejection of Requests

Article 17

1. If an information request is incomplete and if, due to this fact, the information holder is not able to act thereon, it shall ask the information requester to supplement its request and shall clearly specify the consequences if the requester fails to do so. The requester shall be bound to amend its request within three days following the date of its receipt of the notification on the need of supplementing the information request.

1. The official in charge of information mediation shall be bound to provide the requester with appropriate assistance in the supplementing of the latter’s request.

1. Should the requester fail to act in accordance with paragraphs (1) and (2) hereunder, the information holder shall, by a conclusion, find the request to be withdrawn.

1. Should a request, even after being supplemented, fail to meet the requirements mentioned in Article 16 of the present Law, and should the information holder, due to this fact, be prevented from considering such a request, the information holder shall adopt a decision whereby such a request shall be rejected.

Article 17 is entitled “Supplementation and Rejection of Requests” however, we need to point out the fact that the title is inappropriate. Namely, not a single paragraph from this article refers to rejections of requests. Paragraph 3 of Article 17 regulates the issue on stopping the procedure by means of conclusion, while Paragraph 4 of Article 17 determines the situation when a request is returned (not rejected, which is significantly different).

The first paragraph of this Article stipulates a deadline of three days for supplementation of incomplete requests submitted

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by information requesters lacking essential elements for the information-holder to initiate an appropriate procedure. The three days deadline is relatively short, but for the purpose of accelerating the procedure, it seems appropriately. Information-holders are obliged to inform the requesters about the consequences of failure to act (not supplementing the request) within the stipulated deadline.

The legislator has anticipated an obligation (Article 17, Paragraph 2) for information officers to assist requesters in supplementing their requests. Mechanisms to secure performance of information officers are not stipulated by this law, neither are penal provisions for failure to act.

The third paragraph of Article 17 stipulates that the information-holder, by means of a conclusion, states the withdrawal of a request if the requester does not supplement the incomplete request. This consequence is negative. It is mentioned in the first paragraph of this Article. The requester should be informed that it will become applicable in case he/she does not supplement the request. The conclusion in this case will mean termination of the procedure, in compliance with Article 135, Paragraph 2 of the Law on General Administrative Procedure which specifies: “Particular action or failure to act by the party concerned shall be deemed as withdrawal of the request if stipulated by law.” Although the legislator does not stipulate the appeal as regular legal remedy against such conclusions, it should be emphasized that according to Article 134, Paragraph 5 of the Law on General Administrative Procedure: “Special appeals shall be allowed against conclusions that terminate the procedure”. This issue is essential, and in our opinion, this should be precisely stipulated by the Freedom of Information Law. First, because the parties (information requesters) are not always legally wise so as to be able to know that the conclusion stating the withdrawal of the request is actually a conclusion on terminating the procedure; and second, they are not obliged to know the Law on General Administrative Procedure that secures their right to appeal such conclusions.

The last, fourth paragraph of Article 17 stipulates the procedure for rejecting requests. Namely, when the request does not contain one of its essential elements, disabling the information-holder to initiate the procedure, the information-holder can reject the request by means of a decision. This means that the information-holder will not initiate a procedure on the request, without going into the matter of the issue at hand, but simply rejects it from the very beginning on formal grounds. This type of action is part of the general administrative procedure and comprises the right and the obligation of information-holders, but in this case we are talking about rejecting a request as the title specifies. These two actions are formally and essentially different, therefore the legal text needs to be amended.

7. Forwarding Requests

Article 18

1. If the information holder having received an information request does not dispose with the information requested, it shall, immediately, and within ten days following its receipt of the request at latest, be obliged to forward this request to the information holder that, according to the contents of the request in question, is considered to be the holder of the information requested, and shall inform the requester accordingly.

1. The prescribed time period to provide information shall commence from the day the request mentioned in paragraph (1) hereunder is received by the information holder to whom such request has been forwarded.

Article 18 from the Freedom of Information Law provides for the implementation of the principle on assisting uninformed par-ties anticipated in Article 18 of the Law on General Administrative

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Procedure: “the body leading the procedure shall address the ig-norance or lack of knowledge of the party and other persons par-ticipating in the procedure for the purpose of preventing violations of their rights stipulated by law.” Therefore, if the party’s request is directed to an inappropriate body, i.e., the body that does not dispose of the requested information, the request should be for-warded to the relevant information-holder within 10 days and the information-requester informed.

The next paragraph stipulates the deadline for obtaining the information requested starting from the day of submission of the forwarded request to the information-holder, which-of course-is in favour of the interest of the requester.

Article 19

The procedure following a request to access information of public character shall be maintained by the official mentioned in Article 8 of the present Law.

Article 19 stipulates the obligation of the information officer in terms of implementing the procedure on free access to public information. In this manner, the competencies of appointed person/s to implement the procedure are stipulated, hence facilitating the process for the requester, as he/she is informed in advance regarding the person responsible for his/her request. Just as a reminder, Article 8 of this law stipulates the obligation of all information-holders to appoint information officers and appropriately inform the public.

1. Actions upon the Request’s Submission

Article 20

1. If the information holder positively responds to a request, it shall compile a report thereon.

1. If the information holder decides to fully or partially reject a request, it shall adopt an appropriate decision thereto.

1. In cases mentioned in paragraph (2) hereunder, the decision shall contain an elaboration of the reasons due to which the request in question has been rejected.

1. If the information holder fails to enable the requester access to information within the time period determined in Article 21 of the present Law, and if it fails to provide the requester with the decision mentioned in paragraph

1. hereunder, the request shall be considered rejected, after which a relevant complaint may be filed.

Essential provisions of the Freedom of Information Law are contained in the articles of chapters 8 and 9 entitled as “Actions upon the submission of the request” and “Prolonging the dead­ line for submitting requested information” (Article 20-22). Unfo­ rtunately, these provisions, although very significant in terms of exercising the right to free access to public information, are just confusing the citizens (even legal experts) when requesting information. Furthermore, these provisions are in conflict with the provisions from the Law on General Administrative Procedure as lex generalis, particularly in terms of narrowing and limiting the rights of the parties vis-à-vis the competent authorities leading the procedure in line with the Law on General Administrative Procedure.

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Article 20, Paragraph 1 stipulates that a positive response to the request - meaning its acceptance and realization - should be recorded by the information-holder.

The second paragraph stipulates the opposite case when the request is partially or fully rejected. In such cases, information-holders adopt decisions on request’s rejection.

The third paragraph contains a provision that has already been stipulated by the Law on General Administrative Procedure concerning the form of the decision referred to in the previous paragraph. Namely, the information-holder is obliged to pro­ vide explanation for partial or full rejection of the request. Although not explicitly stipulated in the Article, undoubtedly the information requester is entitled to an appeal in case his/her request is rejected. The appeal is dealt by a second instance body competent to monitor compliance of the acts (decisions) adopted by information-holders, which in this case is the Commission for Protecting the Right to Free Access to Public Information. This right of the parties has also been stipulated by the Law on General Administrative Procedure and presented in detail under Article 28 of this law.

The fourth paragraph stipulates one of the most important instances in the administrative procedure, which is, unfortunately, often used by public bodies and institutions - the so-called “admini­ strative silence”. The legal presumption is that the party’s request is deemed rejected if within the legally stipulated deadline (which according to the Law on General Administrative Procedure is 30 days and 60 days for more complicated matters) the competent authority does not respond to the request, i.e., does not issue any decision. In such cases - although no physical acts are issued by competent authorities - it is deemed that the party has received a negative decision. This is quite important as after the expiry of the deadline, the party is entitled to submit an appeal to the second instance body. This legal theory, as well as he positive legal institute “administrative silence” are incorporated in Article 20, Paragraph 4 of the Freedom of Information Law: “Provided the information-

holder does not enable the information requester access to the requested information within the deadline stipulated in Article 21 of this law, and the information-holder does not submit to the information requester the decision stipulated in paragraph (2) of this Article, the request shall be deemed rejected, upon which an appeal can be submitted.”

Article 21

1. The information holder shall be bound to answer the requester’s request immediately, or within 30 days following the date of information holder’s receipt of such request at latest.

1. The information holder shall provide the information in the form requested, unless the information requested already exists in a pre-determined form and is available to the public, and unless it is more desirable that the information be issued in a form other than the requested one; in such cases, the information holder shall justify its reasons for such information issuing.

The deadline for acting on the received free access to informa­ tion requests is stipulated in Article 21, Paragraph 1 of the Freedom of Information Law, and it is in line with the general deadlines regulated in the Law on General Administrative Procedure - 30 days. Therefore, the administrative silence referred to in the previous Article is 30 days as well, and once this deadline expires, the information requester is entitled to an appeal provided he/ she was not presented with any decision. Despite this right of the requester - which is not explicitly stipulated but stems from the Law on General Administrative Procedure - Article 44 of this Law stipulates a fine in the amount of 20,000 to 50,000 MKD for the information officer provided he/she does not provide the requested information within the legally stipulate deadline (30 days) without reasonable grounds.

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Article 21, Paragraph 2 stipulates the manner of delivering the requested information once the request has been accepted. It also stipulates that the information will provided in the form requested by the information requester. Derogations from this rule are also anticipated, those being the following: if the requested information already exists in a pre-determined form and is publicly available; in cases when it is more appropriate for the requested information to be given in a form different than the requested. Cases falling under the latter are not specifically determined, as it is impossible to list all possible cases. Nevertheless, this is a matter of finding forms and means for providing information to requesters by information-holders in a simpler, more efficient and more cost-effective way than the one indicated in the request. For example, if the requester asks for photocopies of particular acts issued by the authority/organization, and they already exist in electronic form, the authority may decide to send the acts in electronic form, avoiding the photocopying cost, etc.

1. Prolonging the deadline for providing the requested information

Article 22

1. If the information holder should need a time period longer than the one prescribed in Article 21 of the present Law to enable partial access to certain information, in line with Article 7 of the present Law, or due to the large scope of the document requested, it may extend the time period needed, yet the time period for issuing information may not, as a whole, exceed the period of 40 days following the date of receipt of an information request.

1. The information holder shall be bound to inform the requester in written form on the extension of the time period mentioned in paragraph (1) hereunder, as well as

on the justification of the reasons for the extension, which must be done three days at latest prior to the expiring of the time period set out in Article 21 of the present Law.

1. The information requester shall have the right to initiate a complaint in front of the Commission for Protection of the Right to Free Access to Information of Public Character within eight days, should the information holder fail to act within the time period mentioned in paragraph (1) hereunder.

Article 6, Paragraph 1 of the Freedom of Information Law lists information at the disposal of the information-holder for which access can be denied. However, Article 7 of the Law mitigates the previous article by anticipating that if the information referred to in Article 6, Paragraph 1 can be separated from the document for which free access to information request was submitted, the information-holder is obliged to do that, i.e., to separate the information for which access cannot be approved, and then provide insight in the document for the requester. The cases for which additional time and effort on the part of information-holders is required, including extensive documents, Article 22, Paragraph 1 of the Law anticipates the possibility for the information-holder to delay the deadline of 30 days up to 40 days from the receipt of the request. Hence, the deadline for enabling access to requested information can be prolonged by the information-holder for up to 40 day, but only if it is a matter of partial access to information in compliance with Article 7 or due to the extensiveness of the requested document. In all other cases, the deadline for enabling access to information by the information holder is 30 days.

Article 22, Paragraph 2 stipulates the obligation of the information-holder in case of prolonging the deadline referred to in the previous paragraph to justify to the information requester the reasons for the delay within three days prior to the expiration of the legally stipulated deadline of 30 days. This practically means that as soon as the information-holder to whom the request for a document has been submitted and if this document contains restricted information that needs to be separated as access has

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been denied, or if the request is for an extensive document, determines that a period longer than 30 days would be required to act upon such a request, the information-holder is obliged to immediately, or by the 27th day from the receipt of the request to inform the information requester that access will be provided later, i.e., by the end of the 40th day from the request’s receipt. If such notice is not submitted to the requester three days prior to the expiration of the deadline, after the 30th day from the request’s receipt it shall be deemed as administrative silence.

Most illogical and confusing is the provision contained in Article 22, Paragraph 3. The legislator has determined the deadline for submitting appeals in case of administrative silence, which is completely opposite to the essence of this legal institute. Namely, in terms of administrative silence, one thing is indisputable - an appeal can be submitted earlier, but never after the deadline! What does this mean in this specific case? If the information-holder informs the requester that it needs to prolong the deadline to enable partial access - which in compliance with Paragraph 2 of this Article is 40 days - and does not provide the requester with an answer after the expiration of the 40 days, i.e., does not provide access to the requested information, that shall be deemed as administrative silence and the requester has the right to appeal. The deadline for submitting an appeal starts from the expiration of the 40th day (the prolonged deadline for the information-holder to act), but does not end. The party, i.e., the information requester can submit an appeal to the second-instance Commission for as long as he/she needs the requested information and believes his/ her right to free access has been violated. This legal presumption is stipulated in Article 221 of the Law on General Administrative Procedure, where the deadline for the submission of an appeal is not stipulated at all. On the contrary, Article 221, Paragraph 3 of the Law on General Administrative Procedure anticipates the obligation of the competent authority to inform the party in writing on the reasons for not adopting a decision within 8 days from the expiration of legally stipulated deadline. As soon as this additional deadline of 8 days expires (in this case after the expiration of the 48 days of the request’s receipt, or 38 days for requests not

referred to in Article 6, Paragraph 1 and for extensive documents), and the information holder has not submitted an explanation in writing, administrative silence takes place. From this moment on, and without any time limits, the requester can submit an appeal to the Commission for Protecting the Right to Free Access to Public Information. Unfortunately, the Freedom of Information Law has introduced a novelty clashing with the general administrative procedure system by anticipating a deadline of only 8 days within which requesters who have not received any answer/decision from competent authorities can submit an appeal. Experts have taken a very firm stand since they believe that Article 22, Paragraph 3 of this Law should be abolished when amending the Law since it only burdens the legal text, complicates and bureaucratizes citizens’ procedures in front of information-holders and their supervisory body.

10. Answered requests

Article 23

The information holder shall be bound to inform the information requester regarding the request for access to information, if the former has already responded positively to an identical or a similar request from the same requester, within six months prior to the date of such request receipt.

Article 23 regulates the issue referred to as res judicata in the legal theory. This means that if a person has already been given a positive answer to access particular information, and within a period of six months submits an access to information request for the same information and to the same information-holder, the requester will be informed that his/her request has already been positively answered.

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11. Respond to requested information

Article 24

1. If the information holder positively responds to a request, it shall immediately enable the requester to become acquainted with the contents of the information requested, in particular by means of insight, transcript, photocopy, or electronic records.

1. If the requester demands that the information be provided to it for insight, the information holder shall be bound to enable such insight by providing to the requester sufficient time to become acquainted with the contents of the information in question.

1. If, as a result of the information provided a request for additional information related to the documents owned by the information holder arises, in line with the Articles 15 and 16 of the present Law, together with the already provided answer the requester submits new request.

1. Should the requester consider that the information it has become acquainted with is not the information it has stated in its request, it may request the information holder to enable it to become acquainted with the information it originally mentioned in its request, within ten days at latest following the receipt of the repeated request on the part of the information holder.

Article 24 regulates the manner of responding to the requested information.

Article 24, Paragraph 1 says that if a request is positively answered, the requester shall be immediately enabled to see the content of information requested. Although not strictly mentioned, this solution is conveyed to the party orally, in line with Article 216 of the Law on General Administrative Procedure. Learning the

content of the information can take place by means of enabling insight, transcript, photocopy or electronic record.

The second paragraph states an obligation for the information-holder, i.e. information officer, to enable requester enough time for insight and to get acquainted with its content.

The third paragraph regulates the case of requesting additional information, after receiving initially requested information, related to the same documents of the information-holder. For accessing additional information the law foresees submitting new request and refers to Articles 15 and 16, although it would have been better, in terms of efficiency and urgency, for this provision to refer to Article 13 which regulates oral requests. If the information-holder has all the necessary elements from the party, and while learning the content of the information the party needs to access additional information, it is logical to submit the next request orally in a less formalised procedure.

The fourth paragraph regulates a new case which can be created during the procedure of accessing public information. Namely, a situation where the requester gets information s/he did not requested, i.e. case where requester by accident or intentionally was served another information and not the one listed on the request. In this case, the requester submits a new request and the information-holder is obliged to act within 10 days of receiving the new request. This time the deadline for acting is reduced from 30 to 10 days, as this is a repeated request. Such shortening of the deadline has another consequence - administrative silence starts earlier. In these cases administrative silence is constituted if within 10 days the information-holder has not replied at all to the request of the party concerned.

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1. Language in which request is submitted

Article 25

The requester shall submit its request to the information hold­ er in the Macedonian language and its Cyrillic alphabet; the re­ quester speaking an official language other than the Macedonian language and alphabet may submit its request also in the official language and alphabet being used in accordance with the law.

Article 25 of this Law is the actual use, even repetition of Arti-cle 19 of the Law on General Administrative Procedure which regu-lates, in principle, the use of language and alphabet in administra-tive procedure.

13. Request denial and notification

Article 26

1. The information holder may fully or partially reject a request if it finds that the information requested represents information mentioned in Article 6, paragraph (1), bearing in mind also Article 6, paragraph (3) of the present Law.

1. If the request relates to information not disposed by the information holder, or if the information requested has already been published in accordance with Articles 18 and 23 of the present Law, the requester shall be notified thereon in written form.

Article 26, Paragraph 1 lists the cases for which access to information can be denied in line with Article 6, Paragraph 1. At the same time the importance of Article 6, Paragraph 3 is stressed

since this article should be considered when the authority quotes Article 6, Paragraph 1. Information-holders are obliged to publish the information if the information by its essence is included in Article 6, Paragraph 1 if that would imply protection of public interest. Otherwise, the request is fully or partially denied, in line with Article 26, Paragraph 1.

The second paragraph instead of denying the request, foresees notification to the party on its request. If the authority to which the request is submitted does not have such information at disposal, the requester should be notified. In this case, the authority will forward the request to the actual holder of the information within 10 days (Article 18) and notify the requested thereof. In case of already delivered information to the same requester prior to the expiry of six months (Article 23), the information-holder only notifies the requester that the request has been previously positively responded to. It seems understandable for cases listed under Articles 18 and 23, for the requester to receive written notification instead of a decision. The appropriateness of the provision included in this third paragraph under which the requester is notified in writing if the request is about information not available to the holder is discussable. We fear that such notifications will happen even if the authority has requested available information, and the officer may send written notifications to requesters out of various reasons such as: ignorance, poor performance, fear, unpreparedness etc. In case this happens, the party (requester of information) is denied the right to legal protection, as one cannot file a complaint or suit against notification. Legal remedies are used only against individual administrative acts - decisions.

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14. Right to legal protection

Article 27

Each requester having submitted a written request for access to information shall be entitled to legal protection in accordance with the present Law.

Article 27 defines foreign ID for taking part in legal remedy procedure only for requesters who have submitted written requests to access information. This is understandable since our system of administrative procedure is not familiar with the actio popularis institute.

15. Appeal procedure

Article 28

1. The requester shall have the right to initiate a complaint in front of the Commission for Protection of the Right to Free Access to Information of Public Character, against the decision in which the information holder has rejected its request, within 15 days following the date of the requester’s receipt of the relevant decision.

1. The requester shall have the right to submit complaint to the Commission for Protection of the Right to Free Access to Information of Public Character, in case the information holder has failed to act in accordance with Article 20, paragraph (4), Article 24, paragraph (4), and Article 26, paragraph (1) of the present Law, within eight days following the date of its receipt of the relevant act at latest.

1. The Commission for Protection of the Right to Free Access to Information of Public Character shall decide upon the requester’s complaint within 15 days following the date of complaint receipt.

1. The appeal procedure mentioned in paragraph (2) hereunder shall be maintained in accordance with the provisions contained in the Law on the General Administrative Procedure.

Article 28 titled “Appeal procedure” covers deadlines and authorities competent for second instance procedure. Also, Article 28 serves as reference to the Law on General Administrative Procedure. The rules regulating deadlines for action, constituting derogations from the Law on General Administrative Procedure however, are completely opposite to the general rules of the administrative procedure system and not in favour of citizens as information requesters. This statement is most obvious in Article 28, Paragraph 2.

Paragraph 1 specifies the general provision on the deadline for submitting a complaint against first instance decisions, which is 15 days in this case as well. It refers to the information-holder decision denying request to the party. The term starts on the day of receiving the decision, while the competent authority to which the complaint is submitted to is the Commission for protection of the right to free access to public information.

Our most serious remarks refers to Article 28, Paragraph 2, introducing unclear and completely new and inapplicable ru­ le in our legal system for limiting deadline for submitting com­ plaint in case of administrative silence. This was discussed earlier, in the comment on Article 22, but Article 28 Paragraph 2 imposes a deadline of eight days from the moment of silence of administration foreseen for all legal cases stipulated by Law: information-holder not responding to the request after the legally stipulated deadline of 30 days (Article 20, Paragraph 4); information-holder not responding to the additional request to have an insight into another information and not the one provided

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to the requester (Article 24, Paragraph 4). Why are we so critical to this legal solution? The reason is very simple: if a citizen who has submitted an information request is not served with an answer by the competent authority holding this information, the citizen/ requester (instead of the competent authority) has to count how many days have passed. Then, s/he has to be careful, and after 30 days (i.e. 10 days for additional requests) s/he must not miss the eight days available for submitting a complaint on the bad behaviour (not responding implies denying) of the competent authority/information-holder. After those eight days, the citizen is left without legal protection. This, mildly put, strange decision within the Freedom of Information Law seems like encouraging carelessness and not serious work of public authorities and organizations with public authority, which in most cases will remain not sanctioned. It seems like legalizing non-performance, or to be illustrative and ironic, the Law may sound as recommendations to public authorities and organizations with public authority of the following type: “Try (if you want) to provide the information requested within 30 days (10 days in case of additional information), if you fail or do not want to do it, be careful for a few days because s/he can complain, but only within eight (8) days after your deadline expires. If s/he has forgotten or did not know at all - you have made it. The information remains “protected”, no accessing it, and you are not blamed, nobody can do anything any more”. This intention of the legislator cannot be understood. The Law on General Administrative Procedure does not foresee a deadline for submitting complaints against administrative silence, and there are several reasons for that: first, one takes into consideration the possibility that competent authority really needs more time then stipulated to complete the initiated case, and it is up to the will of the party whether s/he will wait for a certain period or will decide immediately to file a complaint; second, the officials performance is influenced by the awareness that at any time a complaint can be filed; third, the party does not have any obligation to count days from filing requests as to not miss the deadline for filing complaints, and thus be punished for poor performance of the authorities. There are many cases of the requester objectively not being able to file complaint within those

eight (8) days stipulated by the Freedom of Information Law: s/he is out of the country, hospitalized etc. In such case, according to the Law on General Administrative Procedure, the requester has right to return to the previous situation or restitutio in integrum, legal instrument often used in administrative procedure when due to justified reasons a deadline is missed by the party concerned. But, is it really necessary to formalize and complicate procedure whose end purpose is 30-minute computer work and reading certain electronic or hard copy records? Complicating things like this will clearly lead citizens to “manage” using other “more simple” ways. In a small country as ours it is not so difficult to find acquaintances, friends or relatives who can provide insight to anyone in almost any document in one day only, and all this to avoid the above labyrinth of rules. Therefore, the law needs to be simpler, easily applicable and understandable to ordinary citizens. These are the reasons we believe that there is no place in this Law, inter alia, for the provision contained in Article 28, Paragraph 2 referring to the eight (8) days deadline for filing complaints in the cases listed in Article 20, Paragraph 4 and Article 24, Paragraph 4. This deadline is foreseen also for the cases referred to in Article 26, Paragraph 1, but it constitutes a completely different situation. Namely, if request is denied because the information-holder believes it is confidential information falling under Article 6 Paragraph 1 and public interest in that case is not predominant (Article 6 Paragraph 3), the requester has the right to appeal within 8 days. The essence of this solution is completely different and produces different legal consequences than the previous two, hence it is not clear what are the reasons for putting them under the same provision - Article 28 Paragraph 2. If an information-holder finds that access is not allowed, there is a decision denying the request. Requester has right to appeal within 15 days shorter deadline then the general one. This solution is welcomed since it is expected if the party receives a negative reply, and is not satisfied with it, s/he can take more urgent measures. This also shortens the second instance procedure and accelerates the entire procedure.

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Article 28 Paragraph 3 foresees shorter deadline also for the Commission for protection of the right to free access to public information acting when deciding upon requester’s complaint. The information-holder as first instance authority has defined a deadline of 30 days to act, with the exception of 40 days, and the second instance authority, i.e. the Commission for protection of the right to free access to public information should finalize the appeal procedure within 15 days. For this type of procedures for exercising a right, which usually implies exercising another right in front of another public body (for example, insight and transcript of document whose content can later constitute grounds for complaint to certain administrative authority or court suit etc.) shorter deadlines, promptness, urgency and efficiency are needed. If not, the essence of the right - access to information is lost, and by its nature it should be accessible to the wider public. Defining deadlines for second instance authority action - in this case it is the Commission for protection of the right to free access to public information - is needed to be able to determine the moment when the plaintiff has the right to initiate an administrative dispute in the competent court. In case of silence of second instance authority, i.e. not replying with the legally stipulated deadline, the party should remind once more the authority to decide upon its request. The authority should do that within an additional 7 (seven) days after receiving the submission. If not, the party has the right to initiate an administrative dispute. If the Commission for protection of the right to free access to public information does not decide upon complaint within 15 days, and after seven (7) additional days after the requester’s notice, this constitutes silence of second instance authority under the Law on Administrative Dispute, and from that moment the requester has the right to file an administrative suit. Article 26 Paragraph 1 of the 1977 Law on Administrative Dispute states: “If second instance authority has not decided upon party’s complaint against first instance decision within 60 days or shorter deadline stipulated by special regulation, and in the additional seven (7) days after repeated request, the party may initiate administrative dispute as if the complaint was rejected”. This provision is completely included in Article 22 Paragraph 1 of the new Law on Administrative Dispute from 2006 and shall enter

into force in 2007. There is no dilemma that the suit in this case can only be early, not late, because the Law on Administrative Dispute, following the legal system of administrative procedure incorporated into the Law on General Administrative Procedure, does not foresee any deadline for initiating dispute due to silence of administration. What is strange here is the fact that the Freedom of Information Act, in this case, has not foreseen deadline for filing a suit against silence of the second instance authority. Although the legislator is inconsistent in the provisions, this solution is better compared to the one on the complaint for silence of administration. It is necessary to mention that in the time of writing this comment the Supreme Court of the Republic of Macedonia has jurisdiction over administrative disputes, which is in line with the old (currently in force) Law on Administrative Dispute. Establishing the first specialized Administrative Court of the Republic of Macedonia is expected soon. Once the new Law on Administrative Dispute enters into force this court will take the jurisdiction of the Supreme Court in that domain (July 2007).

Paragraph 4 is reference to the Law on General Administrative Procedure in respect of conducting second instance procedure, which is initiated by filing a complaint within 8 days. Those were cases of silence of administration and denying access to confi­ dential information. Law on General Administrative Procedure is applicable to all cases and situations for which no specific pro­ visions are stipulated by a particular law, hence Paragraph 4 does not have any special importance, i.e. even without strictly stating it is understandable and clear that for all issues not regulated by this Law, the Law on General Administrative Procedure is applied. If in future, Article 29, Paragraph 2 is amended of the Freedom of Information Law, Paragraph 4 shall also be inapplicable.

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1. COSTS RELATED TO OBTAINING INFORMATION

Article 29

1. Insight to information requested shall be provided free of charge.

1. For the obtained transcript, photocopy or electronic records, the information requester shall pay a fee to the amount of material costs to be covered.

1. The Government of the Republic of Macedonia shall, upon proposal from the Ministry of Finance, adopt an act specifying the reimbursement of material costs of information providing by information holders.

1. The information holder shall publish the amount of the fee mentioned in paragraph (3) hereunder in an appropriate manner (in the official bulletin of the information holder, on its website, on an information board, etc.), and shall make this amount known to any requester before it submits its request.

1. Should the request relate to information of larger scope, the information holder may ask the requester to in advance pay the fee to cover the costs of information obtaining.

Article 29 regulates the issue of costs in the procedure of accessing public information.

Contemporary and necessary provision for consistent implemen­ tation of the Law is contained in Article 29 Paragraph 1: “Insight into requested information is free-of-charge”. This is the only way one can realistically expect for the Freedom of Information Law to be practiced by all citizens, as possible fee for this service will prevent the vast majority of the public to exercise this right, which then would become a luxury. Unfortunately, the working practice of some information-holders is bluntly violating legal provisions. Namely, particular authorities, mainly public enterprises, were charging information requestors lump sums not stipulated by law for their insight into information. Due to such acting of information-holders, there is a need for penal provisions for violations done by official persons or responsible persons who charge fees.

Paragraph 2 stipulates that requester pays only the costs in­ curred for the photocopy, transcript or electronic record s/he obtained.

Paragraph 3 stipulates that the Government of the Republic of Macedonia, upon the proposal of the Ministry of Finance, is obliged to adopt an act establishing the compensation to information-holders for the costs incurred for providing the information. At the time of writing this Comment such an act was not adopted. In spite of that, almost all authorities and organizations (with rare exceptions) charge different fees enormously varying from one to another. It is our duty to point out that these actions are illegal; until the Government adopts the act information-holders are not allowed to charge any fees, meaning that if such an act does not exist, a legally regulated fee cannot be charged. This is an additional way to exercise pressure on the Ministry of Finance to draft the act and submit it for adoption on Government session.

Paragraph 4 foresees obligation for each information-holder, once the fee is defined. They have to publish the fee appropriately: in their official bulletin, on the website, information board etc.

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Information-holders are obliged to inform the requester about the fee before they submit the request.

If the request refers to more extensive information, in line with Paragraph 5, the information-holder can ask the requester to pay in advance for the costs for obtaining the information.

VI.   COMMISSION FOR PROTECTION OF THE RIGHT TO FREE ACCESS TO

PUBLIC INFORMATION

1. The Statute of the Commission

Article 30

1. The Commission for Protection of the Right to Free Access to Information of Public Character (hereinafter referred to as “the Commission”) shall be independent in its work and in its adoption of decisions within its competencies determined by the present Law.

1. The funds for the operation of the Commission shall be provided by the Budget of the Republic of Macedonia. The seat of the Commission is in Skopje. The Commission reports to the Parliament of the Republic of Macedonia and submits annual report for its work.

The sixth chapter of the Law is dedicated to the Commission for protection of the right to free access to information. This is also the title of this part. First thing that comes to mind when reading the Law, and even more to a legal analyst, is the analysis of the

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status and position of this Commission. What does it represent? What type of authority is it? Briefly, how is this new body in the Macedonian legal and political system defined? Unfortunately, the Freedom of Information Law does not answer any of the above questions.

Article 30 Paragraph 1 states that the Commission for protection of the right to free access to information is independent in its work and in adopting decisions under its jurisdiction. It states independence, but does not state what kind of institution

• Is it a legal person? Can it act independently in the legal area? Is it a state authority, independent public body, administrative organization, regulatory body or what?!

The Commission’s independence is confirmed in Paragraph

1. The Commission is a parliamentary institution, considering the fact that the Commission reports to the Parliament of the Republic of Macedonia. The seat of the Commission is in Skopje, and funds for its operation are provided from the Budget of the Republic of Macedonia.

1. Composition, appointment and dismissal of the Commission

Article 31

1. The Commission is consisted of five members, one of them is president and one is vice-president. The term of office of the members is five years with the right to re-appointment. The president and the vice-president perform their functions professionally.

1. Upon proposal from the Government of the Republic of Macedonia, the president, vice-president and the member of the Commission representing the nongovernmental

sector shall be appointed and dismissed by the Parliament of the Republic of Macedonia, for a five-year period, with the right to re-appointment.

1. Two members of the Commission from among the Com­ m­ssion’s expert service shall, upon proposal from the Government of the Republic of Macedonia, be appointed and dismissed by the Parliament of the Republic of Mace­ donia, for a five-year period and with the right to be re-elected.

1. The president of the Commission shall represent the Commission and shall govern its work.

1. The positions of the Commission president and vice-pre­ sident, as well as the Commission member representing the nongovernmental sector shall be open for appointment to any person being citizen of the Republic of Macedonia, being respected and distinguished in the fields of informa­ tion and access to information of public character.

1. During their mandates, the Commission president, vice-president and members may not perform duties within political parties’ bodies.

1. The Parliament of the Republic of Macedonia shall dis­ miss the Commission president, vice-president or mem­ ber prior to the expiration of their mandates, in cases of a proposal from the Government of the Republic of Mace­ donia, upon personal request from these persons, in case of these persons’ illness which will prevent them from performing their duties, or when such persons shall act contrary to the provisions of the present Law.

1. If under paragraph (7) of this Article the position of the Commission member or its deputy ceases, prior to the expiration of their term of office, the Parliament of the Republic of Macedonia, upon proposal from the Gover­ nment of the Republic of Macedonia, shall appoint new Commission member with a new term of office.

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Article 31 Paragraph 1 foresees that the Commission will be composed of five members, of who one is the President and a Vice-President. Their mandate is five (5) years with the right to be re-elected. The position of the President and the Vice-President are professional, meaning they have to be employed in the Commission.

Articles 2 and 3 identically regulate the appointment and dismissal of all five members of the Commission. Therefore, it is not clear why this needs to be put in a separate paragraph, and why make a distinction between the President and Vice-President and the other members of the Commission in respect of appointment and dismissal and their mandate since they are all identical and do not differ in anything. The President, Vice-President and the members of the Commission, one of which is representative of non-governmental sector and the other two are the expert service, are appointed and dismissed by the Parliament of the Republic of Macedonia, upon the proposal of the Government. Their term is five years with the right to be reelected. We believe that this provision is not in line with Article 30 of the Law that looks into the issue of independence of the Commission. Namely, the intention to establish independent bodies in the Republic of Macedonia - not subjected to political party influence - can be achieved only by removing them from patronage of the executive power. If a law foresees independent operation of an institution that will control, above all, the authorities and organizations of public administration, which is part of the executive power, and the next Article foresees for the members of the commission to be proposed by the Government, one can conclude with certainty that the independence of such an institution will be questionable. Therefore, a more appropriate, transparent and democratic procedure is when the appointment of members of such bodies

• the intention being independence - is carried out based on precisely prescribed criteria and by opening it for interested persons meeting the legal requirements to apply on an open competition announced by the Parliament. Another issue deserves special observation: the Government proposes the appointment and dismissal of the representative from the non-governmental sector! In lexicology this is called oxymoron, denying the very

essence of the non-governmental sector. Non-government is because government should not interfere and exercise pressure in the work of this sector. Therefore, the provision under which even this representative should be “selected” by the Government is terrifying.

The competences of the President of the Commission - distinguishing this function from the other Commission members

• are listed in Article 4: the Presidents represents, acts for and manages the work of the Commission.

An unsuccessful attempt to define the criteria for appointing the President of the Commission, the Vice-President and the NGO representative is made with Paragraph 5: “to be a citizen of the Republic of Macedonia, reputable and distinguished in the field of information and freedom of information”. These criteria look more like a general wish list instead of specific requirements that a person has to meet to become Commission member. Except for the requirement for Macedonian citizenship, reputation is completely irrelevant to becoming Commission member; and, it is difficult to establish whether Government members themselves are competent to estimate the reputation of the person it is proposing for Commission member. How is the Government going to do that (what are the means and mechanisms to be used), even more the Parliament when appointing him/her? The requirement of being distinguished in the field of information and freedom of information is just a declaration, as freedom of information is a completely new issue for Macedonian society. Until a few moths ago, no legal act regulated this issue at all. Finally, it remains unclear why requirements are set (irrespective of how bad they are) for the President, Vice-President and NGO-member only, and not for the two expert members. Does that mean that no requirements are necessary for these two members such as type and level of education, experience, training, etc? Requirements of this kind should certainly be prescribed for each Commission member equally and there is no need to discriminate the members.

Paragraph 6 foresees de-politicization and non-partisan affilia­ tion of the Commission for protection of the right to free access to

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information, since no Commission member is allowed to perform any duty in a political party bodies during their term.

Paragraph 7 sets conditions for early dismissal of Commission members, proposed by the Government and dismissed by the Parliament as competent body to effectuate the proposal. These conditions are: if the member him/herself requires that in case of illness due to which the person will not be able to perform, or if the member acts against the provisions of this law. The last condition is too broadly formulated, leaving wide space for possible manipulation, and creating a possibility for each new political power to use dismissal to get rid of the “ignorant” Commission members appointed by the previous political establishment.

In case of early dismissal of a Commission member, Article 8 provides for the Parliament to appoint a new person with a new term, on the proposal of the Government. This provision lacks a deadline in which the Parliament will appoint the new member, which is quite important. If the new appointment is postponed, it will be difficult for the Commission to decide with an even number of members, and impossible to reach majority vote in case of divided opinions. Also, there is a technical error in this paragraph, because it starts as follows: “If a member of the Commission or his/ hers deputy ceases the function…” but the Law does not stipulate the appointment of deputies of the Commission members, except for the Vice-President.

3. Competences of the Commission

Article 32

The Commission shall perform the following tasks:

• it shall decide on each complaint against the decision and conclusion whereby an information holder shall reject a request to access information filed by an information requester;

• it shall make sure that provisions of the present Law are implemented;

• it shall compile and publish a list of information holders;

• it shall issue opinions on proposed laws regulating free access to information;

• it shall carry out activities regarding the education of information holders to provide information requesters with information disposed of by them;

• it shall cooperate with information holders regarding the exercising of the right to access information;

• it shall issue proposals regarding the necessary funding for the Commission’s operation in the process of drafting the Budget of the Republic of Macedonia;

• it shall adopt the Book of Rules for its operation;

• it shall draft the annual report on its operation and shall submit it to the Parliament of the Republic of Macedonia;

• it shall perform tasks in the field of international cooperation related with the meeting of Republic of Macedonia’s inter­ national commitments, take part in the implementation of international organizations’ projects, and shall cooperate with bodies from other countries and institutions in the field of free access to information of public character;

• it shall adopt Statute and other acts to determine the manner of its operation and organization; and

• it shall also perform other tasks determined by the present Law.

Article 32 lists the activities of the Commission for Protection of the Right to Free Access to Public Information in the following manner:

• To decide in second instance procedure on appeals against information-holder’s decision and conclusion to reject a request to access information. Article 44 foresees a fine of 20,000 to 50,000 denars for the information-holder who,

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in the course of the appeal procedure, shall not submit a document or prevent insight into the document by the Commission.

• To ensure the implementation of the legal provisions. This competence of the Commission needs to be rephrased and be more precise in line with the new Misdemeanour Law. Namely, the Misdemeanour Law from 2006 stipulates the right of public authorities to detect violations, conduct misdemeanour procedure and impose sanctions and fines and appropriate interim measures with limited duration. This is a new competence for public authorities. They had the authority to initiate misdemeanour procedure for non-compliance even prior to the adoption of the Misdemeanour Law. That is why we believe that for efficient implementation of the provisions, this Law needs to be amended - this provision in particular - so that the Commission will have the authority to sanction the violations stipulated in the penal provisions of the Law.;

• To prepare and publish the list of information-holders;

• To issue opinions on law proposals regulating free access to information. If the status of the Commission was defined as an independent state body and legal person, then it would have been able to initiate legislation, meaning the Commission could draft and propose laws in this field and not only issue opinions on proposals of the Government or the respective ministries;

• To educate and train information-holders to enable access to information in an easier manner;

• To cooperate with information-holders in exercising the right of access to information;

• To propose the funds necessary for its operation when preparing the Budget of the Republic of Macedonia;

• To adopt Rules of procedure;

• To draft annual report for its work and submit it to the Parliament of the Republic of Macedonia;

• To act in international cooperation affairs related to interna­ tional obligations of the Republic of Macedonia in the field of free access to public information;

• To adopt a Statute and other acts related to the work and organization of the Commission such as: Guidelines for work organization, Rulebook on Jobs Classification, Guidelines for salaries and remuneration, Rulebook for disciplinary actions etc.

• To carry out other tasks set by this law and by other laws.

4. Manner of work

Article 33

The Commission shall perform the tasks within its competence on its sessions. The manner of work and decision-making shall be regulated by the Statute for which consent shall be given by the Parliament of the Republic of Macedonia.

Article 33 stipulates that the Commission shall convene sessions for issues under its jurisdiction, and the manner of work and decision-making is regulated by the Statute, which is approved by the Parliament.

5. Expert service

Article 34

The administrative, expert and other administrative and technical tasks of the Commission shall be performed by its expert service that shall be governed by a head of the service who shall be appointed and dismissed by the Commission.

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The expert service performs administrative, technical and other administrative and technical tasks of the Commission. The Head of the service will manage the expert service. S/he shall be appointed and dismissed by the Commission. The act on the basis of which this person will be appointed or dismissed is not mentioned. Is that the Civil Servants Law, the Labour Law, or the Job Classification Rulebook?

6. Judicial protection

Article 35

A suit to initiate an administrative dispute in front of the competent court may be filed against a decision issued by the Commission.

An administrative dispute can be filed against the Commission’s decision, as for any other final administrative act. The Freedom of Information Law does not define the competent court for administrative disputes; most probably because the legislator was not sure which court will have this jurisdiction at the time of adoption of the Law. This question is not precisely answered, and with a good reason since the Administrative Dispute Law which regulates court’s jurisdiction for this type of disputes is going through a very complicated phase recently. Namely, in July 2006, the Administrative Disputes Law was adopted in the Republic of Macedonia. The law stipulates the establishment of an Administrative Court of the Republic of Macedonia as the single competent court on the territory of the entire country to deal with administrative disputes. The final and transitional provisions of the Administrative Dispute Law foresee its entering into force in June 2007. In other words, the old Administrative Dispute Law is still in force, thus administrative disputes are under the jurisdiction of the Supreme Court of the Republic of Macedonia. Hence, the provisions referring to regular and preliminary rulings, legal remedies, types

of judgements and litigation under the old Administrative Dispute Law apply in disputes against Commission’s decisions until 2006, until the new Administrative Disputes Law enters into force.

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VII. INFORMATION TO

THE PUBLIC

ON ACCESS

TO INFORMATION

Article 36

1. Information holders shall inform the public on the manner and conditions of access to information.

1. For the purpose of implementing the provisions contained in the present Law, information holders shall cooperate with the information holders and with the Commission.

According to Article 36, the information-holder is obliged to introduce the public to the terms and conditions for accessing information.

The second paragraph stipulates an obligation for mutual cooperation of information-holders for the purpose of applying the provisions of this Law, including the cooperation between them and the Commission.

VIII. ANNUAL REPORT

Article 37

1. The responsible person within the information holder shall be obliged to draft an annual report regarding the implementation of the present Law, and shall submit this report for the previous year, to the Commission by 31 January of the current year.

1. The report mentioned in paragraph (1) hereunder shall contain, in particular:

• data on officials in charge of information mediation with information holders;

• the number of requests submitted;

• the number of requests having received positive response;

• the number of requests rejected, including a specification of reasons for each rejected request;

• the number of filed complaints and decisions, including a description of each decision and an elaboration of the reasons for any decision made in cases of repeated rejection of providing the information requested;

• the number of initiated administrative disputes against a final decision or in case of no response on the part of the information holder;

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• the number and list of court decisions made in which positive response has been provided to the suit on the part of the requester within the administrative procedure, as well as statement of the reasons on which the decision of the competent court is based.

1. The Commission shall compile a joint report for the implementation of the present Law on the basis of data obtained from reports submitted by information holders and shall, by 31 March of the current year, submit this report referring to the previous year to the Parliament of the Republic of Macedonia.

1. After the Parliament of the Republic of Macedonia have reviewed and adopted the report mentioned in paragraph

2. hereunder, it shall be published in the media (a bulletin, on a website).

In the context of implementing the Freedom of Information Law, the information-holder is obliged to draft an annual report and submit it to the Commission by 31st January. The report is drafted by the responsible person of the information-holder. Article 45 of the Law foresees a fine for non-compliance: “The responsible person of the information-holder who shall not draft an annual report and submit it to the Commission shall be fined with 5,000 to 30,000 denars.”

The elements that the report needs to include are listed in

Paragraph 2:

• Number of requests submitted;

• Number of requests positively resolved;

• Number of requests rejected by listing reasons for each of them;

• Number of complaints filed, and decisions made with a description of the decision and the grounds for the decision made in case of repeated denial of requested information. It is not clear what the complaints mentioned in Paragraph 2,

Line 4 really mean, since they are not explicitly mentioned in the Law as a legal remedy.

• Number of administrative disputes initiated against final decisions or in case of information-holder silence. This pro­ vision deserves comment. In case of information-holder si­ lence, the information requester has the right to appeal to the Commission, not to initiate an administrative dispute. Administrative dispute can be initiated due to silence of the administration, but in this case it would be due to silence of the Commission which is not an information-holder. This is why we believe that the entire provision needs to be rephrased. Current phrasing does not make any sense and is inapplicable.

• Number and list of court decisions where the requesters win the administrative dispute, including the grounds on which the competent court has based its decision.

According to Paragraph 3, the Commission is obliged to prepare a joint report on compliance for the past year, based on the data received from all information-holder reports and to submit it to the Parliament of the Republic of Macedonia not later than 31st March.

According Paragraph 4, the Parliament discusses and adopts the report, which then is published in the media.

Article 38

Any responsibility shall be removed from an employee within the state administration that shall disclose protected information, in case such information be of significance for the disclosure of abuse of power and corruptive behaviour, as well as for the prevention of serious threats to human health and life and the environment.

Article 38 frees civil servants and other public administration employees from the responsibility of revealing protected informa­

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tion if that information was relevant to disclose abuse of official position or corruptive behaviour. That person shall not be held accountable if the information revealed contributed to prevent serious threats to human health and life and endangered the environment. The purpose and essence of this provision are understandable and acceptable. It is not clear however, why only public administration employees are mentioned, and not all others from the public sector, including those in the private sector who disposed with the information referred to in Article 38.

IX. PENAL PROVISIONS

Article 39

A fine of 30,000 to 50,000 denars shall be imposed for an offence to the responsible person i.e. the official with the information holder having failed to provide information of public character in accordance with the provisions of the present Law.

Article 40

A fine of 30,000 to 50,000 denars shall be imposed for an offence to the responsible person i.e. to the official with the information holder having disclosed information contrary to Article 6, paragraph (1) of the present Law, having rejected access to information or provided access to information contrary to the provisions of the present Law, which has caused damage to the requester, the public, or the interest being safeguarded by such information.

Article 41

A fine of 20,000 to 40,000 denars shall be imposed for an offence to the responsible person with the information holder having failed to appoint an official in charge of mediation in the exercising of the right to free access to information (cf. Article 8).

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Article 42

A fine of 20,000 to 50,000 denars shall be imposed for an offence to the responsible person with the information holder having failed to maintain and update records on information disposed by the information holder, and having failed to publish such information in an adequate manner accessible by the requester, in accordance with Article 9 of the present Law.

Article 43

1. A fine of 20,000 to 40,000 denars shall be imposed for an offence to the responsible person with the information holder having failed to provide to requesters premises needed for insight into information requested (cf. Article 11).

1. A fine of 20,000 to 50,000 denars shall be imposed for an offence to the official in charge of information mediation with the information holder having failed to provide requesters with assistance in requesting information in accordance with the present Law (cf. Article 11).

Article 44

1. A fine of 20,000 to 50,000 denars shall be imposed for an offence to the official in charge of information mediation with the information holder having failed, with no just reasons, to mediate the information requested within the time period specified (cf. Article 21).

1. A fine of 20,000 to 50,000 denars shall be imposed for an offence to the person with the information holder that, in a complaint procedure, shall fail to submit the document in question or shall prevent insight to the document in question on the part of the Commission (cf. Article 32).

Article 45

A fine of 5,000 to 30,000 denars shall be imposed for an offence to the responsible person with the information holder failing to draft the annual report on the implementation of the present Law and to submit it to the Commission (cf. Article 37).

No comment on penal provisions shall be presented here, as each penal provision is commented in correlation to the respective article of the Law. The penal provision comments include the fines foreseen.

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1. TRANSITIONAL AND FINAL PROVISIONS

Article 46

The secondary legislation mentioned in Article 1, paragraph (3) of the present Law shall be adopted within three months following the date of entry into force of the present Law.

Article 47

The Government of the Republic of Macedonia shall adopt the act mentioned in Article 29, paragraph (3) of the present Law, within four months following the date of entry into force of the present Law.

Article 48

Information holders shall designate their officials in charge of information mediation, mentioned in Article 8 of the present Law, within four months following the date of entry into force of the present Law.

Article 49

1. The president, vice-president and the members of the Commission shall be appointed within 30 days following the date of entry into force of the present Law.

1. The Information Agency shall cease to operate.

1. The Commission shall take over the Information Agency staff within its Expert Service, within 60 days following the date of entry into force of the present Law.

1. The Commission shall take over from the Information Agency the material, technical, spatial and other conditions necessary for the enactment of the present Law, within 60 days following the date of entry into force of the present Law.

1. The Commission shall adopt relevant secondary legisla­ tion within three months following the date of entry into force of the present Law.

1. In cooperation with the Government of the Republic of Macedonia and the nongovernmental sector, and with the support from international organizations, the Commission shall perform training of persons in charge of the enactment of the present Law, within six months following the date of entry into force of the present Law.

Article 50

The present Law shall enter into force on the eighth day from the date of its being published in “The Official Gazette of the Re­ public of Macedonia”, and shall be enacted as of 1 September, 2006.