Montenegro
DRAFT LAW
ON FREE ACCESS TO INFORMATION OF MONTENEGRO
VERSION OF APRIL 2012
I BASIC PROVISIONS
Subject
Article 1
Right on access to information held by public authorities shall be exercised in manner and according to procedure prescribed by this Law.
Principles and standards
Article 2
Access to information held by public authorities (hereinafter referred to as “access to information”) shall be based on the principles of free access to information, transparency in work of public authorities, the right of the public to know and equality of requests, and it shall be carried out at the level of standards set out in ratified international agreements on human rights and freedoms and in generally recognised rules of international law.
Free access to information
Article 3
Any national or foreign legal and natural entity shall be entitled to access the information, without being obliged to state the reasons or explain the interests for seeking the information.
Transparency of work
Article 4
Access to information shall ensure the transparency of work, foster the efficiency, effectiveness, and accountability, and affirms their integrity and legitimacy of the public authority.
Right of the public to know
Article 5
Access to information shall ensure for the public to be informed and to know information held by the public authority, which are of importance to forming of opinions on the state of society and functioning of authorities, as well as for exercise of democratic control over authorities, and exercise of human rights and freedoms.
Equality of requests
Article 6
Public authorities shall provide any legal or physical entity with the access to information on an equal basis and under equal conditions, unless otherwise stipulated in this Law.
Public interest
Article 7
Access to information is of public interest.
Access to information may be restricted only in purpose of protecting the interests specified in this Law.
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Gender sensitivity
Article 8
The expressions used in this Law for natural persons in the masculine gender shall be considered as including the feminine gender.
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Definition of terms Article 9
The terms and expressions used in this Law shall have the following meaning:
1) public authority shall mean a state authority (legislative, executive, judicial, administrative), local self-government authority, local administration authority, institution, company and any other legal person founded or co-founded by the state or in majority ownership of the state or local self-government, legal person mainly financed from public resources, as well as well as a natural person, entrepreneur or legal person having public responsibilities or managing public funds;
2) information held by public authorities shall mean factual possession of the requested information by the public authority (their own information, as well as information reported by other government agencies or third persons), regardless of the grounds and manner of acquisition;
3) publication of information shall mean making the contents of information available;
4) disclosure of information shall mean the applicant or another individual not employed at the public authority holding the information becoming privy to the contents of information
5) submission date shall be the day when a request or other written brief of a natural or a legal person is received by a public authority;
6) delivery date shall be the day when a decision or another act of a public authority is delivered to an applicant;
7) public official shall mean a person who has such a status under the law governing the prevention of conflict of interest.
II ACCESS TO INFORMATION
Information and access to information
Article 10
Information shall be a document in written, print, video, audio, electronic or any other form, including its copy or part thereof, regardless to content, source (of author), date and time of composing or classification system.
The right on access to information shall encompass the right to ask for and receive information, regardless to purpose and data consisted of.
Access to information guide
Article 11
The public authority shall develop, publish, and regularly update a guide for access to information held by it (hereinafter referred to as “the access to information guide”).
The access to information guide shall contain a catalogue of all types of documents, including public registers and public records, the address and e-mail address for submission of request, contact telephone, information on responsible persons, information on costs of access to information, and other data that are of importance to the exercise of the right of access to information held by the public authority.
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The public authority shall update “The access to information guide” at least once a year, or within 30 days following the change of type of information in its possession and data important for access to information.
Content of “The access to information guide” shall not exclude obligation of the public authority to provide access to information that holds and that is not covered by the Guide.
The public authority shall appoint and authorize a person responsible for access to information.
Proactive access to information
Article 12
The public authority shall publish on its website following information:
1) the access to information guide;
2) public registries and public records
3) programmes and work plans;
4) reports and other documents on work and state of play in areas within their competence;
5) drafts, proposals, and final texts of strategic documents, plans and programmes for their implementation;
6) draft and proposal of laws and other regulations, as well as opinions of experts delivered in relation to drafts and proposals for legislation;
7) single acts and contracts on use of financial resources originating from public revenues and of state-owned property;
8) list of civil servants and state employees with their titles;
9) list of public officials and pay lists for them, as well as list of other incomes related to exercise of public function;
10) Decisions and other single acts that are of importance to rights, duties, and interests of third parties;
11) Information to which the access was granted upon request for more than
three times;
The public authority shall publish the information referred to in paragraph 1 of this Article, depending on the nature and type of information, within 15 days as of the day of which they are created or adopted.
The public authority may publish on its website other information not covered by paragraph 1 of this Article.
When publishing information, the public authority shall protect in an adequate manner such personal data that affect privacy and data that have been classified, in accordance with the law.
Access to information upon request
Article 13
The public authority shall grant the access to information or a part thereof to any physical or legal entity seeking the access to information (hereinafter referred to as “applicant”), that it holds at the time of dealing with the request, except in cases envisaged by this law.
Restriction of access to information
Article 14
The public authority may restrict access to information or a part thereof if it is in the interest of following:
1) protection of privacy from disclosure of personal data envisaged in the law regulating protection of data on individual, except for data relating to following:
- persons exercising public function, data relating to the public function exercise, as well as to incomes, property and conflict of interest of those persons and their relatives covered by the law regulating preventing of conflict of interest;
- resources allocated from the public funds, except those for social security benefits, health care, and protection against unemployment;
2) security, defence, foreign, monetary and economic policy of Montenegro, in accordance with the laws regulating the field of data secrecy, classified with certain level of confidentiality;
3) prevention of investigation and criminal prosecution, in order to protect from disclosure data referring to following:
- to prevent committing the criminal act,
- on reporting criminal act and perpetrator of it,
- on content of actions undertaken in pre-trial and criminal procedure;
- data collected through observation and investigation,
- on secret surveillance measures;
- on protected witness and collaborators of justice;
- efficient conducting of procedure;
4) performing the official duty, in order to protect from disclosure data referring to following:
- planning of inspection control and supervision by the public authority,
- consultations within and between public authorities regarding defining the positions and development of official documents and proposals for resolution of a case,
- work and decision making by collegial bodies;
- bringing and conduct of disciplinary proceedings;
5) protection of private and commercial interest from disclosure of data relating to protection of competition and business secret in relation to intellectual property right
Duration of restriction
Article 15
Restriction of access to information for the purpose of protecting privacy and data on protected witness and collaborator of justice shall last 70 years from the day of production, and at least 20 years following the demise of a person to whom the information relates, except in case that concerned person, or his/her spouse, children, or parents consent to earlier publication of information.
Restrictions of access to information for the purpose of protection of security, defence, foreign, monetary, and economic policies of Montenegro may last not later then until the expiry of the timeframes set by the law governing data secrecy.
Restrictions of access to information for the prevention of investigation and criminal prosecution shall last until the procedure is completed the latest.
Restrictions of access to information for the purpose of performing official duty shall last until the official document is prepared, or proposed solution for the case is defined, minutes of the meeting of collegial body is verified, and disciplinary procedure is completed.
Restrictions of access to information for the purpose of protecting private and commercial interests shall last until the expiry of the timeframes set by the law governing intellectual property rights.
Harm test for disclosure of information
Article 16
Access to information shall be restricted if disclosure of information would significantly jeopardize interests referred to in Article 14 herein, or if there is a possibility that disclosure of information would cause harm to interest that is greater than the interest of the public to know
that information, unless there is prevailing public interest prescribed by the Article 17 of this Law.
The harm test referred to in paragraph 1 of this Article shall not be applied to the exemption defined by the Article 14, paragraph 1, point 1, items 1 and 2 of this Law.
The public authority shall decide upon a request for access to information containing classified data after obtaining a previous consent of the authority that proclaimed information as classified.
In the case referred to in paragraph 3 of this Article, the classifying authority shall, within eight working days as of receiving a request for consent, deliver a corresponding decision to the public authority deciding upon the request for information access.
The harm test shall not be applied to data contained in information that is proclaimed as classified by the foreign state or an international organisation.
Prevailing public interest
Article 17
Prevailing public interest for disclosure of information, or a part thereof, exists when the requested information contains data that evidently refer to following:
1) corruption, non-observance of regulations, unauthorised use of public funds, or abuse of authority in exercising public function;
2) the existence of grounds to believe that a criminal offence has been committed or existence of reasons to challenge a court decision;
3) illegal receiving or spending of funds originating from public revenues;
4) threats to public security;
5) threats to life;
6) threats to public health;
7) threats to the environment;
The public authority shall grant the access to information or part of information referred to in Article 14 herein in cases when there is prevailing public interest for disclosure of information, unless it proves the existence of other prevailing public interest.
III PROCEDURE FOR ACCESS TO INFORMATION
Initiation of procedure
Article 18
Procedure for access to information shall be initiated upon a written or verbal request of an individual seeking access to information.
One request for information may refer to several pieces of information.
The written request for access to information shall be submitted directly to the responsible authority by hand, mail, or e-mail (via fax, e-mail, etc).
The verbal request shall be submitted to the responsible authority directly to the minutes/record.
If the applicant requests the public authority shall issue, or deliver, adequate proof confirming reception of the request for access to information.
Content of the request
Article 19
The request for access to information shall contain:
1) the name of the information or data that allow its identification;
2) the form in which the applicant wishes to access information;
3) Information on the applicant (name, family name and address of a natural person, or name and address of a legal person), and/or his or her attorney, representative or proxy);
The applicant may list in the request other data that are, in his/her opinion, of importance for exercise of the right of access to the requested information.
The public authority may issue or define form/pattern of the request for access to information, but it is obliged to proceed upon the request even if it is not submitted on the prescribed form.
Assisting the applicant
Article 20
The public authority shall assist the applicant, as far as reasonably possible, to access the requested information.
If the request for the information is incomplete or illegible and therefore it cannot be acted upon, the authority shall invite the applicant to correct the deficiencies in the request within 8 days from the date of submission, and give him/her instructions on how to remedy the deficiencies.
In the case of paragraph 2 of this Article, deadline for processing upon request shall begin on the day of submission the corrected request.
If the public authority is not in possession of the requested information, and if knows which authority is competent for processing upon request for access to information, it shall, with no delay, deliver the request to the competent public authority and inform the applicant on undertook actions.
Forms of access to information
Article 21
An applicant shall have the right to choose form of access to requested information by way of following:
1) Direct inspection of original or copy of information in premises of the public authority;
2) the applicant transcribing or scanning the information in the premises of a public authority;
3) delivery of a copy of the information to the applicant by hand, mail or e-mail
Public authority shall grant the access to information in such a form referred to in paragraph 1 herein as might be preferred by the applicant, unless the preference expressed is technically unfeasible.
In purpose of allowing access to information in the form preferred by the applicant, the public authority shall convert, where possible and appropriate, the existing format of information into electronic or analogue form (scanning, copying, etc).
Forms of access to public registries and public records
Article 22
Access to the public registry and public record shall be granted directly and upon the request, with no adopting decision, and by way of inspection of the registries or records in the premises of the public authority.
The public authority shall grant an applicant insight into the public registry or public record within three working days from the day when request is submitted, and it shall prepare official note about it.
Access to information to persons with disabilities
Article 23
Disabled person shall be granted access to information in such a form and format as are fitting to his/her abilities and needs.
Form of access to a part of information
Article 24
If a restriction applies to a part of information, pursuant to the provisions of the Article 14 of this Law, the public authority shall grant access to information by delivering a copy thereof to the applicant, after deleting the part of the information to which the restriction applies.
In the case referred in paragraph 1 of this Article, the part of the information to which the restriction applies shall be marked with a note “information deleted” and a notification of the extent to which the information was deleted (lines, paragraphs, and pages).
Information shall be deleted in a manner that shall not destroy or damage the text, or the content of the information.
Competent public authority
Article 25
The public authority that holds requested information shall be competent for deciding upon the request on access to information.
The public authority, entrepreneur or physical entity that, pursuant to Article 9 point 9 herein, is considered to be public authority due to exercise of the public function or managing public fund is obliged to enable access to information in its possession that are related to the exercise of public function or public fund management.
Access to published information
Article 26
The public authority shall not be obliged to grant access to information that hold via e-mail if that information is published in Montenegro and available on the Internet.
In case referred to in paragraph 1 herein, the public authority shall inform the applicant in writing where and when the requested information was published within three working days as of the day when the request is submitted.
Application of rules of procedure
Article 27
The public authority shall decide upon request for access to information by applying the rules of general administrative procedure, without conducting the hearing, unless otherwise provided in this Law.
Dismissal of request
Article 28
The public authority shall dismiss by way of conclusion a request for access to information in following cases:
1) it does not hold the requested information, and does not know which public authority holds it;
2) the applicant fails to act in accordance with Article 20, paragraph 2 of this Law.
Denying of request
Article 29
The public authority shall deny the request for access to information if:
1) it requires that new information be generated;
2) the applicant was granted access to the identical information within period of the previous six months;
3) There is a reason referred to in Article 14 of this Law to restrict access to the requested information.
Deciding upon request
Article 30
The public authority shall decide on the request for access to information by way of a decision, except in cases defined in Article 22 of this Law, granting access to information or a part thereof, or denying access.
The decision granting access to information or a part thereof shall specify:
1) the form in which the information may be accessed;
2) the time limit to access the information;
3) costs of procedure.
The decision denying the access to information shall contain detailed explanation of reasons for which access to the requested information has been denied.
Deadline for deciding upon request
Article 31
The public authority shall make a decision on the request for access to information and deliver it to the applicant within 15 working days following the adequate request has been submitted
If access to information is requested for the purpose of protecting the life or freedom of an individual, the public authority shall make a decision and deliver it to the applicant within 48 hours as of the hour of submission of the request.
The time limit referred to in paragraph 1 of this Article may be extended for 8 days, provided that:
1) the request refers to exceptionally voluminous information;
2) the request for access to information refers to classified information;
3) tracking the requested information entails search through a large volume of information and therefore disturbs performance of regular activities of the public authority.
In the case referred to in paragraph 3 of this Article, the public authority shall, within three working days after the request has been submitted, inform the applicant in writing of an extension of the time limit in which a decision on the request will be made.
Time limit for execution of decision
Article 32
The public authority shall execute the decision within three working days after the decision has been delivered to the applicant or within three working days after the day when the applicant has submitted a proof of payment of costs of procedure, if such costs have been specified in the decision.
Costs of procedure
Article 33
The fee shall not be paid for the submitting the request for access to information. The applicant shall pay costs of procedure for access to information that relate to
actual costs incurred by the public authority in relation to copying of documents and delivery of information to the applicant, in accordance with the regulation adopted by the Government of Montenegro..
The regulation referred to paragraph 2 herein shall specify special costs for access to information in archives, libraries, and museums that represent archive, library, or museum material.
In case when a disabled person is actual applicant, any public authority shall bear the related procedure costs.
Costs of procedure referred to in paragraph 2 herein shall be paid before the applicant is provided with access to information.
If the applicant fails to submit proof of payment of costs of procedure in the specified amount, the public authority shall not provide him/her with access to the requested information.
Right to a complaint
Article 34
The applicant, or another individual having an interest, may make a complaint against the decision of the public authority on the request for access to information to an independent supervisory authority responsible for protection of personal data and access to information (hereinafter referred to as “the Agency”), and through the authority that has decided upon request in first instance.
Notwithstanding paragraph 1 of this Article, complaint may not be filed against decision denying access to information containing data marked as classified, but it is possible to initiate administrative dispute against adopted decision.
Reasons for complaint
Article 35
A complaint may be lodged against the decision on request for access to information for the violation of rules of procedure, incompletely and incorrectly defined factual state, and misapplication of material law.
Effect of complaint
Article 36
The complaint against a decision granting access to information shall not postpone the execution of the decision.
Activities of the first-instance authority upon the complaint
Article 37
The first-instance authority shall carry out, within its competencies defined by the law regulating general administrative procedure, all activities upon the complaint within three working days following the day when the complaint has been submitted.
Agency proceeding upon the complaint
Article 38
The Agency shall make a decision upon the complaint against a decision on the request for access to information and to deliver it to the complainant within 15 working days as of the day on which the complaint is submitted.
The complaint against a decision to the request for access to information shall be decided upon by the governing body of the Agency (hereinafter referred to as “the Council of the Agency”).
The Council of the Agency shall make a decision in meritum about the complaint.
Competencies of the Agency
Article 39
In addition to the competences set forth in the law governing personal data protection, the Agency shall:
1) perform supervision over the legality of administrative decisions deciding upon requests for access to information and take the measures set forth by the law;
2) manage an information system of access to information;
3) monitor the state of play in the area of access to information;
4) performs inspection surveillance over application of this Law in terms of developing and updating the Access to information Guide, proactive publishing of information, and delivery of acts and data necessary for keeping of information system for access to information;
5) submit requests for opening of misdemeanour proceedings for violations of this Law that relates to developing and updating the Access to information Guide, proactive publishing of information, and delivery of acts and data necessary for keeping of information system for access to information;
6) performs other duties prescribed by this Law.
Powers of the Agency
Article 40
For the purpose of resolving complaints and performing supervision over the legality of decisions made in relation to requests for access to information, the Council of the Agency shall have the right to request following:
1) that the public authority submit to it the complete information to which access is requested, or a part thereof and other information and data that are required for decision making;
2) that the inspection responsible for control of office operations establishes whether the public authority is in possession of the requested information;
The public authority and inspection referred to in paragraph 1, item 2 herein shall, within three working days as of the day on which the request is submitted, deliver the requested information and data to the Council of the Agency.
Information system of the information access
Article 41
For monitoring state of play in area of the access to information, the Agency shall keep an information system of access to information providing a database on following:
1) public authorities;
2) requests for access to information, categorized by applicants, public authorities, types of information and requested forms of access to information;
3) decisions of public authorities made in relation to requests for access to information;
4) complaints against decisions made in relation to requests for access to information, categorized by applicants and authorities;
5) legal suits against decisions made in relation to requests for access to information categorized by applicants/plaintiff and public authority/defendant;
6) court decisions upon legal suits on against decisions on requests for access to information;
7) measures taken against public authorities for failing to act in accordance with this Law;
The ministry competent for public administration affairs shall specify the content and manner of keeping the information system.
Obligation to deliver acts and data
Article 42
Public authorities shall submit to the Agency data about petitions, acts and undertaken measures referred to in Article 41, paragraph 1 of this Law, within 8 working days as of the day when they are submitted, created, or undertaken.
Report on state of play in area of access to information
Article 43
The Agency shall submit, upon request, and at least once a year, to the Parliament of Montenegro a report on the state of play in the area of access to information.
Court protection
Article 44
The applicant and third interested person shall be entitled to court protection, in accordance with the law governing administrative dispute proceedings.
A court shall assess if the public authority properly marked data in requested information as classified, in accordance with the law governing the area of data secrecy.
Procedure of adjudicating a legal action in relation to access to information shall be
urgent.
Protection of employee
Article 45
An employee of a public authority who, in bona fide performance of his/her duties, discloses information containing data on abuse of and irregularities in the performance of a public office or official powers may not be held responsible for a breach of a work duty.
IV SUPERVISION
Inspection supervision
Article 46
Inspection supervision over the implementation of this Law shall perform Ministry responsible for administrative affairs, except in relation to the affairs defined in the Article 39, paragraph 1, point 4 of this Law.
V PENALTY PROVISIONS
Misdemeanours
Article 47
A fine ranging from 500 to 20.000 EUR shall be imposed upon the public authority that is legal entity, with exception of the state body, if:
1) it fails to develop, publish or regularly update, at least once a year the Access to information Guide (Article 11, para 1);
2) it fails to publish on its website an information it is under a duty to publish (Article 12 paragraph 1);
3) it fails to provide an applicant with access to information or a part thereof, except in cases provided for in this Law (Article 13);
4) it fails to provide access to information whose publishing is of prevailing public interest, except if the other more important public interest is proved to exist (Article 17, paragraph 2);
5) it fails to issue or deliver adequate proof confirming reception of the request for access to information if an applicant seeks it (Article 18, paragraph 5);
6) it fails to invite an applicant to to correct the deficiencies in the request or fails to provide an applicant with the instructions for correcting the deficiencies (Article 20, para 2);
7) it fails to provide an applicant with access to information in a manner requested by him/her, except where the requested manner is not technically feasible, or if it fails to convert, where possible and appropriate, the existing format of information into electronic or analogue form (Article 21 paragraphs 2 and 3);
8) it fails to provide an applicant with an insight into public registry or public records within three days from day of submitting the request (Article 22, paragraph 2);
9) it fails to inform the applicant in written form, within three days as of the day on which the request is submitted as to where and when the requested information was published (Article 26 paragraph 2);
10) it fails to make a decision on a request for access to information or fails to submit the decision to the applicant within 15 working days as of the day on which the request is submitted (Article 31 paragraph 1);
11) in case of extension of the time limit for submission and delivery of a decision on a request for access to information, it fails to inform the applicant in writing, within three days as of the day on which the request is submitted about the extension of the time limit for resolution of the request (Article 31 paragraph 4);
12) it fails to execute a decision allowing access to information within three days as of the day on which the decision is delivered to the applicant, or of the day on which the applicant submits proof of payment of costs of procedure, if such costs have been specified by the decision (Article 32);
13) as a first-instance authority it fails to proceed upon a complaint against a decision on request for access to information within three working days as of the day on which the complaint is made (Article 37);
14) it fails to submit the requested information and data to the Council of the Agency within three working days as of the day on which the request is submitted (Article 40, paragraph 1, point 3);
15) it fails to submit data about petitions and acts referred to in Article 41 paragraph 1 of this Law to the Agency within eight days as of the day of on which they are submitted, created, or undertaken (Article 42);
16) it holds responsible an employee who, in bona fide performance of his/her duties, discloses information containing data on abuse of and irregularities in the performance of a public office or official powers (Article 45);
The responsible officer in the legal entity, state body, local self-government body, local government body or a natural person shall be imposed a fine ranging from Euro 200 to 2 000 for a misdemeanour referred to in paragraph 1 of this Article.
Where a misdemeanour referred to in paragraph 1 herein has been committed by an entrepreneur, he/she shall be imposed a fine ranging from Euro 150 to Euro 6 000.
Misdemeanours for the Agency
Article 48
A fine ranging from Euro 200 to 2 000 shall be imposed on the Agency as the legal entity, if the Agency fails to:
1) make a decision about a complaint and submit it to the applicant within 15 days of the day on which the complaint is submitted or fails to decide in meritum on complaint against a decision on access to information (Article 38 paragraphs 1 and 3);
2) submit a report to the Parliament on the state of play in the area of access to information (Article 43)
VI TRANSITIONAL AND FINAL PROVISIONS
Deadline for developing access to information guide
Article 49
Access to information guides, as provided for in this Law, shall be developed and made public on websites of public authorities in an adequate form within 30 days after the entry into force of this Law.
Bylaws
Article 50
Bylaws, in accordance with this Law, shall be adopted within 90 days from the day when this Law enters into force.
Establishment of information system
Article 51
The information system of access to information shall be introduced within 90 days from the day of adoption of a bylaw referred to in Article 41, paragraph 2 of this Law.
Initiated procedures
Article 52
Procedures for access to information initiated prior to implementation of this Law shall be completed in accordance with provisions of the previously valid Law.
Cessation of validity of previous regulations
Article 53
The Law on Free Access to Information (Official Gazette of Republic of Montenegro, no 68/05) shall be cease to exist on the day when this Law starts to implement.
Entry into force
Article 54
This Law shall enter into force on the eighth day as of its publication in the “Official Gazette of Montenegro,” and it shall be implemented after the expiry of six months of the date of entry into force.