ion gâlea. law no. 544/2001 on the free access to information of public interest; government...

FREEDOM OF INFORMATION AND GOVERNMENT TRANSPARENCY IN ROMANIA

Ion Gâlea

LEGAL FRAMEWORK IN ROMANIA

Law no. 544/2001 on the free access to information of public interest;

Government Decision no. 123/2002 – Methodological Norms for implementation

Law no. 52/2003 on transparency in decision-making

Ordinance no. 27/2000 on responding to petitions

Law no. 554/2004 on administrative claims

SCOPE OF LAW ON FREE ACCESS “information of public interest” is

defined as “any piece of information that concerns the activities or that results from the activities of a public authority or institution”;

“public authority or institution” is defined as “any public authority or institution that uses or administrates public financial resources, any public company, national company or any other company that is under the authority of a central or local public authority and in which the Romanian state or an administrative unit is sole or dominant shareholder”

SCOPE Critical remark - the scope of the Law does

not include information on the way in which public funds or resources is used by private entities

Relation to information of private interest – article 10 excludes the activity of public authorities and institutions related to answering petitions and audiences, if this activity concerns approvals, authorisations, services as well as any other requests other than information of public interest”

EXCEPTIONS

1. certain categories of classified information – those in the field of national defense, public security and public order, those that concern the deliberations of public authorities an those that concern economic and political interests;

- article 13 : „information that favour or hide a breach of law cannot be considered as classified and represent information of public interest”.

EXCEPTION – CLASSIFIED INFORMATIONLaw no. 182/2002 on classified information article 24 (5): “it is forbidden to classify

information, for the purpose of hiding breaches of law or administrative errors, or of restricting access to information of public interest, restricting exercise of fundamental rights and damaging the legitimate interest of persons”;

Article 20 – procedure for “de-classification”;

EXCEPTIONS2. Information on commercial and financial

activities, rendering this information public affects the principle of free competition

3. Information on personal data - “any information concerning an identified or identifiable natural person”;

- Article 14 (1) - “information concerning personal data of the citizens may become information of public interest as long as it affects the capacity to exercise public functions”

EXCEPTIONS

4. Information concerning the procedures within criminal or disciplinary investigation;

5. Information on judicial procedures, if it affects the principle of a fair trial or the legitimate interest of parties in the procedures;

6. Information that would affect measures aimed to protect the young.

EXCEPTIONS – CRITICS

The principle of prevalence of public interest, if put in balance with the private interest that is protected, is not regulated as a general “exception to the exceptions”. It applies only in the cases of: Personal data; Classified information.

OBLIGATION TO PROVIDE INFORMATION EX OFFICIO

Legal acts regulating the organisation and functioning of that authority or institution;

Organisational strucutre, competence of departments, functioning programme, programme when the institution is working with the public;

Names of the leading persons of the institution and of persons in charge with public communication;

Identification data, including adress and contact;


Financing sources, budget, ballance; Programmes and strategies; List of public interest documents; List of categories of documents dealt

with by that authority or institution, according to their legal attributions;

Ways in which the decision not to disclose information of public interest can be contested.


posting at the headquarters of the institution represent the minimum obligation for rendering public ex officio public interest information;

the authorities and institutions have the obligation to present the information in a way which is accessible to the public and concise, so as to facilitate the contact

IMPLEMENTATION OF OBLIGATION TO PROVIDE PUBLIC INFORMATION

General concept of the - autonomy and de-centralization of implementation;

The Law does not create a central authority which would supervise the obligation of authorities to respect the right to free access to public information (as HU, IR, DE, UK – however, they deal primarily with data protection) ;

The execution of this obligation is left upon each authority or institution, notwithstanding if it they are central or local authorities.

IMPLEMENTATION AND CONTROL

Judicial control is the core concept of the law

If an authority refuses to respond to a request for public information, the petitioner, after accomplishing the hyerarchical administrative comlpaint, has the right to contest the decision before a Tribunal

IMPLEMENTATION

Institutions have the obligation to create offices or departments within each authority or institution, that would be competent for public information and public relations, as well as persons with specific duties in this field

IMPLEMENTATION i) institutions and authorities at central

level are obliged to create at least an office competent for public information and an office competent for relations with media;

ii) de-centralized local structures subordinated to central authorities are obliged to create offices for information and public relations and to appoint persons competent for relations with media;

iii) communes (rural local authorities) are obliged to appoint persons competent for public relations and media relations.

IMPLEMENTATION Providing information upon request - standard

models of request and reply Oral request - answer is communicated instantly,

within the public working hours. If information is not available immediately, institution shall recommend the person to formulate a written request

Written request must contain: the authority to which it is addressed, the information that is requested, in such a way as to allow the institution to identify the information, name and signature of the petitioner, as well as the addres at which he/she desires to receive the answer

DEADLINES

10 days for communicating the information (general deadline).

if the difficulty, complexity or volume of the work necessary to identify and render the information makes necessary to overpass this deadline, it can be extended to 30 days. However, the autority is obliged to inform the petitioner within 10 days that the deadline has been extended to 30 days.

5 days for refusal to make the information available and to motivate the refusal.

REMEDIES IN CASE OF REFUSAL

omission to respond to a petition within the prescribed deadline is considered “tacit refusal”;

Stages of the procedure: - administrative complaint - judicial claim

ADMINISTRATIVE COMPLAINT

the “administrative complaint” is addressed to the head of the authority of institution;

The deadline to submit the administrative complaint is 30 days from the moment that the person learns about the refusal.

In case of tacit refusal, the 30 days are calculated from the expiration of the deadline within which the authority is obliged to respond - 10 days from the moment when the request is deposed

ADMINISTRATIVE COMPLATIN If the petitioner receives a preliminary

answer stating that the deadline has been prolonged to 30 days, the deadline for filling the administrative complaint is calculated from the expiration of these 30 days.

if the complaint is grounded, the answer shall be given within 15 days, which will comprise the requested information, as well as the disciplinary sanctions against the person responsible for the default

(no provisions with respect to ”if the complaint is not grounded”)

JUDICIAL REMEDIES

Special features of the juridical claim based on Law no. 544/2001, by comparison to ordinary administrative procedure:a) general administrative law provides that the administrative complaint is mandatory, while Law no. 544/2001 provides that the action before the Tribunal can be filled within 30 days from the expiry of deadlines provided by article 7 – meaning that the administrative complaint is not a mandatory step before going to court;

JUDICIAL REMEDIESb) the Tribunal is always the competent court and the territorial competence is regulated more flexibly: the petitioner may fill the action, alternatively, at the Tribunal of its domicile or of the headquarters of the institution; c) in general administrative law, the petitioner must “prove an interest” in his complaint. In the field of the right to access to public information, the general principle is that the petitioner may request the information “just for curiosity”, the interest being self-understood

JUDICIAL REMEDIESd) The complaint on the basis of Law no. 544/2001 is judged under “emergency procedure” (article 22 (5) of the Law.In practice, the case takes between 1 and 2 years, including the appeal before the Court of Appeals In practice, the respondent institution is bound by law to initiate an appeal – otherwise the legal department of that institution could be held accountable for the possible sanctions

CASE LAW

Decision no 2447CA/2010 of the Alba Iulia Court of Appeals. The Court rejected the argument of the public authority asserting that the written demand was difficult to read (due to difficulties in handwriting). If difficulties appear with respect to the identification of the information requested (according to article 7 of the law, including as a result of the handwriting), the authority was obliged to inform the petitioner about this situation within 10 days.

Decision no. 601/2009 of the Bacau Court of Appeals. The Court held that the law would be infringed if the petitioner was not provided with the concrete information he/she has requested. In that case, the petitioner asked for data concerning the salaries of civil servants and the authorities’ response was limited to making references to “salary leaflets”, without providing concrete data about payment documents and other requested relevant working hours data.

Case no. 990/2010, X v. Cluj Cityhall. The Court of Appeals decided that the name of a person together with its association with a public function are elements of public interest and cannot be subject to the exception based on personal data. Additional information, such as the date when the working relations with the Cityhall ceased, were considered by the Court not susceptible as being covered by the “personal data exception”. Case-law Analysis, page 24;

CASE LAW

CM v. Breaza Cityhal (2011) - the petitioner requested copies of the decisions and authorisations by which a bus stop was dismantled and a press kiosk was authorised to be built. The Tribual admitted the claim, determining that the requested information was of public interest. The appeal of the Cityhall was rejected for procedural grounds.

DE c. Patarlagele Cityhall, the petitioner, who was a party in another case on restitution of property, requested documents that the municipality used for restitution of property to other owners. The municipality refused the free access to documents (without providing reasons). The Tribunal did not accept the claim, but the Court of Appeals admitted the claim and obliged the municipality to transmit the requested documents to the petitioner. However, the Court did not accept the claim for moral damages, due to the fact that prejudice was considered not to have been caused by the refusal to grant access to documents, but by the documents themselves.

X v. Ministry of Justice (2010) - the petitioner sent a request by e-mail, requiring to be informed about the procedure by which he could obtain the Romanian citizenship.The Court of Appeals dismissed the claim. The argument was that such a request was a request for information of personal interest, which is subject to relevant legislation on petitions (Ordinance no. 27/2002) and not an information of public interest. The Court relied also on article 10 of Law no. 544/2001.

CI v. Valcea Prosecutor’s Office (2010) the petitioner requested copies of resolutions issued by the prosecutor within the criminal procedure. Both the Tribunal and the Court of Appeals rejected the petitioner’s claim, for two reasons: first, the Prosecutor’s Office responded to the petition and informed the petitioner about the procedural acts and, second, the procedural acts were communicated to the petitioner through the normal procedure (although he claimed that he did not receive the acts).

TM v. Local Public Finance Service Dambovita (2010). The petitioner requested the document containing the attributions of head of unit M.C. The Tribunal admitted the action, rejecting the plea of the Public Finance Service based on the personal data exception and lack of direct interest. The Tribunal also granted moral damages to the petitioner. However, the Court of Appeals annulled the decision of the Tribunal, on the ground that the plaintiff did not prove a direct interest in the requested information. In our opinion, the decision of the Court of Appeals was wrong, as the Law 544/2001 expressly provides that any person could request the information. Indeed, the Court applied the criterion valid in general administrative law, ignoring the special provisions of Law no. 544/2001. The decision was irrevocable.

TM v. Police (2011) - the petitioner requested a table containing the list of all employees of the Local Police, including surname, first name, position and functions. The authority replied that the names of all employees were already made public ex officio, on the website of the institution, but that other information was covered by the exception on personal data. Both the Tribunal and the Court of Appeals upheld the position of the Police.

ISD v. Ministry of Foreign Affairs. The petitioner filled 52 different requests, by which he claimed information concerning the number of consular posts in country X (each request concerned a different country), the number of certificates of citizenship issued by the consular posts in that country between 1991 and 2009 and the number of oath ceremonies held by the consular posts in that country. The Tribunal admitted all the claims. The Ministry invoked the lack of interest in the claim.

The Tribual held that in cases involving Law no. 544/2001, the interest is affected by the mere fact that the request for public information is not answered. Also, the Tribunal did not accept the argument of the Ministry that the information is very complex and the Ministry lacks a database that would enable answering the punctual 52 requests of the complainant. The Court of Appeal rejected most of the appeals.

However, in one case, 670/24.03.2011, the Court of Appeal admitted the appeal and rejected the claim on the merits, considering as grounded the argument according to which the complex nature of the information requested, the fact that there is no database and the fact that, anyway, all the decision on citizenship are published in the Official Journal.

The cases prove two tendencies: on one hand, important considerations are

made by the Bucharest Court of Appeal: no interest is needed in case of the Law no. 544/2001; if the institution does not execute the judgment obliging it to render the public information, articles 24 and 25 of the Law no. 554/2004 on administrative claims apply to the execution of judgments;

differences in jurisprudence can occur in front of the same Court, in similar claims (the 52 claims were treated differently, as we exposed, sometimes with different outcomes).

CIISTE SRL was a limited liability company had its object of activity university education. The company was involved in a case against Romania in front of the European Court for Human Rights (Dumitrascu and Mitrache v. Romania), as it was not recognized as an university education institution. In order to prepare this case, it requested to a high number of authorities information concerning the professional traject of its graduates.In one case it requested the National Agency for Civil Service to provide data on the opinion it provided for an civil servant. Even if the obligation to grant data was generally admitted in such a case by the Court of Appeals, the Court held that the request lacked sufficient precision (indicating at least the period when the opinion was issued) as the National Agency provides opinions for all civil servants on central level.

In another case, CIISTE SRL requested the General Directorate of Public Finance Vrancea the following data: 1) whether Mrs. X attended a competition involving mandatory university degree; 2) whether Mrs. X was admitted following such competition;3) when was the competition held;4) what were the results of the competition.The Court held that the General Directorate answered within the 10 days deadline, by informing that Mrs. X was an employee since 1996, on a position not involving university degree, and that she requested to be upgraded in 2009, presenting an confirmation on the part of the ”university” of CIISTE SRL, but, however, that the National Agency for Civil Service did not approve the upgrade. The Court of Appeals held that the General Directorate did not breach its obligation under Law no. 544/2001.

HD v. Ministry of Culture (2009) the petitioner requested the institution to respond ”what have it done since 1989 for continuing building culture establishments that were unfinished” and “why a certain building was not included in the reconstructure programme”. An answer was given, but the petitioner contested it before the Tribunal as being incomplete. The Tribunal rejected the claim for “lack of interest”. The Court of Appeal rejected the reasoning of the Tribunal and upheld the claim of the petitioner, considering that the interest results from the right of any person to have access to information of public interest.

G.A.V. v. Timisoara Cityhall, the petitioner requested information concerning the construction authorisation granted to a person that held ½ of a building together with the petitioner. The petitioner claimed that the construction authorisation was not respected and the Cityhall accepted the finalisation of the construction. The Tribunal and the Court of Appeal rejected the claim and argued that “negative response” is a legitimate response ane cannot be equivalent to “tacit refusal”.

N.M. v. Sabaoani Cityhall (2007). The petitioner requested the Citiyhall to inform him about the agenda of Local Council Meetings and about decisions taken in those meetings. The petition was rejected for the reason that this information is made public ex officio on the basis of Law no. 52/2003 on transparency of decision making and this law provides that a draft act may be given to consultation to an individual person if a specific act is requested (instead, N.M. required all the acts).

FNI v. ROMTELECOM SA (2009). FNI, being imprisoned in the Arad Prison, requested the telephone company information on “why there are not sufficient public telephones in the prison”. The claims before the Courts were dismissed, on two grounds:

ROMTELECOM is a private company and is not covered by Law no. 544/2001

It answered the petitioner by saying that lack of technical conditions is the reason for not installing more telephones.

MNE v. Forest Authority Amarandia (2008). The petitioner requested a copy of the “inventory position” of a plot of 10,8 ha of forest land. The Forest Authority refused the request, invoking several reasons, among which the fact that it was not the owner of the land and the lack of interest of the petitioner.

The Tribunal obliged the Forest Authority to send this information and obliged it to pay 3000 lei (around 900 Euro) moral damages and 100 lei (30 Euro)/day of delay until fulfillment of the obligation.

IPP v. General Directorate for Child Protection (2008) . An NGO (Institute for Public Policy) requested information on the way in which fonds from the European Community were used. The Tribunal obliged the General Directorate to issue the information. However, the request for moral damages was not accepted.

Center for Legal Resources v. District Council (2008)The NGO asked the District Council Braila detailed information about the way in which access to public information and transparency in decision-making process is implemented. The information was needed for a project funded by the EU.The District Council replied that due to the high amount of information requested, it is unable to respond within the prescribed deadline, but offers the possibility of the requesting NGO to study all relevant documents at the headquarters of the institution. Claims before the Tribunal and Court of Appeals were rejected, as the reply was not interpreted as “refusal” but as a positive answer, because the authority “made available” the relevant documents.

Association for Information and Civic Attitude “European Horizon” v. Pascani Local Council (2007). The Association requested information about the way in which houses built through the National Housing Agency were distributed. Following the refusal of the Local Council, the Tribunal and the Court of Appeals accepted the claim and obliged the authorities to provide the information. 1500 lei judicial expenses were granted.The procedure lasted 8 months.

JMG v. Eforie City Council (2008). The petitioner requested copies of all decisions of the City Council by which plots of land belonging to public property were transferred into private property of the State, between 2000 and 2008.The Tribunal and the Court of Appeals obliged the City Council to provide the copies, rejecting the argument of the authority that the petitioner showed no interest.

EVALUATION OF CASE-LAW

In most cases, public information requests concerned: restitution of property; salaries of civil servants; measures adopted in criminal

proceedings; expenses from public funds; requests for reobtaining Romanian

citizenship

STUDY CONDUCTED IN 2011 (IPP)

Tribunal (first instance jurisdiction) rejected 61,5% of the requests based on Law 544/2001.

Decisions of the Tribunal were reversed by the Court of Appeals in 17% cases (of which, in 27% of the cases the appeals were filed by petitioners and in 71% of the cases by the authorities)

EXECUTION OF JUDGEMENTS

article 24 of the Law no. 554/2004 on administrative claims: if, within the administrative claims procedure, the Court obliges the authority to issue an act or any other document, the decision shall be executed within the deadline provided in it and, if the decision does not provide any deadline, within 30 days from the date when it is irrevocable

EXECUTION OF JUDGEMENTS

Paragraph (2) of article 24: if the deadline is not respected, a fee shall be applied to the head of that authority, equivalent to 20% of the minimum gross salary for each day of delay.

The petitioner has the right to obtain damages for the delay.

paragraph (3), non-execution of decision after the fee provided by paragraph (2) represents a criminal offense, punishable with prison from 6 months to 3 years or with criminal fee.

EXECUTION

Article 25 regulates the procedure for applying the fee and for granting damages for delay to the petitioner. The competent court is the execution court, which delivers an expedite judgement, after summoning the parties.

INCOMPATIBILITY WITH OTHER PIECES OF LEGISLATION

- Relation with the “Law on petitions” (Ordinance no. 27/2000 – regulates petitions concerning access to information of “personal interest”

- Ordinance 27/2000 obliges all authorities to respond within 30 days – which is the general administrative deadline.

EXAMPLE OF INCOMPATIBILITY

Law on treaties (590/2003) – provides that the text of an international treaty cannot be made public before ratification, except for the case that the parties to a treaty expressly agree

The law on treaties “prevails” In very important cases, treaties are

made public by the consent of both parties

Q&A

What happens in case of“Silence of administration”

Romanian law provides the answer in general administrative procedure: failure to respond within the deadline provided by law represents “tacit refusal”

Moreover, persons often bring judicial claims for “incomplete answer”

Q&A

Implementation – do authorities execute judicial decisions?

- In practice yes. As failure to do so is a criminal offence, we are not aware of cases when such criminal procedures have been started against responsible persons;

ORGANISATION WITHIN INSTITUTIONS Each ministry has the obligation to

create an office for public relations and an office for relations with media

Ministry of Foreign Affairs – Communication Department (director general)

Institutional Relations and Public Information Directorate (director)

ORGANISATION

How things work The Director for Institutional Relations and Public

Information receives the requests It sends the request to the competent department,

asking for a deadline Receives the request and sends it to the petitioner Approval of the minister is taken in “most

important cases” (see below). Normally, the Director of the competent department and the Director for Institutional Relations and Public Information decide to release the information.

MEASURES TO ENHANCE IMPLEMENTATION

I. Consolidation of units/responsible persons within institutions

- number position (head of unit/director) possibility to take decisions on granting

free access should be given to specially assigned persons


II. Information culture within institutions Civil servants, especially those holding

management positions, should be trained about the legal framework on public access to information;

Leadership (political level)


Means to spread information about legal framework: seminars/workshops with civil servants,

which would include simulations; awareness raising publications media campaingns

Importance of targeting aslo the judicial system


III. Involvement of the media media/journalists are a key component

of requesters of information; heads of public institutions are

politicians – more sensible to media reactions than decisions of other authorities

tool: establishing a confident relation with the media


IV. Involvement of the civil society Inform the public and the NGOs about

the legal framework on free access; NGOs should become a key requester; Use of funds/EU funds, if available, for

NGO projects in the field of free access to public information

Example: a website containing case-law on free access to public information


V. Strengthening the legal framework Legal status of decision of the

Commission (example – “Article 19” model law)

Special sanctions for not respecting decisions of the Commission;

Procedures for applying sanctions Non-respect of judicial decisions –

criminal offence

SPECIFIC PROVISIONS ON THE MEDIA

Law: Principle according to which access of

media to information of public interest is guaranteed;

Obligation to appoint a speaker (art. 16) Obligation to organize a press

conference, at least monthly – within which questions concerning information of public interest are answered (art. 17)

MEDIA

- Obligation to grant accreditation to journalists, without discrimination;

- Accreditation is granted upon request, within 2 days;

- Authorities may refuse granting accreditation or may withdraw accreditation only for actions that impeach the normal activity of the authority, not for opinions expressed by the journalist;

- Refusal is sent in written and does not affect the right of the press body to obtain accreditation of another journalist

MEDIA

- Obligation to inform in due time about the press conferences or other media actions;

- Access of media to press conferences or other public actions may not be restricted, under any reason;

- Obligation to allow the presence of the media to activities to which public is participating;

- Journalists do not have the obligation to publish information provided by the authorities

PRESS

Government Decision 123/2002: Functions of press officers:

- To provide to journalists, promptly and completely, information of public interests concerning the activity of that institution;

- To provide accreditation within 2 days, without discrimination;

- To inform in due time about media events and to grant access to journalists

PRESS

Functions of press officers: To ensure the dissemination of press releases,

press documents interviews and briefings, within the media events;

To provide to journalists press files related to the activity of the institution;

Not to refuse or withdraw the accreditation, except for actions actions that impeach the normal activity of the authority;

In case of withdrawal, to grant accreditation of another journalist to the respective press body

MEDIA

Accreditation: Is granted upon request to journalists and

press bodies; Permits are not transmissible; Permits allow the physical presence

of the journalist inside the headquarters of the institution or at the activities of the institution to which access to media is granted

MEDIA

Accreditation does not provide for the right to control the published materials;

Participation of journalists to activities of public institutions cannot be restricted or limited through internal regulations that exceed the framework of Law 544/2001;