The Law on Free Access to Information has been in effect in Montenegro for over a decade, significantly contributing to the transparency of authorities, but also shed light on numerous examples of their illegal and unethical work, as well as various controversial actions of decision-makers. Unfortunately, except that its provisions are not yet fully implemented, in the case of certain bodies, there is also a regression in compliance with legal obligations. In practice, there are frequent cases of non-up-to-date and untimely actions of authorities, both regarding mandatory public disclosure of certain information and responding to user requests, and often go without appropriate sanctions. Additionally, there is a trend of abuse by some users. These are some of the conclusions of the study “Free Access to Information in Montenegro – a system ready for filter change “, published by the Centre for Civic Education (CCE).
The number of bodies obligated by the Law on Free Access to Information is continuously growing, so at the end of 2022, the Agency for Free Access to Information and Personal Data Protection (APDP) register had 1,322 bodies recorded, compared to 260 in 2013. In parallel, the number of applicants is also growing, from 400 in 2013 to 9,441 in 2022. In the structure of applicants, traditionally the largest number of requests comes from non-governmental organizations. Thus, during 2022, NGOs submitted 4051 requests, i.e. 58% of the total number of requests, followed by individuals with 2491 requests (35%), and companies with 226 requests (3%). The data also indicate an annual increase in the number of submitted requests, reaching 6,997 in 2022, according to APDP data, which is significantly higher than, for example, 2013 when there were 1,789. Except in the number of requests, APDP also records an increase in the number of complaints, reaching 8,865 in 2022, significantly more than the record-breaking 5,400 in 2021. A decade earlier, in 2013, APDP had only 361 complaints.
Data from the Administrative Court provided to the CCE also indicate a considerable increase in the number of lawsuits against APDP. In 2021, a total of 1479 lawsuits were filed against APDP, while in 2022 this number rose to 5066, and by 6 September 2023, it reached 7717 lawsuits. Out of 14,262 cases against APDP, from 1 January 2021 to 6 September 2023, only 4,588 have been resolved. The average duration of proceedings against APDP 2022 was 494 days, and from 1 January to 3 October 2023, it was 384.5 days.
Failure to act by authorities is harmful to users, and it also burdens on competent authorities responsible for overseeing their decisions and work, namely APDP and the Administrative Court. This leads to the discouragement of users interested in specific information and creates opportunities for those who misuse legal mechanisms for financial gain. In recent years, Montenegro has been facing abuse of the mechanism of free access to information by certain users. This causes multiple damage – to the state budget, genuine users of the law seeking specific information, and to the authorities processing received requests.
The study also provides an overview of the legal framework of free access to information, offering insight into comparative regional experiences to contribute to an objective view of the current state in this area, i.e. an overview of advantages and disadvantages in Montenegrin practice. During the preparation of the study, the CCE team also conducted a series of interviews with representatives of the authorities, APDP, and the Administrative Court, as well as users of the Law, such as journalists, lawyers, and NGO activists, whose answers are interwined with the topics the study addresses.
To address the difficulties affecting this area and the need for greater transparency, the CCE presents a set of recommendations to improve the area of free access to information in Montenegro. Among other things, it is recommended that public sector bodies more proactively publish information about their work, and more adequately structure and update it on their websites regularly, which would reduce their administrative burden, and subsequent burden of the second-instance bodies. The CCE also suggests opening APDP Council meeting to the public, except in cases in which requiring confidentiality or personal data protection. Amendments to the legal framework, among other, should also go in the direction of preventing abuse of rights by users, but with caution that the introduction of new measures does not open the door for unjustified use by bodies that decide on requests. Similar to the practices that exist in the region, it is necessary to establish a register of bodies that have not implemented the decisions of the APDP, but also to legally define more precisely the jurisdiction for initiating misdemeanor proceedings against bodies and responsible persons in them in case of non-compliance with obligations from the Law on Free Access to Information, as well as other sanctions when the bodies do not implement APDP decisions. Part of the recommendations also refers to encouraging a more proactive role of APDP in informing the public and improving the APDP website.
The authors of the publication are Damir Suljević and Nikola Obradović from the CCE.
The publication was prepared with the support of the Core grant of the regional project SMART Balkan – Civil Society for Shared Society in the Western Balkans, which is implemented by the Centre for the Promotion of Civil Society (CPCS), Center for Research and Public Policy (CRPP) and the Institute for Democracy and Mediation (IDM) and is financially supported by the Ministry of Foreign Affairs of the Kingdom of Norway.
Maja Marinović, Programme Associate