For the purposes of evaluating the level of transparency and accountability of the public administration in BiH, the Mediacentar Sarajevo has conducted research entitled Monitoring Democratic Development in Bosnia and Herzegovina: Accessibility Index of  Public Institutions, Organisations and Agencies.

The project has included an overview and a comparative analysis of the legislative framework, as well as empirical research.

The realization of the project was funded by The Open Society Fund.

Overview of the legislative framework:

The comparative analysis of the existing legislation at the state and entity levels has revealed deficiencies in certain legal provisions. The most important of them has been that the public institutions are not obliged to respond in the form of a decision; the prescribed response form is a notification which does not make it possible for a requester to exercise her or his right in the appeals procedure, since the Law on administrative procedure does not recognise a notification as an administrative decision.

Within the empirical part of the research, a sample was formed that included 240 public bodies at all levels of authority (state, entity, cantonal, municipal, Brcko District), as well as different types of public bodies (legislative, court, executive, etc.).

Public bodies were sent requests for access to information (a total of 11 different questions) in two cycles. The first cycle included all public bodies from the sample, while in the second cycle the requests were sent again to those public bodies which failed to respond in the first cycle.

The first cycle yielded 103 (42.9%) responses, while as many as 137 (57.1%) public bodies failed to respond to the request for access to information. In the second cycle, 61 responses were received, so that the final number of responses came to 164, which altogether makes 68.7%.

Further analysis and synthesis of data produced the following indicators: 58.8% responses were in line with the Act; 8.8% were in contradiction with the Act; and 31.7% of submitted requests received no response.

75% of responses were received within the deadline prescribed by the Act, while 25% violated the deadlines prescribed by the Act. Particularly alarming is that the legislative authorities in almost 60% of the cases have violated the deadlines prescribed by the Act. The research did not show there were considerable differences in the types of responses depending on the level of authority, area of operation and requesters.

As part of the empirical research telephone interviews with 18 representatives of public bodies were conducted. The received data indicate that fewer than half of the officials (N=18) went through some kind of formal training on the Freedom of Access to Information Act. These were mostly officials from traditional public authority, while the training sidestepped the information officers from the public sector.

The number of received requests is still very small. Some public bodies have not received any requests apart from the request received as part of this research. In cases where they do, some 20 requests per year are received. This situation indicates that Bosnia and Herzegovina is in the initial phases of the implementation of the Freedom of Access to Information Act, and that the public bodies have still not faced major challenges.

Recommendations:

Legal framework - recommendations to the legislative authority

Amendments to the Freedom of Access to Information Act at the state level in terms of changing Article 14, which sets out that, in case of a negative response to the information request by a public body, the citizens should receive a notification - not a decision, in order to allow the citizens to exercise their right to access to information through an appeals procedure.

Accept the initiative of the Transparency International BiH for an amendment of the RS Freedom of Access to Information Act, with the same objective.

Harmonise legal provisions at all levels of authority to have identical definition of legally prescribed deadlines for delivering responses to information requests, as well as a clear definition of exemptions based on evaluation of each individual case.

Review all pieces of legislation, passed subsequent to the Freedom of Access to Information Act, that restrict the rights and obligations set out under this Act. This refers in particular to the Law on Tax Administration and Criminal Procedure Code in the Federation of BiH.

Implementation

Authorities in Bosnia and Herzegovina, the Federation of BiH and the Republika Srpska should disseminate a list of all public bodies subject to obligations set forth in the Freedom of Access to Information Act. At the same time, we need to stress that the list does not restrict the number of public bodies, i.e. if a public body is not included in the list, it does not mean it is not subject to obligations under the Freedom of Access to Information Act.

Public bodies must carry out their obligations with regards to the implementation of the Act in terms of appointing Information Officers, developing indexed register and a guide, and report information as set out under the Act to the responsible bodies of the Parliamentary Assembly. In addition, it is necessary to make the collected data available on the web site of the Parliamentary Assembly, which at the moment is not the case.

Ministries of Justice should, in cooperation with the responsible Ministries, notify the public sector bodies (health institutions, public television stations, elementary and secondary schools, faculties, etc.) that the Act refers to them as well, and that they are obliged to familiarise themselves with the Act and to implement it.

Encourage further education of citizens on the Freedom of Access to Information Act, as only through active engagement with this Act we can expect to achieve a greater level of implementation. In this sense, public bodies should take particularly active role by promoting the Act through their web sites, newsletters, information points and other existing resources.

Continue with the commenced education programmes for the public officials to introduce them to the objectives of the Act, its scope of operation and prescribed procedures. Special attention should be paid to include representatives from the public bodies of the so-called public sector in the education process, since they have been sidestepped by the education programmes carried out so far.

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