Pursuant to Article 82 paragraph 1 item 2 and Article 91 paragraph 2 of the Constitution of Montenegro, the Parliament of Montenegro in its 24th convocation, at the eight session of the first regular sitting (spring) in 2012, on July 26, 2012 has passed
LAW ON FREE ACCESS TO INFORMATION
I BASIC PROVISIONS
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
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 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 recognized rules of international law.
Free access to information
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
Access to information ensures the transparency of work, fosters the efficiency, effectiveness, and accountability, and affirms the integrity and legitimacy of the public authorities.
Right of the public to know
Access to information ensures the public to know information held by public authorities in order to exercise democratic control over authorities and the exercise of human rights and freedoms.
Equality of requests
Public authorities shall provide any natural or legal entity with the access to information on an equal basis and under equal conditions, unless otherwise stipulated in this Law.
Access to information is of public interest. Access to information may be restricted only for the purpose of protecting the interests specified in this Law.
The expressions used in this Law for natural persons in the masculine gender shall be considered as including the feminine gender.
Definition of terms
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, public institution, company and any other legal person founded by the state, cofounded by the state or in majority ownership of the state or local self-government, legal person 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 public authority 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 be any person who has that status in terms of the law governing conflicts of interest;
8. converting is the process of conversion of certain records –converting the documents from printed to electronic form and vice versa.
II ACCESS TO INFORMATION
Information and access to information
Information shall be a document or the part of the document in written, printed, video, audio, electronic or any other form, including their copies, regardless of the content, the source (the author), the compiling time or the classification system. The right on access to information shall encompass the right to ask for and to receive the information, regardless the purpose and data consisted of.
Access to information guide
The public authority shall develop, publish on its website, 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 for exercising the right of access to information held by the public authority.
The public authority shall update the access to information guide at least once year, namely within 30 days from the day of the change in the type of information in its possession and information relevant to access to information.
The public authority shall enable the access to information in its possession, although the access to information guide does not contain that information.
The public authority shall appoint a person who will be responsible for acting on requests for access to information, as the person who will replace him in the absence.
Proactive access to information
The public authority shall publish on its website following information:
1. the access to information guide;
2. public registers and records;
3. programmes and work plans;
4. reports and other documents on work and status in areas within their competence;
5. drafts, proposals, and final texts of strategic documents, plans and programs for their implementation;
6. draft and proposal of laws and other regulations, as well as professional’s opinion on that regulation
7. single acts and contracts on assignment of financial resources originating from public revenues and of state-owned property;
8. the list of civil servants and state employees with their titles.
9. the list of public officials and the list of their calculated earnings and other incomes and charges related to the exercise of public function.
10. decisions and other single acts that are of importance to rights, duties, and interests of third parties
11. the information to which is approved access upon the request.
The public authority shall publish the information referred to in paragraph 1 of this Article, within fifteen days as of the day of which they are created or passed, 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 appropriate manner such personal data that affect privacy and data that have been marked as confidential, in accordance with the law.
Access to information upon request
The public authority shall grant the access to information or a part thereof to any natural or legal entity seeking the access to information (hereinafter referred to as “applicant”), that it holds at the time of dealing with the request, unless otherwise provided in this Law.
Restriction of access to information
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 prescribed by Law, exept as follows:
– public officials in connection to the exercise of public function, as well as incomes, assets and conflicts of interest of those persons and their family members who are covered by the law governing conflict of interests
– resources allocated from public funds, except for the social benefits, healthcare and protection against unemployment.
2. security, defence, foreign, monetary and economic policy of Montenegro, and particularly information containing data marked as classified, in accordance with the laws regulating the field of data secrecy.
3. prevention of investigation and criminal prosecution, especially information relating to the following:
– on prevention of the commission of the offense,
– on reporting criminal act and perpetrator of it,
– on content of actions undertaken in pre-trial and criminal procedure,
– on proofs collected through observation and investigation,
– on secret surveillance measures,
– on protected witness and collaborators of justice,
– on effectiveness of the procedure;
4. performing the official duty in regard to protect disclosure of the data related to:
– 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, up to the moment of verification of the minutes of meeting/session of that body,
– bringing and conduct of disciplinary proceedings;
5. protection of trade and other economic interests of the publication of data which relate to the protection of the competition and business secret in connection with business property rights.
Duration of restriction
Restrictions on access to information for the purpose of protecting privacy, including data on protected witnesses and collaborators of justice shall last 70 years from its occurrence and at least 20 years from death of the person to whom it relates, except where the person to whom the information relates, his spouse, children, or parents consent to earlier publication of information.
Restrictions on access to information for the purpose of protection of security, defence, foreign, monetary, and economic policies of Montenegro may last not later than until the expiry of the timeframes set by the law governing data secrecy.
Restrictions on access to information for the prevention of investigation and criminal prosecution shall last until the procedure is completed the latest.
Restrictions on access to information for the purpose of performance of official duty may last up to making an official document or establishing the draft decision of a case, verification of the minutes of the meeting of collegial body and the conclusion of the disciplinary proceedings.
Restrictions on access to information for the purpose of protecting trade and other economic interests shall last until the expiry of the deadline in accordance with the law governing intellectual property rights.
Harm test for disclosure of information
Access to information shall be limited if disclosure would significantly endanger the interest referred to in Article 14 of this Law i.e. if there is a possibility that disclosure would cause harmful consequences to the interest more important than the interest of public to know the information, unless there is a prevailing public interest prescribed by the Article 17 of the Law.
The harm test shall not be applied to information from Article 14, Items 1 and 2 of the 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 authority that proclaimed information as classified shall, within ten days as of receiving a request for consent, deliver a corresponding act to the public authority deciding upon the request for information access.
For data contained in information which was proclaimed classified by another state or international organization no harm test shall be applied.
Prevailing public interest
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, illegal use of public funds, or abuse of authority in the performance of 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 thereof referred to in Article 14 herein in cases when there is prevailing public interest for disclosure of information.
III PROCEDURE FOR ACCESS TO INFORMATION
Initiation of procedure
Procedure for access to information shall be initiated upon a written o r o r a l request of an individual seeking access to information.
One request for information may refer to several pieces of information.
The request for access to information shall be submitted to public authority by hand, mail, or e-mail (via fax, e-mail, etc).
The oral request for access to information shall be submitted to the public authority directly for the record and the public authority shall receive it without delay.
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
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 appl icant may speci f y in request other data that are of importance for exercise of the right of access to the requested information.
The public authority may prescribe a form for the access to information but he is obliged to act on the request that is not submitted in this form.
Assisting the applicant
The public authority shall assist the applicant, as far as reasonably possible, to access the requested information.
If the request for access to information is incomplete or incomprehensible and therefore it cannot be acted upon it, the authority shall invite the applicant, within eight days from the date of application, to correct the deficiencies in the application and instruct him how to correct deficiencies.
In the case of paragraph 2 of this Article, the deadline for decision shall start from the date of the revised request.
If the public authority is not in possession of the requested information, he shall without delay, if he knows which of the authorities is in charge of acting on a request for information, send a request to the competent authority and inform the applicant.
Forms of access to information
An applicant shall access the requested information by way of:
1. direct insight in 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 impossible.
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).
Form of access to public registers and records
Access to public registers and records to the public shall be enabled directly upon written or oral request, without making a decision, by an insight into the premises of the public authority.
A public authority is obliged to provide access in a public register and records to the applicant within five days of the request and to make the official record about it.
Access to information to persons with disabilities
Disabled person shall be granted access to information in such a form and format as are fitting to his abilities and needs.
Form of access to a part of information
If a restriction applies to a part of information, in accordance with 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 “deletion completed” and a notification of the extent to which the information was deleted (rows, 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
The public authority that holds requested information shall be competent for deciding upon the request on access to information.
Legal entity, entrepreneur or natural person who pursuant to Article 9 item 1 of this Law is considered as the public authority because he conducts the public authorization or manages with the public fund shall enable the access to information in his possession that relates to the conduct of public authorization or the management with the public fund.
Access to published information
The public authority shall not be obliged to enable access to information that hold, by an e-mail, if that information is published in public in Montenegro and available on the website of the public authority.
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 five days as of the day when the request is submitted.
Application of rules of procedure
The public authority shall decide upon request for access to information by applying the rules of general administrative procedure, unless otherwise provided in this Law.
Dismissal of request
The public authority shall dismiss a request for access to information if the applicant fails to act in accordance with Article 20, paragraph 2 of this Law.
Reasons for denying request
The public authority shall deny the request for access to information if:
1. it requires that new information should 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
The public authority shall decide on the request for access to information, except in the case of Article 22 of this Law, by way of a decision 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
The public authority shall make a decision on the request for access to information and deliver it to the applicant within fifteen 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 eight 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 five 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
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
At the request for access to information the fee shall not be paid.
Costs of procedure for access to information include actual costs incurred by the public authority in relation to copying of documents, scanning and delivery of information to the applicant, pursuant to the regulations of 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
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, Agency 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, against a decision on denying a request for access to information that contains data that indicated as classified information cannot be appealed, but with the lawsuit can be initiated an administrative dispute.
Reasons for complaint
A complaint may be lodged against the decision on request for access to information for the violation of the rules of procedure, incorrect and incomplete determined facts and misapplication of the law.
Effect of complaint
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
The first-instance authority shall carry out, within its competencies defined by the law, all activities upon the complaint within five days following the day when the complaint has been submitted.
Agency proceeding upon the complaint
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 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
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 and submit reports thereon;
4. perform inspection supervision over the implementation of this Law in relation to the creation and update of the access to the information guide, proactive disclosure of information and delivery of documents and data for the purpose of managing information system of access to information.
5. submit requests for opening of misdemeanour proceedings for violations of this Law that fall outside the competence of inspection;
6. perform other duties as prescribed by this Law.
Powers of the Agency
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 of this Article shall deliver the requested information and data to the Council of the Agency within five days as of the day on which the request is submitted.
Information system of the information access
For monitoring state of play in area of the access to information, the Agency shall keep an information system of access to information (hereinafter referred to as “the information system”) 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
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 ten days as of the day when they are submitted, created, or undertaken.
Report on state of play in area of access to information
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.
In addition to the obligation referred to in paragraph 1 of this Article, the Council of the Agency shall submit a report to the Parliament whenever the Parliament requests such information.
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
An employee of a public authority who, in bona fide performance of his 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.
Inspection supervision over the implementation of this Law shall be performed by the Ministry responsible for administrative affairs, except inspect supervision from the Article 39 paragraph 1 item 4 of this Law.
V PENALTY PROVISIONS
Misdemeanours for public authority
A fine ranging from 500 to 20.000 EUR shall be imposed upon the public authority that has the status of a legal person if:
1. it fails to develop the access to information guide or fails to publish it or regularly update it, at least once a year (Article 11 Paragraph 1),
2. it fails to publish on its website the information it is under a duty to publish (Article 12
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 (Article 17, paragraph 2),
5. it fails to issue or deliver to the applicant adequate proof on received request for access to information (Article 18, paragraph 5),
6, it fails to invite the applicant to remove the deficiencies in the request, fails to instruct him how to remove the deficiencies (Article 20 paragraph 2),
7. it fails to provide an applicant with access to information in a manner requested by him except where the requested manner is technically impossible, 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 register or public records within five days from the day of request submission (Article 22 paragraph 2),
9. it fails to inform the applicant in written form, within five 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 fifteen 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 five 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 five 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 five 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 five days as of the day on which the request is submitted (Article 40, paragraph 2),
15. it fails to submit data about petitions and acts referred to in Article 41 paragraph 1 of this Law to the Agency within ten 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 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, public authority, local self government, local government and a natural person shall be imposed a fine ranging from Euro 200 to 2000 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 shall be imposed a fine ranging from Euro 150 to Euro 6000.
Misdemeanours for the Agency
A fine ranging from Euro 200 to 2 000 shall be imposed on the Agency, as the legal entity, if 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 on the state of play in the area of access to information to the Parliament (Article 43).
Where a misdemeanour referred to in paragraph 1 herein has been committed by the responsible person in Agency shall be imposed a fine ranging from Euro 200 to Euro 2 000.
VI TRANSITIONAL AND FINAL PROVISIONS
Deadline for developing access to information guide
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, in accordance with this Law, shall be adopted within 90 days from the day when this Law enters into force.
Establishment of information system
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.
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
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
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.