Acting upon the complaint filed by HRA against the Agency for Personal Data Protection and Free Access to Information for several times exceeding the legal deadline to decide upon the complaint for denying the right to free access to information, the administrative inspector discontinued the proceedings and accepted the insufficient number of ‘’executive civil servants’’ processing complaints in the Agency as acceptable justification for the breach of law. HRA finds that such decision made by inspector is illegal and detrimental for the establishment of the rule of law, and required from the competent Ministry of Interior Affairs to reassess the decision.
HRA notified the Inspection authority that the Agency breached the Article 48 of the Law on Free Access to Information, according to which the Agency is to be fined from 200 to 2000 EUR, if they violate the 15-day deadline to act upon the complaints. On the day when the misdemeanor complaint was filed to the Inspection authority, the Agency had not processed the complaints by HRA for already three and a half months. The inspector commenced the inspection control proceedings but later on discontinued them, accepting the justification by the President of the Agency Council that ’’the execution of the decisions made by the Agency Council is in jurisdiction of the two executive civil servants, which is insufficient for the undertaking of administrative actions and all other activities in cases of both deciding and acting in the proceedings’’.
By mere acceptance of this justification without critical assessment, the inspector sent a clear message to the Agency and other state authorities that they can easily continue breaching the law under the claim of an insufficient number of ’’executive civil servants’’, despite the fact that the lack of staff is not an excuse for disrespect of legal deadlines, especially when such delay is legally defined as small offense (misdemeanor).
The Law of Inspection Control obliges the inspector to not only issue a fine for exceeding the deadline, but to order the Agency to take the necessary measures within the deadline that set by the inspector, neither of which was undertaken by the inspector in this case. Also, the same law explicitly states that an inspector is authorized to discontinue the proceedings only if she finds that the controlled entity has completely removed the irregularities indicated by the inspector within the deadline set, which has not happened in this case.
It remains unclear why did the inspector accept the explanation provided by the President of the Agency Council about the lack of executive civil servants, considering that the Agency’s Council is working in its full composition (3), that it organizes its work and that the Agency’s Director could have increased the number of the executive civil servants in these positions, until the number of the employees is also eventually increased in accordance with the need.
The HRA case study of free access to information – i.e. decisions requested from the courts in Podgorica, you may find here in Montenegrin language.
In summary, HRA manged to receive requested information i.e. decisions of the Higher court in Podgorica only 8 months (250 days) since the day of request, whereas not even 9 months (272 days) since the day of request, did the requested decisions from the Court of first instance arrive. The same type of decisions the other courts in Montenegro have made available for the general public and published on their websites.
The access to decisions happened only after the Agency decided upon the complaints against the courts 7 months following the date it received the complaints, which means that the Agency 13 times breached the 15-day legal deadline for its deciding upon complaints. According to HRA’s information, the Agency is continuously breaching the law in other cases concerning free access to information, and HRA was the first one to report the Agency for the breach of law in terms of small offense. Unfortunately, the reaction of the inspection authority has not corrected the wrongdoings but encouraged the systematic law violation in cases where the state authorities can use as an excuse the insufficient number of executive civil servants.
HRA is convinced that such approach of the inspection authority should not become general practice at the expense of the rule of law in Montenegro, and we are expecting the Ministry of Interior affairs to review the case and secure different approach of the Inspection authority.
The letter regarding this matter, which was sent to the Minister of Interior Affairs, Goran Danilović, the General Director of the Directorate for State Administration, Dragana Ranitović, and the Chief Administrative Inspector, Dragica Anđelić, on the 9th of September 2016, you may find here in Montenegrin language.