Do the Gov’t and High Administrative Court understand the right of access to information?

Zagreb, 10.4.2014.- Ministri Vesna Pusiæ i Orsat Miljeniæ i premijer Zoran Milanoviæ tijekom sjednice Vlade Republike Hrvatske. foto FaH/ Denis CERIÆ/ ua

After the High Administrative Court had allowed the Croatian Government to continue hiding the amount that was paid to American law firm Patton Boggs LLP for the defense of Ante Gotovina and Mladen Markač in the appellate procedure before the International Tribunal in the Hague, GONG has filed a constitutional complaint challenging the High Administrative Court’s ruling, as citizens have the right to know how budgetary funds are spent.

Let us start with a brief review: three years ago, GONG had requested the Ministry of Justice of the Republic of Croatia to provide a copy of the Contract for Legal Services signed between the then-HDZ government and the Patton Boggs law firm, along with copies of the appendices to the Contract. However, the Ministry of Justice passed this “hot potato” up to the Government, attempting more or less successfully to circumnavigate the issue, all the while refusing to provide the documents.

The following government of the Kukuriku Coalition has continued in the same vein, leading GONG to file a complaint with the Information Commissioner in 2013. The Commissioner has allowed GONG’s complaint and ordered the Government to publish the information, to which the Government replied by appealing to the High Administrative Court with a claim that the Commissioner had exceed her authority. This year, the High Administrative Court has ruled in favour of the Government and overturned the Information Commissioner’s decision, leading to GONG’s current Constitutional complaint.

Right of access to information vs. data secrecy

It is not controversial that public bodies have the right to classify some information or make it secret, due to concerns of national security, vital national interests, independence, international relations etc.. However, regarding the public interest in this information and the need for public oversight of the work of the Government and public funds expenditures, a proportionality test and a public interest test are needed – the Information Commissioner had carried out both.

The High Administrative Court has ruled that the Information Commissioner had exceeded her authority by applying the wrong legal act – the Right of Access to Information Act instead of the Data Secrecy Act. The Court has expressed the opinion that the Information Commissioner has no authority to assess whether the owner of a piece of information – in this case, the Government – has decided to classify the information on valid grounds or not, only to inquire whether a public authority has conducted a proportionality test and a public interest test.

Bearing this interpretation in mind, then, GONG would like to ask – what is the purpose of the Information Commissioner? At the same time, the Court seems to be contradictory on one point – the Court has warned that the Commissioner only has the authority to establish the cases when the access to information might be limited to protect an interest that would be harmed by providing access. This is exactly what the Commissioner did in this particular case, finding that the interest in question would not be harmed and that there is no need to limit access to the information.

It could be argued whether the Information Commissioner has the right to conduct public interest tests for classified data. GONG upholds the view that Art. 16 of the Right of Access to Information Act unambiguously states that the Information Commissioner indeed has that authority and that the test is not limited to its formal aspect – whether the owner of an information has carried out a valid test. In addition, the Right of Access to Information Act, as an organic law, has a higher legal power than the Data Secrecy Act, while the Constitution provides for the public interest test. Therefore, GONG expects the Constitutional Court to overturn the high Administrative court’s ruling and put the case back into procedure.

Breaking up the stubborn culture of secrecy – a long-lasting process

If this does not happen, the new Right of Access to Information Act and the institution of the Information Commissioner will be effectively useless because previous classifications of data will be exempt from review, leading to the question – what is the workgroup on Amendments to the data Secrecy Act (that the Information Commissioner was not invited to) doing? Without these amendments, the Right of Access to Information Act will never be completely implemented, as GONG has repeatedly warned. The failure of the ruling majority to ensure funds for the work of the information Commissioner show how much attention is given to the transparency of public bodies.

The fact that GONG had not yet received replies to two complaints before the Constitutional Court prior to this one – both filed against the Government, but during the HDZ government’s term, more than three years ago – shows how much work remains to be done in dissolving the stubborn culture of secrecy in Croatia. Then too, the High Administrative Court had refused GONG’s complaint after the Government refused to publish the agendas of closed sessions of the Government in 2011 prior to April 15, and refused again to make public the register of entrances and exits from the Government’s offices on August 4, 2007, a day that would prove to be crucial in the events of the Fimi media affair.