The Commissioner and trust have a lot in common apart from the obvious characteristic: the Commissioner, often referred to as a Trustee, is “trusted” with something. When something is “trusted” to someone, then trust is placed in that person. An old saying refers to both the Commissioner and trust in Serbia: it is hard to build and easy to destroy. When it is destroyed, it is never properly mended.
Such puns sometimes hide wisdom blurred by the everyday despair, but still, we should take a look at the Commissioner for Information of Public Importance and Personal Data Protection and at trust itself through the perspective of facts and then we should inspect who trusts the Commissioner. Who (does not) trusts whom and to what extent?!
According to available annual reports of the Commissioner for Information of Public Importance and Personal Data Protection, the citizens recognised the significance of the right to free access to information and in the first year of the implementation of the Law, they addressed public authorities requesting information about their work in more than 2,000 cases (2005). 14 years after the adoption of the Law, the number of requests that citizens, media, researchers, civil society organisations and other entities sent to all public authorities considerably increased. In 2017, public authorities responded to over 31,000 requests. It convenes to emphasise that this datum is incomplete as it includes only one third of public authorities. Bearing in mind all these facts, it is worth to mention the estimation that public authorities dealt with more than 100,000 requests filed by the citizens in 2017. In 2018 – the same story, yet again, only one third of authorities that have the obligation to submit their reports to the Commissioner did so. On the basis of the submitted reports, there were 24,331 requests, which says a lot about the extent to which the citizens use the Law on Free Access to Information of Public Importance. They use it so much, that public authorities simply do not have “capacities” to notify the Commissioner thereof.
Now let’s see to what extent the citizens “use” the institution of the Commissioner. It should be kept in mind that the Commissioner’s office does not get formally involved in the very process of exercising the right before the complaint is initiated and therefore there is no precise information that would give us an answer as to how many citizens participate in this process and how much they use this right. Nonetheless, if we analyse the annual reports of the Commissioner from the last few years, we can conclude that the citizens care very much about this right and that they often use it in practice. In the last five years, the citizens used their right to complain in this process and addressed the Commissioner in more than 11,000 cases.
If we examine the most recent data, in 2018, the Commissioner dealt with 3,086 complaints from the previous period and had a total of 6,432 complaints filed by the citizens. 3,974 were completed which was 12.9% more than in 2017. In the structure of authorities against which the complaints were lodged, there was a majority of ministries and other public authorities and organisations with a total of 1,846 complaints (200 more than in 2017).
In general, a large number of complaints is a confirmation of the conclusion that the right to access to information is hard to achieve without filing a complaint and the Commissioner’s involvement, which is, at the same time, a confirmation of the trust in the work of this independent public institution. Therefore, there is an overt continuity of the citizens’ trust in this institution.
To what extent do other institutions, public authorities, trust the Commissioner? On the basis of the available data from the Commissioner’s report for 2018, the situation in the area of free access to information of public importance is getting worse. When it comes to the protection of rights efficiency degree, it was 96% in 2015, 92% in 2016, 93% in 2017, and 89% in 2018. What is the “efficiency degree”? It is the extent to which competent institutions act according to the Commissioner’s decisions.
We can add the fact that from year to year the public remains deprived from information regarding important economic moves of the state and the allocation of major financial or material resources and that in 2017 the number of authorities that voluntarily execute the Commissioner’s decisions concerning the payment of imposed fines, i.e. penalties drastically dropped. The percentage of these authorities was only 27.1% in 2017, while it was 73.5% in 2016 (Institutions/authorities ignoring requests for payment).
Translated into a simpler language – what is important but secret, shall become even more secret by a decision of political elites. Authorities that are held to pay fines, simply do not do it and their number keeps rising. Can anyone make them pay?
Formally yes, in practice – no. Since the implementation of the new Law on Administrative Procedure (June 2017), the execution of the Commissioner’s decisions has practically become unenforceable. The reason for this lies in the fact that authorities declare themselves incompetent in the process of determining annual income of the taxpayers and the potential payment that should occur later in the procedure (primarily the National Bank of Serbia, the Ministry of Finance, the Treasury Administration, but also courts and enforcement officers). As a consequence, the implementation of the Law is left to the good will of the authorities, i.e. to whether the authorities wish to respond to filed requests or not.
The next conclusion is therefore that public authorities do not trust the Commissioner. And now we get to an interesting “vicious circle”: citizens trust the Commissioner, and generally do not trust public authorities, while public authorities do not trust the Commissioner (research have been showing the same trend for years). This “vicious circle“ completes the conduct of the executive power towards this institution. For four years in a row, the annual report on the work of the Commissioner has not been examined in the National Assembly. Besides, the Government of the Republic of Serbia has not acted for seven years in a row in a case for which the Commissioner requested help for the execution of their decisions (pursuant to article 28 of the Law on Free Access to Information of Public Importance). In 2017, the Commissioner filed a total of 43 requests to secure the enforcement of a decision. Since 2010, the total number of filed requests for help in the process of decision enforcement has been 173. And – nothing.
On this occasion, I shall not list all the “immeasurable” undermining of the reputation and credibility of the Commissioner, which came from different representatives of the government, nor shall I talk about the process of selecting a new Commissioner, which lasted for 6 months, for reasons known only to the ruling structures. It is enough to make a simple conclusion – the state has no trust in the Commissioner, nor has it ever had.
It would not foresee an indefinite deadline for, let’s say, the selection of a new Commissioner in the Law on Free Access to Information of Public Importance. Our country could have seen how our neighbours regulated this item (Croatia: “No later than six months prior to the end of the Commissioner’s mandate, or no later than 30 days from the end of their duties due to other reasons, the Committee for the Constitution, Rules of Procedure and Political System of the Croatian Parliament shall announce a public invitation for the delivery of candidacies for appointment of the Commissioner”).
It would not behave in a way it has been behaving for so many years, even decades.
The politics would not have the upper hand over professionals, nor the politicians’ will over the citizens’ trust.
It would not allow that in all European Commission reports the Commissioner be constantly mentioned in the context of insufficient resources, inexistent securing of enforcement of decisions passed on by the Commissioner, the lack of response of the institution to “sensitive” information regarding privatisations and other “sensitive” business matters.
At the moment, it seems that trust is “cheap” goods, easily traded by ruling parties and those yearning for power. However, the market is unpredictable, and the history teaches us that as soon as citizens start trusting more cautiously, trust itself will become “more expensive”. After all, as in the everyday life, we trust the one who justifies our trust.
We trust the Commissioner’s institution and this state should therefore be proud and not dreadfully ashamed and uneasy. Our task is to avoid repetition of an already heard story about institutions in this region. They are built, they acquire reputation, “democratic hope” sprouts, trust blooms only to be followed by a credibility nosedive and the return to the grey zone of mistrust.
By preserving institutions and democratic legacies, it is up to us to direct Serbia towards information (#SrbijaDoInformacija) and not towards Tokyo (“Srbija do Tokija” – slogan and catch-phrase dating back to the early 1990s. In 1991, Serbian (then-Yugoslav) football club Red Star Belgrade won the European Cup and the worldwide title in Tokyo).
This text has been prepared by Pavle Dimitrijević (CRTA) within the project “Rule of Law Reform in the Western Balkans: Reinventing the Rules of the Game” implemented by Politikon Network, in cooperation with CRTA and Tim Institute, and with the support of the European Fund for the Balkans (EFB).