INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY the RIGHT to ACCESS INFORMATION Informatologia, 52, 2019, 1-2, 1-8 1

Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE RIGHT TO ACCESS INFORMATION Informatologia, 52, 2019, 1-2, 1-8 1

INFO- 2200 UDK: 342.727(497.4)(497.5) Primljeno/Received:2019-03-12 Original Scientific Paper/Izvorni znanstveni rad

10.32914/i.52.1-2.1

INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCE- DURES DENY THE RIGHT TO ACCESS INFORMATION

KAŠNJENJE INFORMACIJE JE NEDOSTATAK PRAVDE: DUGAČKE PROCEDURE SPRIJEČAVAJU PRAVO NA PRISTUP INFORMACIJI

Jurij Toplak, Boštjan Brezovnik Faculty of Law, University of Maribor, Maribor, Slovenia Pravni fakultet, Sveučilište u Mariboru, Maribor, Slovenija

Abstract Sažetak European Court of Human Rights ruled in 2016 Europski sud za ljudska prava presudio je 2016. that the European Convention on Human Rights godine da Europska konvencija o ljudskim includes a right to access information held by pravima uključuje i pravo na pristup informaci- public authorities. While according to interna- jama u posjedu javnih vlasti. Dok prema tional documents the procedures for accessing in- međunarodnim dokumentima postupci za formation should be ‘rapid’, the courts have yet pristup informacijama trebaju biti „brzi“, sudovi to rule on what ‘rapid’ means and when the pro- tek trebaju odlučiti o tome što „brzo“ znači i kada cedures are so long that they violate rights of su postupci toliko dugi da krše prava onih koji those asking for information. This article anal- traže informacije. U članku se analizira duljina yses the length of proceedings in access to infor- postupaka u slučajevima pristupa informacijama mation cases in Slovenia and Croatia. It shows u Sloveniji i Hrvatskoj. Pokazuje se da ove dvije that these two countries do not have a system of zemlje nemaju sustav djelotvorne zaštite prava effective protection of rights because the author- jer vlasti mogu lako odgoditi objavljivanje infor- ities can easily delay disclosure of information for macija nekoliko godina. Tvrdi se da dugotrajni several years. It argues that lengthy procedures postupci krše pravo na pristup informacijama i violate the right to access the information and the slobodu izražavanja. Predstavljena su rješenja za freedom of expression. It then presents solutions poboljšanje pristupa postupcima informiranja for improving access to information procedures kako bi postali „brzi“. in order for them to become ‘rapid’.

Introduction ation, and the debate are disabled, voters cannot make an adequate and informed choice in Elections do not make a country democratic. elections. Therefore we cannot consider a soci- Democracy is much more than that. A demo- ety democratic if it hides government’s actions. cratic society enables its members to supervise If the State does not assure a rapid procedure, actions of the government, evaluate them, and there is no efficient or effective system of pro- discuss them. If a society hides government’s tection of human right. actions or activities, it disables the evaluation, the control, and the debate. Access to data on In this article we test whether Slovenia and Cro- government activities is a crucial element of atia assure rapid procedures in cases when pub- freedom of expression. If the control, the evalu- lic officials refuse to disclose information. We

ISSN 1330-0067 Coden: IORME7 Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE RIGHT TO ACCESS INFORMATION 2 Informatologia, 52, 2019, 1-2, 1-8 analyze the duration of all the access to infor- gime should be guided by the principle of max- mation cases Slovenian Supreme Court has imum disclosure, public bodies should be un- dealt with. In Croatia this is not possible be- der an obligation to publish key information, cause almost no cases came to the courts. We they must actively promote open government, show that in Croatia the cases get stuck with the and exceptions should be clearly and narrowly Information Commissioner. This article first de- drawn and subject to strict tests (Mendel 2008, scribes the freedom of information as an inter- 31-37). nationally recognized human right. It then anal- yses the length of proceedings in access to infor- European Convention on Human Rights mation cases in Slovenia and Croatia. It shows (ECHR) does not explicitly mention the free- that these two countries do not have a system of dom of access to information held by the gov- effective protection of rights because the au- ernment, but the European Court of Human thorities can easily delay disclosure of infor- Rights (ECtHR) has found violation of the Con- mation for several years. It argues that lengthy vention on several occasions before 2016 in procedures violate the right to access the infor- cases where data ought to be disclosed under mation and the freedom of expression. Finally domestic law and where withholding the infor- it presents solutions for improving access to in- mation resulted in breaching applicants’ free- formation procedures in order for them to be- dom of expression./5/ come ‘rapid’. In its landmark decision Magyar Helsinki Freedom of Information as a Human Right Bizottság v. Hungary, the Grand Chamber of the ECtHR in 2016 ruled that the ECHR guaran- Freedom of Information has been legally recog- tees a right to access the information held by the nized as a right in Sweden in Finland for over public authorities. According to the Court, the two centuries. In most of the world, however, it European convention “is a living instrument ... was included in the legislation within the past which must be interpreted in the light of pre- thirty years./1/ In many of them this right is sent-day conditions.”/6/ The Court relied on guaranteed by constitutions and by legislation, several different documents, which had guar- but not enforced in practice (Banisar 2006, Men- anteed the right to access information and es- del 2008, 43-154, Riekkinen and Suksi, 2015, 81- tablished that ECHR guaranteed this right, too, 202). Older international human rights instru- although the text of the convention did not ex- ments did not explicitly guarantee the right to plicitly mention this right. In both Youth Initia- access publicly held information, but interna- tive and Magyar Helsinki decisions, when de- tional organizations’ recent interpretations of fining the right, the court relied on the Joint these documents do recognize it as “a funda- Declaration by the United Nations Special Rap- mental human right” (Joint Declaration 2004)/2/ porteur on Freedom of Opinion and Expres- and according to the 2011 interpretation of the sion, the OSCE Representative on Freedom of UN Human Rights Committee, Article 19 of the the Media and the OAS Special Rapporteur on ICCPR “embraces a right of access to infor- Freedom of Expression of December 2004. This mation held by public bodies” (United Nations Joint Declaration reads, in the relevant part, as 2011)./3/ There is a general agreement among follows: leading scholars, that under international law governments are required to respect it as a basic “The right to access information held by public right (Mendel 2008, Bishop 2009, Hugelier 2010, authorities is a fundamental human right Peled and Rabin 2011, Janssen 2012, Riekkinen which should be given effect at the national and Suksi 2015). In Europe the right to access level through comprehensive legislation (for official information is legally recognized by the example Freedom of Information Acts) based Council of Europe and by the European Un- on the principle of maximum disclosure, estab- ion./4/ A proper Freedom of Information re- lishing a presumption that all information is

ISSN 1330-0067 Coden: IORME7 Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE RIGHT TO ACCESS INFORMATION RIGHT TO ACCESS INFORMATION Informatologia, 52, 2019, 1-2, 1-8 Informatologia, 52, 2019, 1-2, 1-8 3 analyze the duration of all the access to infor- gime should be guided by the principle of max- accessible subject only to a narrow system of decision (so called administrative silence), the mation cases Slovenian Supreme Court has imum disclosure, public bodies should be un- exceptions. … applicant can appeal to the Information Com- dealt with. In Croatia this is not possible be- der an obligation to publish key information, missioner. While Croatian legislation states that cause almost no cases came to the courts. We they must actively promote open government, Access to information is a citizens’ right. As a the Comissioner has to decide on a case within show that in Croatia the cases get stuck with the and exceptions should be clearly and narrowly result, the procedures for accessing infor- 30 days, Slovenian law does not have a similar Information Commissioner. This article first de- drawn and subject to strict tests (Mendel 2008, mation should be simple, rapid and free or provision. Slovenia’s first Information Commis- scribes the freedom of information as an inter- 31-37). low-cost.”/7/ sioner, a lawyer and former journalist Nataša nationally recognized human right. It then anal- Pirc Musar was appointed in 2004 and served yses the length of proceedings in access to infor- European Convention on Human Rights While international law uses the term “reason- two terms, followed by another lawyer, current mation cases in Slovenia and Croatia. It shows (ECHR) does not explicitly mention the free- able time” for other cases, for the access to in- Commissioner Mojca Prelesnik, who was ap- that these two countries do not have a system of dom of access to information held by the gov- formation issues uses the term “rapid”. The pointed in 2014. Croatia did not have an Infor- effective protection of rights because the au- ernment, but the European Court of Human term “rapid” requires much shorter adjudica- mation Commissioner until 2013, when the Par- thorities can easily delay disclosure of infor- Rights (ECtHR) has found violation of the Con- tion then the “reasonable time”. While in many liament appointed a law lecturer dr. Anamarija mation for several years. It argues that lengthy vention on several occasions before 2016 in other areas compensation can rectify the Musa. procedures violate the right to access the infor- cases where data ought to be disclosed under breaches and grievances, timing is essential in mation and the freedom of expression. Finally domestic law and where withholding the infor- access to information matters. Information de- Slovenian Information Commissioner is very it presents solutions for improving access to in- mation resulted in breaching applicants’ free- layed often means that the right is irreparably strong and well known body, partly because formation procedures in order for them to be- dom of expression./5/ denied. both individuals who have held the position come ‘rapid’. over the past decade, have been very active and In its landmark decision Magyar Helsinki Access to Information Procedures in Slovenia vigorous defenders of freedom of information. Freedom of Information as a Human Right Bizottság v. Hungary, the Grand Chamber of and Croatia Their decisions have been regularly and widely the ECtHR in 2016 ruled that the ECHR guaran- covered by the media, and were usually well re- Freedom of Information has been legally recog- tees a right to access the information held by the In order for the procedures to be rapid, the leg- ceived by the public and respected by the gov- nized as a right in Sweden in Finland for over public authorities. According to the Court, the islature has to enact proper legal framework, ernment. Commissioner’s office has a staff of 34 two centuries. In most of the world, however, it European convention “is a living instrument ... and then the procedure has to be fast in all the fully employed persons./9/ Croatian Commis- was included in the legislation within the past which must be interpreted in the light of pre- phases: at the public body holding the infor- sioner, on the other hand, is struggling with thirty years./1/ In many of them this right is sent-day conditions.”/6/ The Court relied on mation, at the Information Commissioner, and lack of resources. Media reported about her guaranteed by constitutions and by legislation, several different documents, which had guar- in the court. complaints about having only five employees but not enforced in practice (Banisar 2006, Men- anteed the right to access information and es- and insufficient funds. The first media coverage del 2008, 43-154, Riekkinen and Suksi, 2015, 81- tablished that ECHR guaranteed this right, too, Constitutions of both Slovenia and Croatia of the Croatian Commissioner’s decision ap- 202). Older international human rights instru- although the text of the convention did not ex- guarantee a constitutional right to access infor- peared in summer 2016, when she ordered that ments did not explicitly guarantee the right to plicitly mention this right. In both Youth Initia- mation held by public authorities./8/ Both coun- Cabinet and the National Bank should disclose access publicly held information, but interna- tive and Magyar Helsinki decisions, when de- tries have a similar system of protection of the certain information and both bodies ignored tional organizations’ recent interpretations of fining the right, the court relied on the Joint right to access public information. In both coun- her decision./10/ these documents do recognize it as “a funda- Declaration by the United Nations Special Rap- tries, any individual or legal entity can request mental human right” (Joint Declaration 2004)/2/ porteur on Freedom of Opinion and Expres- the information by a simple informal written re- In both countries the decision of the Infor- and according to the 2011 interpretation of the sion, the OSCE Representative on Freedom of quest and requests submitted by email are per- mation Commissioner can be challenged in ju- UN Human Rights Committee, Article 19 of the the Media and the OAS Special Rapporteur on mitted. In Croatia, a public body has to decide diciary. In Slovenia the Administrative Court ICCPR “embraces a right of access to infor- Freedom of Expression of December 2004. This within 15 days. It has to either disclose the in- reviews the Commissioner’s decisions and fur- mation held by public bodies” (United Nations Joint Declaration reads, in the relevant part, as formation or issue a written decision, which ex- ther challenge to the Supreme Court is possible. 2011)./3/ There is a general agreement among follows: plains why the information was not disclosed. In Croatia, Commissioner’s decision can be leading scholars, that under international law Slovenian public authorities have to do so ‘im- challenged at the Administrative Court, the de- governments are required to respect it as a basic “The right to access information held by public mediately’, and when ‘immediate’ decision is cisions of which are final. While Slovenian law right (Mendel 2008, Bishop 2009, Hugelier 2010, authorities is a fundamental human right not possible, they have to decide within 20 does not set any time limits for the courts, Cro- Peled and Rabin 2011, Janssen 2012, Riekkinen which should be given effect at the national working days, which equals to about a month. atian law states that its court has to issue a deci- and Suksi 2015). In Europe the right to access level through comprehensive legislation (for When they need more time to collect infor- sion within 90 days. If one feels that their con- official information is legally recognized by the example Freedom of Information Acts) based mation, in both Slovenia and Croatia public au- stitutional rights have been violated, in both Council of Europe and by the European Un- on the principle of maximum disclosure, estab- thorities can prolong time for few more weeks. countries they may ask the Constititional Court ion./4/ A proper Freedom of Information re- lishing a presumption that all information is In both countries in case that access to infor- to review the constitutionality of the courts’ de- mation is denied, or the body does not issue any cisions.

and 11 months, respectively. Proceedings before both courts, meaning from the moment the Length of Proceedings in Slovenia lawsuit was filed until the Supreme Court decision was issued, lasted on average 28 months. This part of the article tests how timely Slove- With the Administrative Court, the longest of nian freedom of information procedures are the 18 proceedings lasted over two years and when the body holding the data tries to prevent with the Supreme Court they lasted over a year data disclosure by all legal means. We tested the and a half. On average, persons requesting pub- time spent in all three stages of the proceedings: lic data waited two years and ten months to with the government body withholding the reach a Supreme Court decision and to receive data, with the Information Commissioner, and the data. On one occasion they waited over four with the courts. Until now 18 freedom of infor- years. Supreme Court continuously ruled that mation court cases reached a final Supreme government bodies do not need to disclose the Court decision. We analyzed the time spent by data until the Supreme Court reaches its deci- each body to reach a decision in each of these sion, even if Administrative Court asked them cases. to do so./12/ It should be noted that these courts do not hold any hearings. They decide based on In 13 out of these 18, the government bodies written documents submitted by the parties. holding the data denied the access and in most cases they did so before the 20-working-day The time needed for the courts to decide access deadline. In five cases the bodies did not re- to information cases is getting longer. In 2009 spond to the request. After the appeal, the In- the average proceedings, from the request until formation Commissioner’s proceedings lasted the Supreme Court decision, lasted two years between one and six months. Commissioner’s and six months (30 months). By 2013 proceed- proceedings are becoming quicker every ings became slightly shorter, but in recent years year./11/ they are becoming longer every year. The last five proceedings lasted on average 43 months or If authorities do not respond to the request for three years and seven months. Even if we disre- information within 20 working days, a re- gard 13 months in one of the proceedings, in quester may ask the Commissioner to react. which the requester contributed to the lengthy Commissioner usually reacts within one or two proceedings by not reacting earlier to the non- days. It usually calls the appropriate body by responsive government body, the average pro- telephone, explains the relevant legislation, ceedings lasted long 41 months. The chart pre- consults with any issue the body may have, and sents average lasting of the last five proceedings asks them to examine the request. When the from the day of the request until the day of the body still does not decide on the request, the Supreme Court decision. Commissioner - usually within a day or two - asks the body to immediately examine the re- A case of schools’ statistical data shows how se- quest. According to the Commissioner, non-re- verely constitutional rights to freedom of ex- sponding bodies are rare. pression are denied by the slow proceedings. In 2012 a group of parents, civil society represent- While data-holding bodies and the Information atives, and academics, including the author of Commissioner review the requests and appeals this article, asked for public disclosure of 2011 in a timely manner, the courts are much slower. school-level statistical data of yearly external Under Art. 23 of the Access to Information Act, tests for Slovenian primary and secondary courts have to rule in freedom of information schools. The government refused to disclose the cases ‘urgently and with priority’. An average data until the Administrative Court in 2014 is- time spent before the Administrative Court and sued three decisions requiring the government the Supreme Court was, however, 15 months to release the data. The government released the 2011 data in 2014, when the data was out of

and 11 months, respectively. Proceedings be- date. A group immediately asked for a new the authorities’ refusals to disclose the infor- fore both courts, meaning from the moment the data of 2013 and 2014 tests, but the government mation, Croatian Information Commissioner is Length of Proceedings in Slovenia lawsuit was filed until the Supreme Court deci- refused to release them and as of December even slower. In a sample of first ten decisions of sion was issued, lasted on average 28 months. 2018 the court proceedings are still ongoing./13/ December 2016, time needed to decide on an ap- This part of the article tests how timely Slove- With the Administrative Court, the longest of The government will release the 2013 and 2014 peal varied between three and 24 months with nian freedom of information procedures are the 18 proceedings lasted over two years and data probably in 2018 or in 2019, but they will an average of 14 months. when the body holding the data tries to prevent with the Supreme Court they lasted over a year be out of date. If parents will ask for new data, data disclosure by all legal means. We tested the and a half. On average, persons requesting pub- they will probably get an out-of-date data few Under Croatian law, the Administrative Court time spent in all three stages of the proceedings: lic data waited two years and ten months to years later. After the recent proceedings lasted has to decide within 90 days after the lawsuit with the government body withholding the reach a Supreme Court decision and to receive 27 months, requesters officially asked the Ad- against a Commissioner’s decision is filed./16/ data, with the Information Commissioner, and the data. On one occasion they waited over four ministrative Court to expedite its proceedings. Lawsuits are usually filed within a month of a with the courts. Until now 18 freedom of infor- years. Supreme Court continuously ruled that The Court’s president, however, found no vio- Commissioner’s decision. Administrative mation court cases reached a final Supreme government bodies do not need to disclose the lation and ruled that the proceedings were car- Court in most cases follows or slightly passes Court decision. We analyzed the time spent by data until the Supreme Court reaches its deci- ried out ‘urgently and with priority’/14/ and his the 90-day deadline. Among the eight deci- each body to reach a decision in each of these sion, even if Administrative Court asked them decision was confirmed by the president of the sions, issued in 2017 so far, six decisions were cases. to do so./12/ It should be noted that these courts Supreme Court. made in less than five months after the Com- do not hold any hearings. They decide based on missioner’s decision, one was made within six In 13 out of these 18, the government bodies written documents submitted by the parties. With three steps - an administrative appeal, a and one within eight months. Average time be- holding the data denied the access and in most lawsuit at the Administrative Court, and the ap- tween the Commissioner’s and Court’s deci- cases they did so before the 20-working-day The time needed for the courts to decide access peal to the Supreme Court - a government en- sions is four and half months./17/ deadline. In five cases the bodies did not re- to information cases is getting longer. In 2009 tity can block the disclosure of information for spond to the request. After the appeal, the In- the average proceedings, from the request until several years. Such a procedure is not ‘rapid’ Constitutional Court of Croatia examined 15 formation Commissioner’s proceedings lasted the Supreme Court decision, lasted two years and a system allowing such procedures is inap- constitutional appeals against the Administra- between one and six months. Commissioner’s and six months (30 months). By 2013 proceed- propriate, unconstitutional, and it lacks effective Court decisions. In all 13 decisions issued proceedings are becoming quicker every ings became slightly shorter, but in recent years tive protection of the constitutional right to ac- before April 2016, the appeals were rejected year./11/ they are becoming longer every year. The last cess public data. without any discussion about freedom of infor- five proceedings lasted on average 43 months or mation. In the last two decisions, however, the If authorities do not respond to the request for three years and seven months. Even if we disre- Length of Proceedings in Croatia court annulled Administrative Court rulings information within 20 working days, a re- gard 13 months in one of the proceedings, in and returned the cases to a government body, quester may ask the Commissioner to react. which the requester contributed to the lengthy This part of the article examines length of pro- which was withholding the data. Interestingly, Commissioner usually reacts within one or two proceedings by not reacting earlier to the non- ceedings at the Croatian bodies holding the in these two decisions the court relied on the days. It usually calls the appropriate body by responsive government body, the average pro- data, at the Information Commissioner, and at 2009 European Court of Human Rights deci- telephone, explains the relevant legislation, ceedings lasted long 41 months. The chart pre- Croatian courts. sion/18/ in which it acknowledged a very nar- consults with any issue the body may have, and sents average lasting of the last five proceedings row right to access information. This confirms asks them to examine the request. When the from the day of the request until the day of the Croatian authorities often do not respond to the that the scope of the constitutional right in Cro- body still does not decide on the request, the Supreme Court decision. requests for information. As a test, we submit- atia is only as narrow as the right protected un- Commissioner - usually within a day or two - ted six requests with six different bodies and der the ECHR. The protection in Croatia is asks the body to immediately examine the re- A case of schools’ statistical data shows how se- none of them responded within the 15 day therefore - for now - much lower than in most quest. According to the Commissioner, non-re- verely constitutional rights to freedom of ex- deadline or within several weeks after the dead- of other European democracies. The proceed- sponding bodies are rare. pression are denied by the slow proceedings. In line./15/ ings in the 15 examined proceedings before the 2012 a group of parents, civil society represent- Constitutional Court lasted between 6 and 58 While data-holding bodies and the Information atives, and academics, including the author of Just like in Slovenia, when authorities are silent months with an average of 28 months. Commissioner review the requests and appeals this article, asked for public disclosure of 2011 on a request, a requester in Croatia can ask the in a timely manner, the courts are much slower. school-level statistical data of yearly external Commissioner to react. Contrary to the Slove- The procedure before the Croatian Constitu- Under Art. 23 of the Access to Information Act, tests for Slovenian primary and secondary nian Commissioner, who reacts within a day or tional Court is very different from the proce- courts have to rule in freedom of information schools. The government refused to disclose the two, Croatian Commissioner is much slower. It dure before the Supreme Court of Slovenia. cases ‘urgently and with priority’. An average data until the Administrative Court in 2014 is- took her between 6 and 18 months to ask the si- While the decision of the Croatian High Admin- time spent before the Administrative Court and sued three decisions requiring the government lent body to examine our requests. When the istrative Court is final and data has to be re- the Supreme Court was, however, 15 months to release the data. The government released Commissioner is asked by a requester to review leased, in Slovenia both parties can appeal to the 2011 data in 2014, when the data was out of

ISSN 1330-0067 Coden: IORME7 ISSN 1330-0067 Coden: IORME7 Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE RIGHT TO ACCESS INFORMATION 6 Informatologia, 52, 2019, 1-2, 1-8 the Supreme Court and the data will not be dis- any response. In July 2014 it became obvious closed until the Supreme Court decides. Pro- that the Centre does not respect the legislation ceedings at the Croatian Constitutional Court and the researcher asked the Centre to send him can only be innitiated by a person claiming to copies of several schools-related documents, be a victim of a human right violation. Govern- which, according to the legislation, the Centre ment bodies can therefore not appeal against clearly holds. He never received a response so the Administrative Court ruling. In both cases he forwarded the requests several times to where the Croatian Constitutional Court found email addresses of many Centre’s employees violation, however, court did not rule that data including the director and a person designated should be disclosed. It marely returned the to handle the freedom of information requests. cases to the lower bodies. These two cases have He never received a response. The Information lasted 50 and 56 months, respectively, and re- Commissioner reacted and urged with the Cen- questers still did not yet get access to the data tre several times to handle researcher’s re- they requested. quests. On January 2015 the Centre sent a short letter to the researcher saying that based on the Croatian authorities’ dealing with requests for Ministry’s order, schools’ statistical data is not schools’ statistical data show how ineffective publicly available. It also told the researcher the proceedings are. In 2013 Croatian media that he cannot obtain copies of the reports, be- published news on Croatian secondary schools’ cause they are sent only to the parliament and external tests results. According to the article, a to the Cabinet of Ministers. On December 2016 government agency called The National Centre the researcher received the letter and appealed for External Evaluation of Education (hereinaf- against it. In early June 2017 the Information ter ‘the Centre’) (Nacionalni centar za vanjsko Commissioner asked the Centre to follow the vrednovanje obrazovanja NCVVO) analyzed law and to either disclose the data or to reject the external tests’ results and awarded the Za- the request with a formal administrative deci- greb First Gymnasium as a school with the sion. The Commissioner asked the Centre to de- highest average score. In February 2014 an aca- cide on the request within 15 days. As of De- demic researcher asked the Centre to send him cember 2017 the Centre has not yet issued a de- the analysis mentioned in the article and the av- cision. erage score for each Croatian secondary school. The Centre responded that he should have used In early November 2016 another researcher an official form to file such a request. The re- asked three different schools to send him aver- searcher told the Centre that no such form exists age scores on external ‘matura’ examination. It and asked the Centre to send the data. The Cen- is a simple information each school holds and tre responded that he failed to include his ad- these are extremely simple requests to handle. dress in the request. The researcher told the None of the schools sent the data. They, how- Centre that he did not fail to include his address ever, responded that Centre should manage the and asked again the Centre to send the data, to requests and they forwarded the requests to the which he did not receive any responses or the Centre. In early December 2016, after the 15 day data. In March 2014 he sent several inquiries to deadline passed, he called the Centre by phone the Centre, to which the Centre did not re- several times and talked to the director’s secre- spond. He also sent a complaint because of Cen- tary. She confirmed the receipt of the requests tre’s administrative silence. In June 2014 he and she confirmed that she talked to the direc- asked the Centre again to send him the same tor about them, but could not give any further data and to send him the original data used to information. He appealed to the Commissioner calculate the average schools’ scores. He also and in February 2017 the Commissioner urged asked for anonymized copies of all freedom of the Centre to handle the requests. On Febrary information requests the Centre received within 2017 this researcher, hoping that the Centre the last year. He asked the Centre to decide on might have started following the laws within his request for several times but never received the past two years, sent the same request that

ISSN 1330-0067 Coden: IORME7 Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE Jurij Toplak, Boštjan Brezovnik: INFORMATION DELAYED IS JUSTICE DENIED: LENGTHY PROCEDURES DENY THE RIGHT TO ACCESS INFORMATION RIGHT TO ACCESS INFORMATION Informatologia, 52, 2019, 1-2, 1-8 Informatologia, 52, 2019, 1-2, 1-8 7 the Supreme Court and the data will not be dis- any response. In July 2014 it became obvious the abovementioned researcher had sent in July rights protection in Europe, if the Court decides closed until the Supreme Court decides. Pro- that the Centre does not respect the legislation 2014. On June 2017 the Centre issued a formal that lengthy access to information procedures ceedings at the Croatian Constitutional Court and the researcher asked the Centre to send him adminstrative decision on the researcher’s re- breach the Convention rights. can only be innitiated by a person claiming to copies of several schools-related documents, quests submitted in November 2016 and in Feb- be a victim of a human right violation. Govern- which, according to the legislation, the Centre ruary 2017. It was the first Centre’s formal ad- Notes ment bodies can therefore not appeal against clearly holds. He never received a response so ministrative decision after it had received a the Administrative Court ruling. In both cases he forwarded the requests several times to number of requests in a period of over three /1/ For a history of access to public documents and where the Croatian Constitutional Court found email addresses of many Centre’s employees years. In the decision it rejected the requests be- information in Finland in Sweden, and for ex- cerpts of the constitutions from around the violation, however, court did not rule that data including the director and a person designated cause “the large volume of data and the com- world, see Riekkinen, M. & Suksi, M. (2015). Ac- should be disclosed. It marely returned the to handle the freedom of information requests. plexity of requests would burden the work of cess to Information and Documents as a Human cases to the lower bodies. These two cases have He never received a response. The Information the Centre” and requests represent “abuse of Right. Turku: Åbo Akademi University, 6-25, 181- lasted 50 and 56 months, respectively, and re- Commissioner reacted and urged with the Cen- the right to access access”. It also says that the 202. questers still did not yet get access to the data tre several times to handle researcher’s re- Centre did not receive any of the researcher’s /2/ Joint Declaration by the UN Special Rapporteur they requested. quests. On January 2015 the Centre sent a short requests before February 2017 and that “it will on Freedom of Opinion and Expession, the OSCE letter to the researcher saying that based on the analyse the circumstances how this could have Representative on Freedom of the Media and the Croatian authorities’ dealing with requests for Ministry’s order, schools’ statistical data is not happened.” The researcher appealed the Cen- OAS Special Rapporteur on Freedom of Expres- schools’ statistical data show how ineffective publicly available. It also told the researcher tre’s decision and as of December 2017 the mat- sion, 6 December 2004. /3/ UN Human Rights Committee, General Comment the proceedings are. In 2013 Croatian media that he cannot obtain copies of the reports, be- ter is still between the Commissioner and the No. 34, Article 19: Freedoms of opinion and ex- published news on Croatian secondary schools’ cause they are sent only to the parliament and NCVVO. pression, UN doc. CCPR/C/GC/34, para. 18. external tests results. According to the article, a to the Cabinet of Ministers. On December 2016 /4/ Article 2 of the Council of Europe Convention on government agency called The National Centre the researcher received the letter and appealed Because the Information Commissioner is so Access to Official Documents, 2009, and Article for External Evaluation of Education (hereinaf- against it. In early June 2017 the Information slow in reacting, because she often returns the 42 of the Charter of Fundamental Rights of the ter ‘the Centre’) (Nacionalni centar za vanjsko Commissioner asked the Centre to follow the matter to a lower level without deciding on a European Union. vrednovanje obrazovanja NCVVO) analyzed law and to either disclose the data or to reject substance, and because she lets the government /5/ See Társaság a Szabadságjogokért v. Hungary the external tests’ results and awarded the Za- the request with a formal administrative deci- bodies ignore her decisions, citizens’ constitu- (no.37374/05, § 14, April 2009, hereinafter re- greb First Gymnasium as a school with the sion. The Commissioner asked the Centre to de- tional rights are being violated. They cannot ac- ferred to as “Társaság”) or Youth Initiative for Hu- man Rights v. Serbia (no.48135/06, 25 June 2013). highest average score. In February 2014 an aca- cide on the request within 15 days. As of De- cess the government information and cannot /6/ The living instrument doctrine evolved since the demic researcher asked the Centre to send him cember 2017 the Centre has not yet issued a de- use their freedom of speech. Tyrer v. the United Kingdom (25 April 1978, § 31, the analysis mentioned in the article and the av- cision. Series A no. 26) and was discussed at length in erage score for each Croatian secondary school. Conclusions the Magyar Helsinki’s majority opinion as well as The Centre responded that he should have used In early November 2016 another researcher in its concurring and dissenting opinions. an official form to file such a request. The re- asked three different schools to send him aver- Under international law, freedom of infor- /7/ Cited in Youth Initiative for Human Rights v. Serbia searcher told the Centre that no such form exists age scores on external ‘matura’ examination. It mation procedures should be rapid. In both (no.48135/06, 25 June 2013), para 14. and asked the Centre to send the data. The Cen- is a simple information each school holds and countries, Slovenia and Croatia, there are seri- /8/ Art. 38, Para 4 of the Constitution of Croatia and tre responded that he failed to include his ad- these are extremely simple requests to handle. ous obstacles present for the applicants in both Art. 39, Para 2 of the Constitution of Slovenia. /9/ The Information Commissioner of Slovenia, The dress in the request. The researcher told the None of the schools sent the data. They, how- legislation and practice. In both countries there Yearly Report 2017, https://www.ip-rs.si/o- Centre that he did not fail to include his address ever, responded that Centre should manage the is no effective mechanism to assure the appli- pooblascencu/informacije-javnega-znacaja/letna- and asked again the Centre to send the data, to requests and they forwarded the requests to the cants to access the data if the authorities choose porocila/ which he did not receive any responses or the Centre. In early December 2016, after the 15 day not to share the data. In the cases of administra- /10/ Jutarnji list. HNB će od Visokog upravnog suda data. In March 2014 he sent several inquiries to deadline passed, he called the Centre by phone tive silence, Slovenian Commissioner reacts zatražiti da preispita odluku povjerenice za in- the Centre, to which the Centre did not re- several times and talked to the director’s secre- within a day or two, while it takes a several formiranje, 26. 7. 2016. spond. He also sent a complaint because of Cen- tary. She confirmed the receipt of the requests months for the Croatian Commissioner to react. /11/ Information Commissioner’s website includes a tre’s administrative silence. In June 2014 he and she confirmed that she talked to the direc- When it comes to the courts, Croatian adminis- list of cases under review. At the time of writing asked the Centre again to send him the same tor about them, but could not give any further trative court is faster. It decides within three of this article, all undecided cases were with the Commissioner less than three months. data and to send him the original data used to information. He appealed to the Commissioner months. Slovenian administrative court, on the /12/ See for example Decision of the Supreme Court calculate the average schools’ scores. He also and in February 2017 the Commissioner urged other hand, often decides after a year or two. of Slovenia X Ips 338/2016 of 7 Dec 2016. asked for anonymized copies of all freedom of the Centre to handle the requests. On Febrary The matter of lengthy freedom of information /13/ Cdministrative Cour of Slovenia decision I U information requests the Centre received within 2017 this researcher, hoping that the Centre procedures is currently pending before the EC- 1167/2014 of 28 Sept 2015 and I U 1878/2015 of 9 the last year. He asked the Centre to decide on might have started following the laws within tHR. It would be highly beneficial for the trans- Nov 2016. his request for several times but never received the past two years, sent the same request that parency of the government, and for the human /14/ Administrative Court of Slovenia decision SuNP 7/2016 of 6 Dec 2016.

/15/ Requests were sent to the Zagreb District Court, 3. Bishop, C. A. (2009). Internationalizing the right Pula District Court, NCVVO, Varaždin Seconday to know: Conceptualizations of access to infor- School, Đakovo Secondary School, Dubrovnik mation in human rights law. Chapel Hill: Univer- Secondary School. sity of North Carolina. /16/ Article 26. Zakona o pristupu informacijama 4. Hugelier, S. (2010). Freedom of Expression and (NN 85/15). Transparency: Two Sides of One Coin. Jura Fal- /17/ All the decisions of the Commissioner and the conis Jg., 47(1), 61-91. courts are available at the Information Commis- 5. Janssen, K. (2012). Open government dana and sioner’s website: the right to information: opportunities and obsta- http://tom.pristupinfo.hr/pregledsud.php cles. The Journal of Community Informatics, 8(2). /18/ Társaság a Szabadságjogokért v. Hungary, 37374/05, Available at: http://ci-journal.net/in- of 14 April 2009. dex.php/ciej/article/view/952 (June 20, 2018). 6. Mendel, T. (2008). Freedom of information: a Literature comparative legal survey. Paris: UNESCO. 7. Peled, R. & Rabin, Y. (2011). The constitutional 1. Banisar, D. (2006). Freedom of Information right to information. Columbia Human Rights Law around the World 2006. Privacy International. Review. 42, 357-401. 2. Available at: http://www.freedominfo.org/docu- 8. Riekkinen, M. & Suksi, M. (2015). Access to Infor- ments/global_survey2006.pdf (June 18, 2018). mation and Documents as a Human Right. Turku: Åbo Akademi University.

ISSN 1330-0067 Coden: IORME7