Standard 3.2.2. Public Access to Draft Policies and Laws

Legislation

The right to access public information is a guaranteed constitutional right according to Article 41. In 2019 got completed the amendment process and entered into force the Law on Access to Public Documents, started in 2017. The new law has further advanced forms and procedures to access public documents while requires from each institution to publish lists of documents in disposal. Each institution is required to update its archives and to proactively publish new documents. However, the current law does not require publishing of draft documents in procedure. Procedures and mechanisms for access to publish documents/information remain clear as well as monetary sanctions for civil servants and institutions breaching the legal requirements for access to publish information. An Administrative Instruction on the content of websites of public institutions, adopted in May 2015, obliges publication of the Annual Work Plans and draft normative acts for the purpose of public consultations. By the end of 2018 the Government launched the open data portal. Public officials have been assigned and trained, while the platform is considered a step forward to increase CSOs and general public access to official data. Public institutions should answer a request for access to public information/documents within 7 days. Denied requests should be accompanied by detailed reasoning. If the information/document required entails information that might endanger life or personal freedom, an answer has to be provided within 48 hours.

0 – 20 Fully disabling environment20 – 40 Disabling environment
40 – 60 Partially enabling environment60 – 80 Enabling environment
80 – 100 Fully enabling environment

In cases when information/documents required have to be collected from more than one source, then the institution is allowed to have 15 extra days to provide an answer. When a public institution does not have the information but has the knowledge of the institution who has it, should inform the applicant within 5 days from the day of receiving a request. If neither has the information nor the knowledge of the institution in disposal of the document, the law provides 7 days to inform the issuer of the request. Grounds for refusing access to public documents are related to national security, private and personal information, commercial confidentiality etc. The Information and Privacy Agency has the executive power to issue fines in cases of breaching requirements set by the law. Monetary fines range from EUR 3,000 – 10,000 if a request has been denied in different grounds than those stipulated by the law. Public institutions that do not provide an answer at all may be subjected to fines ranging from EUR 1,000 – 3,000.

Practice

The online platform of public consultation launched in February 2017, enables participation of both CSOs and general public. Whereas government units can publish draft annual plans, strategic documents, public policies, laws and other secondary legislation. All of the above mentioned documents need to be consulted with CSOs and general public from the early stage of development. In addition, Kosovo Assembly has launched its Electronic Legislation Monitoring System that enables access and information over documents during each phase of the policy drafting process. The official gazette provides CSOs and the public with the opportunity to have free of charge access to adopted legislation. KCSF’s monitoring report of public consultation process shows a wide discrepancy between the publication of draft-proposals on the Online Platform and the Institutions’ respective official web-sites. Even though obligated to publish on their websites draft-proposals that are up for consultations, that has been the case in only 13% of monitored draft-proposals as opposed to the 97% rate at which they have been published on the Online Platform. Thirty-three of surveyed CSOs have asked for access to public information/documents during the last year. From the total, 12 organizations have received information/documents within the stipulated legal deadlines, whereas 16 of them received information behind the prescribed time-limit. Five CSOs have not received an answer over the request to gain access to public information/documents.

Requests for access to public information were utilized for purposes of this report. A comparison between the central and local level of government shows that in both levels public information is not provided within the legal limit. Two out of six public institutions in the central level provided information on time, meanwhile only the Office of Prime Minister provided the Decision that allows access to public information/documents. Only one third of the municipalities replied within the prescribed time limit, one of them provided the Decision that grants access to the public information. However, requests for access to public information coincided with the lockdown restrictions due to the COVID-19 pandemic, which might be the cause behind the slow replies.

According to the Government’s Annual Report civil society prevails with 46% of requests for access to public information made to the local level of governance. BIRN, GAP Institute and FOL Movement are three non-governmental organizations that have filed lawsuits for not being granted access to public information/documents. All of the three organizations have won their cases but the decisions have not yet been implemented.

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