All that Glitters Is not Gold:^[1]

Critical Remarks on the Freedom of Information Act

Matevz Krivic ©Media Online 2001. All rights reserved.

I have retained some lovely, nostalgic memories of Bosnia and Bosnians of all ethnic origins from the then common country, from serving its army, from some subsequent contacts at the Yugoslav level… I love Bosnia. For us, strait-laced Slovenians, at least for those of us who have attempted at breaking the barriers of this strait-lace character, it opened windows of some other spaces, histories, mentalities, as early as in our youth… I took it hard when I saw its bloody fate in late 20^th century, and what was hardest for me was this destruction of the image of Bosnia and Herzegovina and Sarajevo as virtual models for interethnic and inter-religious tolerance. 

I do not know very much about the post-Dayton development of Bosnia: this or that newspaper article, a conversation with a judge of the before-Dayton Constitutional Court of BH – and that's it. It was my first time to hear bout the famous Freedom of Information Act in BH (FOIA) during the discussion after my lecture held for the participants of the »Media in Transition« Conference (Ljubljana, December 8^th through 10^th, 2000, organized by AIM, under the auspices of the Stability Pact). I supported the critical remarks by the Bosnian participants of the Conference on the account of this Act in full – starting, of course, from their information, since I myself did not know the Act. At the Conference (that is, »international workshop«) on legislation in the domain of radio and television (Bled, May 11^th and 12^th, 2001, organized by UNESCO), on which ''Media Online'' has already provided some detailed coverage, I received additional information on this topic from its Bosnian participants. On this occasion, I was surprised to an extent that the report of Mr. Mehmed Halilovic mentioned this Act only as »a cornerstone of free media«. It was said that this Act and some other similar laws in BH are not only at the level of highest international standards, but in some elements they are even beyond the level of the current media legislation in West European countries. 

I have never had any doubts as to this even then, when I never even knew the text of the Act, neither do I doubt now, when I have had a thorough acquaintance of it. Yes, this is an extraordinary legal text – but at the same time a hard failure too – as hard as it can be if you start the regulation of the media situation in any transition country (not to mention Bosnia strewn apart with ethnic wars) with something which, of course in a realistic instead of the current idealized content, could and should come in the middle or even in the final phase of such a process, rather than as its »cornerstone«. Such an approach is more of a wonder when you read in the already mentioned report of Mr. Halilovic – following a sentence of praise for the Freedom of Information Act: ''However, the problem in this domain lies in the laws on public communications at the level of one of the two entities, that is, at the level of cantons in the other entity. These laws are living remnants of the Communist media legislation; they are contrary to the international standards and to the recent legislation of this country.''

This should be started from the foundations up – whereas they have begun building the house from the roof down! The approach to freedom of access to information namely involves the »roof« not the foundation of a complex and delicate 'structure' of media reality and legislation. Many of the media legislation systems do not have this 'roof' yet at all, or it is still too thin, unsafe and full of holes, these otherwise being countries with good media legislation and good media practice. Here of course I do not refer to Slovenia, which is still far away from both. Nevertheless, the degree of media freedoms during the then common Yugoslavia was noticeably higher in Slovenia than in Bosnia (I know this from my own experience) and I can hardly believe that this gap could have been significantly reduced over the past ten years, given how they were like for Bosnia. And as for Slovenia at least, I feel free to estimate that it will be mature enough to absorb such »an act above European standards« in some 10 or 20 years only – and even then only to understand it, which does not mean accept it as well. 

Of course, Slovenia should understand the need for the first, initial legal regulation of this domain as soon as today (yesterday) – if for nothing else, then because the Slovenian constitution explicitly states (Article 39/II): ''Everyone shall have the right to receive information of public significance, for which there is a law-founded legal interest, except in cases provided in the law.« As far as I know, there is no similar provision in the BH Constitution – this is what I can conclude from the text ''Frequently Asked Questions (about Draft FOIA)'', where only the constitutional right to freedom of speech is stated as a basis for such an Act, whereas this is already required in the constitution itself in Slovenia, but without even a trace of the Act. Slovenia's lagging behind in this area is by no means a reason for Bosnia not to come forward in those terms. I just want to illustrate, what is the »condition of spirit« in this region, where we until recently lived in a common country – not to mention about »the condition of matter« (what the realistic options are: organization of the administration, availability of technical equipment, level of staff skills, etc.). 

Here again I recall the famous statement by Richard B. Sheridan from the 18^th century, which I have already cited, back in 1988, in a book on human rights:[2]: ''You should rather do without a parliament than without freedom of press, you had better give up ministerial responsibility, habeas corpus and the right to acknowledge taxes than give up freedom of press – because it would again bring around and back all of those goods..'' If we apply this onto the Act: what matters is the freedom of press, it has to be secured first of all (in law and practice) – and then, once it starts being implemented, sooner or later, it will bring other goods along. Which ones and in which order, depends on many things – the experience of Slovenia does not indicate that the right to freedom of access to information would exactly be the one on the top of the »value hierarchy«, that is, heading that which free press in a transition society believes to be its own and society's priority. Naturally, provided that a minimum access to information – for media at least – exists in the society after all. And this is then where this normal, natural path of all countries, including the West European ones, begins towards a gradual, organic strengthening of rights and freedoms in this region: the authorities try to further narrow down this thin minimum at some critical moments and on some critical issues (either by formal extension of the »classified information« category or by factual covering up of »free« information) – the media begin attacking this stronger and stronger – the public sensibility on such issues raises – and at one point of this process the following demand grows out: »Why for media only, all information should be available for anyone!« And there is still a very long way to go from this point to the actual implementation of the, say, Scandinavian model of freedom of access to information. 

This process in the transition countries does not have to last for so very long as it has lasted in the West, and repeat all of its mistakes and wanderings – of course that we can too learn from the experience of the »elder«, and even shorten this learning process. However, this still does not constitute individual textbook studying – this is a process of collective acquisition of knowledge and skills in the social practice and no skipping of individual necessary, organic phases is either useful or possible at all. A few smart heads are not sufficient, either domestic or less much »imported« ones, to impose on the society the following code: »From now on, you shall have freedom of access to all information – we have granted you this, and if you can not avail of it and you will only argue about it, this again is your problem; we are washing our hands off it.« This seems to be somewhat of an attempt to »speed up« the child's education so that his parents send him right to the university after the primary school. I know that such geniuses do exist, but these are some extremely rare exceptions. Thus far known only among people but not among countries. 

All of the text until this point had been written before I got to inform myself in detail of the legal provisions of the famous FOIA, having only the general information on the contents of the Act (including the Draft Freedom of Information Legislation – Factsheet issued by the OSCE Mission to BiH. However, the detailed knowledge of the text of the Act did not change any of my views of it. The Act is excellent, brief and clear – but it is practically inapplicable in the countries which are not yet at some appropriate levels of development of the legal and political structure. I am convinced from my own experience that these can by no means be the countries in the region of former Yugoslavia, and I do not either believe that for instance Poland, Czech, or Hungary would fare significantly better with such an act. In the beginning of this text, I already quoted the opinion from the report by Mr. Mehmed Halilovic according to which this act was »in some elements even beyond the current media legislation systems in the West European countries« – and I do not want to get engaged in forecasting of how it would be applied in practice of these developed countries. Certainly not with equal success for instance in Sweden on the one hand and for instance in Austria, Italy or Greece on the other. 

Those who only care about »normative reality«, and who do not know or who neglect the actual one, will find it hard to explain what this is all about. Let us nevertheless try.

Let me begin with the minor issues. The sheer fulfillment of only the lateral, »accompanying« obligations in this law imposed on all the public authorities in the countries without solid and well-established public administration systems (not to mention the destroyed Bosnia) is beyond reality. Pursuant to Article 20, each public authority would have to produce as follows: (a) manual for access to their own information, (b) index registry of types of information, (c) quarterly statistical data, and (d) at least annually detailed report on their overall activities, finances, etc. A scarce and clumsy public administration in the transition countries has better things to do than all of the aforementioned. Of course, all of these would be beneficial both to itself and the citizens – but until it gathers strength to resolve all the conflicts and dilemmas to arise during such work, it wastes both time and money for the major thing that this authority should actually be doing. In the first place, we have to teach such authorities to do each of their jobs well – along the way, both opposition politicians and media will exert more and more pressure on them to provide public reports on their work on a continuous and timely basis, although »only« using the classical, already normal method (reports, press conferences, answers to representatives' questions, etc.). It is only then that the higher level of free access to information could slowly come in order, namely, individual responses to requests of every individual in terms of this "above the standard« act. When, in how many years? I do not know, but certainly not today. 

Harder than the mentioned one, but still more relevant to the implementation of the Act, is the problem of how the inexperienced and legally ultimately unskilled transition administration (down to its smallest units) could cope with the fine and sensitive legal instruments referred to in Articles 6 through 9 of the Act: determining exceptions (I particularly stress point d), establishing »confidential commercial interests of third parties«, and to crown everything – on which the Act stands and falls – is the procedure of »examining public interest« pursuant to Article 9. 

The first three problems themselves can be resolved in a satisfactory way only for a public administration which has a long-term experience behind it in such determining or establishing, based on not so general but more of casuistic criteria – experience, supplemented with rulings of highest courts in some disputable or delicate cases. Only such a public administration is (maybe) mature to start directly making their own decisions based on the most general criteria referred to in Articles 6 through 8 of the Act. 

However, it is up to an even more difficult examination – decision making based on an even more general criterion referred to in Article 9 – ''Public Interest Test'' – which has been stipulated in the Act with beautiful clarity, but in a quite abstract manner: ''The competent public authority shall publish the required information, regardless of the established exception in terms of Articles 6, 7, or 8, if justified in public interest, and shall take into account any benefit and any damage that may arise from this.”[3] The heart of an experienced judge starts missing a beat when he is offered to rule based on such a “pure” legal criterion – but this is a hard task for judges without appropriate experience, not to even mention administrative officers. But the hardest question involved here is whether ruling based on such an abstract criterion is appropriate for the needs for transition societies, whether they are mature and ready to accept rulings based on such abstract criteria as just ones? 

My eight-year experience of a constitutional judge from the transition Slovenia provides a categorically negative answer to this question of mine. It is easier for people to accept even problematic court rulings, if they arise from fixed legal criteria the application of which people can understand and control at least to an extent, rather than court rulings that may even be more just, but incite in people a feeling of arbitrary ruling on the basis of some too abstract and content-wise empty criteria. The society needs to be exposed to certain experiences with problematic decisions based on problematic, too casuistic or too practice-based criteria before it becomes ready to understand and accept some more abstract criteria as being better. Under one more significant condition, of course: provided that the country has an independent judiciary with indisputable reputation, whose decisions or rulings will be accepted as just when based on such abstract criteria. He who believes that any single of the transition countries has or can at all have such a judiciary must have fallen down straight from Mars.

Let us not forget – people should here understand and accept an even triple turnaround of criteria, that is, the starting points for judging of the problem: 

• Starting point: free access to any and all piece of information;

• Turnaround: but not if it involves the exceptional cases referred to in Articles 6 through 8 (difficult and complex evidentiary process, whether it involves such a case or not);

• And then yet another turnover: first we proved (with much difficulty) that it involves one of the justified exceptions (where we can still and must rely on more or less fixed legal criteria), and then “we throw it over our shoulders”, referring to the rather arbitrary “test of public interest” used by the authority to judge, “having regard to both any benefit and harm that may accrue from doing so”, that releasing such information is justified in public interest after all. In the practice of administrative authorities and courts of transition countries – and the more so in perception of such practice on the part of citizens – this will mean that the more or less legally fixed criteria referred to in Articles 6 through 8, although themselves hard to determine, ultimately had to give way to the completely undetermined criterion referred to in Article 9, and this eventually means, to the politically determined judgment of the decision-making authority. 

But even if it was not for this last, most difficult problem (Article 9) – are the courts at least (if the administrative authorities aren’t) in our transition countries sufficiently capacitated at least to resolve the problems imposed by the criteria referred to in Articles 6, 7, and 8? He who has at least a bit monitored similar judicature in the West European countries (I do, for example, primarily in Germany) knows how complex problems can be even there. In a stable country, such problems can be resolved gradually, an established court practice can be gradually built by enforcing decisions of the highest court instances. But when in a country of transition we attempt to start off with all of these literally from scratch at all levels simultaneously – where can we arrive in a foreseeable period of time? Only in a chaos, I am afraid, in a heap of disputes, various interpretations of similar problems in different areas, authorities and at various levels, which will make the people draw a foremost conclusion that the real criteria actually do not exist at all and that everything will ultimately be decided upon by this or that political or ethnic interest, not justice. And once this happens to us, we will remember that well-known saying that the path to hell is paved with good intentions. What’s an excellent law worth when it produces miserable results?

However, the Act is already in effect today – what is to be done? The only pragmatic solution may be – if the decision-making factors would acknowledge the criticism contained in this article, which I doubt very seriously – to cross out and at least significantly mitigate the requirements referred to in Article 20, and then that the best be attempted at in the practical handling of the Act. However, an even more pragmatic “solution” can be found in the practice – simply to ignore the act that the practice can not live up to. I know a number of such examples from former Yugoslavia. Of course, I find the former solution more familiar personally – and if this article is to contribute at least to a decrease of euphoria in terms of this “above the standard” law among some circles, I will be very satisfied with this also, if for nothing else, then for that nostalgic link with Bosnian that I have, of which I admit I was hesitant to warn the readers against in the very beginning of this text. I hope that neither they nor Bosnia will bear any hard feelings with me. 

Matevz Krivic is one of the leading experts for media law in the countries of former Yugoslavia and a former judge of the Constitutional Court of Slovenia. ©Media Online 2001. All rights reserved.

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