Free Access to Information & Secrecy of Data in Montenegro (PDF) download >>>
The purpose of this analysis and recommendations is to propose ways in which Montenegro’s Law on Free Access to Information (LFATI) could be amended to ensure fuller respect for the right of access to information. The LFATI adopted in November 2005 has already proved its value in ensuring that information that was not previously public in Montenegro has entered the public domain. This includes information related to privatization of state companies, and basic budgetary and structural information about the security services.
There are however, a number of provisions of the law that are still unclear, confused or contradictory, and fall short of international standards. These include the provisions on copies and on costs, the need to appoint establishment of information officers in each public body, and the need to clarify and elaborate timeframes. There are also some typical elements of ensuring the right to information that are absent from this law and would greatly enhance its effectiveness, both for requestors and for the administration. These include the duty to assist requestors, the proactive provision of information, greater detail on personal data protection, elaboration of the right to environmental information, and the establishment of an Information Commissioner.
In conducting this analysis, we have been guided by established international standards, including the provisions of the ICCPR and ECHR, and the Recommendation 2002(2) of the Council of Europe on Access to Official Documents. We have also drawn on comparative law and jurisprudence, particularly that from the member countries of the European Union.
International law has clearly established not only a right of access to information but a positive obligation on government to respect that right and take measures to ensure that information is available to the public. The Inter-American Court of Human Rights, ruling in the case of Claude Reyes et al vs. Chile confirmed:
“the right of all individuals to request access to State-held information …[and]the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case [Claude Reyes et al vs. Chile, paragraph 77 of judgment of 19 September 2006].”
In conformity with this it is positive that the Montenegrin Law on Free Access to Information clearly states at Article 1 paragraph 3 that the right shall be guided by international human rights law. This provision is important as it should guide the court in their interpretation of the law (as has already happened in at least one Supreme Court ruling) and should assist drafters in their reworking of the law.
