Access Information Act
Lexology, June 13, 2013
1. Access Information Act
Freedom of information and thus the right to access information kept by public authorities is the fundamental human right enacted in the Croatian Constitution, numerous conventions and international treaties. This right has been further elaborated in the Access Information Act which was recently adopted by the Croatian Parliament and which replaced the old one from 2003.
The new Access Information Act (“the Act”) was adopted on the session of the Croatian Parliament (Sabor) that was held on 15 February 2013 and further published in the "Official Gazette" No. 25/13 on 28 February 2013. The Act entered into force the eight day after announcement, on 8 March 2013. The ratio legis of the Act is to ensure legal and natural persons the access to information and their usage through the openness and transparency of the public sector. The Act regulates the right of access to information that are kept with the public sector and their re-usage, restrictions to access and re-usage of information, procedure for realisation of the right of access and re-usage of information as well as other relevant administrative matters such as supervision over the Act’s implementation.
The Act also provides the exemptions from the application in cases where the availability of the information is regulated in lex specialis such as civil -administrative procedure codes, in case of existence of certain classified information or the information that underlie the laws regulating security- safety system of Croatia.
2. Highlighted Novelties
Some of the most significant novelties introduced by the Act are: i) implementation of the Directive 2003/98/EC of the European Parliament and the Council of 17 November 2003 on the re-use of public sector information; ii) introduction of the Commissioner for Information as an independent authority with the main task to protect the right of access to information which also serves as an appellate authority resolving upon complaints; iii) institution of the obligation upon the public sector to publish in Internet drafts of the laws and regulations; iv) introduction of the central catalogue of official documents of the Republic of Croatia and many others.
3. Most Important Terms
“The user of the right of access to information and of the re-use of information” is any domestic or foreign natural or legal person. “The information” is any information held by the public sector in the form of a document, record, file, registry, or in any other form, regardless of the manner in which it is presented (written, drawn, printed, recorded, magnetic, optical, electronic or any another record). “The public sector” means the state administration bodies, other state bodies, self- government and regional- government units, legal entities with public authorities, legal entities incorporated by the Croatian State or regional – local self- government units, legal entities that are entirely financed by the state budget or the budget of the self- government and regional- government units and legal persons in which Republic of Croatia or self- government and regional- government units have majority ownership. “The right of access to information" includes the user's right to seek and receive information and the obligation of the public sector to provide the access to the requested information or to publicize information, regardless of the user`s request, when such disclosure arises from the obligations imposed by the law or some other regulation. "The re-use" means the use of public sector information by a natural or legal person for commercial or non-commercial purposes other than the original purpose for which the information within the public service was developed. "The test of proportionality and public interest" represents the assessment of proportionality between the reasons for providing an access to information and the reasons for its restriction.
4. Public Sector Obligations
The public sector shall publish on its website in an easily searchable way all the laws and regulations pertaining to its area of work, drafts of the laws and other regulations, annual plans and enactments, information on the source of funding and budget, information about its internal structure, information on supports provided, public procurement and open award contracts procedures, most commonly requested information, information on how to exercise the right to access information and re-use of information along with the contact of the information officer. The public sector is required to submit to the central catalogue of official documents of the Republic of Croatia all the laws and regulations, drafts of the laws, annual plans and enactments for their continuous availability and re-use of information. The administration and maintenance of the central catalogue of official documents of the Republic of Croatia shall be provided by the Croatian Information and Documentation Referral Agency (HIDRA). The way of establishing and managing the central catalogue of official documents of the Republic of Croatia shall be prescribed by a special ordinance.
The public sector body shall appoint the information officer whose main task is to ensure the access to information. The public sector body shall ensure keeping of separate official register of the requirements, procedures and decisions on the right of access to information and the re-use of information.
The public sector body shall restrict the access to those information that are subject to the procedures conducted by the competent authorities in the pre-trial and investigative activities during the time of duration of the said procedures. The public sector may also restrict the access to information that are classified by a degree of confidentiality pursuant to the laws governing the confidentiality of information if: i) according to the law the information incl. tax information is considered commercial or professional secret; ii) the information is protected by the law governing the protection of personal data; iii) the information is in the process of analysis within the public sector and its disclosure prior to the completion of preparing a full and definitive information could seriously undermine the decision-making process; iv) the access to information is limited because of international agreements being in force; and v) in such other cases as explicitly provided by the laws.
5. Access to Information Procedure
The public sector shall provide information by timely disclosure in one of the following ways: i) direct provision of information; ii) provision of information in writing; iii) examination of documents and making their copies; iv) delivery of copies of documents containing the requested information; or v) in other way that is suitable for the realization of the right to the access to information.
When applying for the information disclosure, the applicant may specify a convenient way in which the information may be provided to him/her. The applicant is entitled to the access to information by submitting an oral or a written application which is subject to no fee. If the application is made in person or by telephone, the information officer is obliged to make official record. If the application is filed by way of electronic communication, it shall be deemed that the applicant filed a written request. The written application shall contain: i) the name and the address of the public sector; ii) the data that are important for identifying the requested information; and iii) the information on the applicant (name and address or the registered seat if the applicant is a legal person). The applicant shall not be asked to explain the reasons for requesting the access to information.
The public sector is required to decide upon submitted application within 15 days. The time limit set for exercising the right of access to information may be extended by another 15 days, counting from the day when the public sector should have decided the application for access to information, if: i) the information is to be sought outside the seat of the respective public sector body deciding the application; ii) the application requires a number of different types of information; iii) it is necessary to ensure the completeness and accuracy of the information requested; iv) it is required to conduct a proportionality and the public interest test.
If the applicant believes that the provided information is incorrect or incomplete, he/she may require its correction or amendment within 15 days as of receipt. The applicant may challenge the decision of the public sector by filing an appeal to the Commissioner for Information within 15 days. A complaint may also be filed if the public sector fails to decide the application within the set time limit. If the Commissioner for Information finds out that the complaint is justified, he/she shall enable the access to information to the applicant. Against the decision of the Commissioner for Information, the applicant may initiate an administrative dispute before the High Administrative Court of the Republic of Croatia. The High Administrative Court of the Republic of Croatia shall decide on the validity of the complaint within 90 days.
6. Re-use of information
Each applicant/user has the right to re-use information for commercial or non-commercial purposes. In the request filed for the re-use of information the applicant shall specify: i) the information that he/she wants to re-use; ii) the way in which he/she wants to receive the requested information; and iii) the purpose for which he/she wants to use the information (commercial or non-commercial purposes). The public sector body providing the access to information for the re-use may determine the conditions for such re-use of information. The conditions should not unnecessarily impede the ability to usage of information and should not be used in order to restrict the market competition. The public sector body shall decide on the application for the re-use of information within 15 days as of the day of filing a complete application.
7. Conclusion
The new Access Information Act is a modern act which provisions are aligned with the EU laws and principles, international conventions and domestic laws. Its implementation in practice shall enable the exercise of the right of access to information that are kept with the public sector in a quick, correct and complete manner. It is yet to be seen whether the law shall be implemented in practice in a prescribed manner or whether the collection of information required shall be subject to different practices taken by different authorities within the public sector and followed by the omnipresent administration backlog.