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December 04, 2017 | Monday

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Access to documents, whistle-blowers and tracing of accountability

From: SERBEZE HAXHIAJ

In 2013, I twice made requests to the Ministry of Foreign Affairs in order to see which state officials had gained from verbal notes, and another time related to foreign travel expenses of the officials of this ministry. I did not receive a reply on any of these requests.

There are exceptions in cases where institutions can refuse access to documents if this is a threat to public interest, public security, international cooperation and the privacy of an individual.

The information that I was requesting did not relate to any of these. However, the requests were refused.

A non-response of an institution within a 7-day deadline is considered a refusal, and gives the right to the requestor to initiate a court procedure against the institution or to file a complaint with the Ombudsperson. I chose the latter.

But even in this case I did not get an answer.

Three months after contacting the Ombudsperson, the officer that had received the request contacted me and explained that she had contacted the Ministry of Foreign Affairs in order to request the required information. There was no evidence of this ever happening. The legal period to address the matter in court had expired.

Access to public documents as one of the core components of transparency and responsibility continues to be challenged due to the lack of mechanisms which make accountability functional.

The right to request and obtain public information has been undermined by the fragmented and unclear approach of authorities which has had a direct affect on the decrease of media requests for access to documents.

Journalists in Kosovo, in most cases, do not make use of the right to request official information. However, even in cases when this does happen, in general they are deprived of the right to have access to material public documents, which are unclassified, in an industry flooded by unfounded reporting and without a formal checking of facts.

Refusal of access to public documents is often legitimised with irresponsible explanations which usually come under the name of “violation of privacy” or that of “personal data”.

In no few occasions the Agency for Personal Data Protection has transformed itself into the guardian of limiting the provision of public documents by protecting officials that are violating the law.

In light of the actions by this state mechanism, and in particular the clear nuances of it serving political interests, the Office of the European Union in Kosovo recommended the transformation of the Agency for Personal Data Protection into the Office of the Information Commissioner. Whilst the design of this mechanism remains unclear, journalists and the Ombudsperson are of the view that this has the potential to touch upon the responsibilities of the latter.

So far, the court has decided only in two cases in favour of the plaintiffs in relation to access to public documents, whilst court decisions have been disregarded by the executive which the court had found to be responsible for the refusal.

In the same atmosphere also, the whistle-blowers of corruption have been muted. In those rare cases where there was whistle blowing and people ready to report, voices have been silenced due to lack of protection for them, degrading attacks and direct threats. This continuous to leave a path for the abusers and a larger need for channels of information which come through questionable sources, and which often turn out as manipulators disguised with wrappings of casts they belong to.

Whilst the authorities of the country have increased the level of arsenal in the social media, with executory units ready to label the investigators of abuses as enemies, what Christian Amanpour recently called a “dystopian nightmare” has now become the rule.

At the end of 2016, the European Union in the part of the report related to Kosovo changed the routine working terminology. In the part related to rule of law and freedom of the media it highlighted that: “Democracy and the rule of law is continuously challenged, in particular due to the seizing of the state, which affects the functioning of democratic institutions and the key issues of society”.

In an environment with partial freedom and with a semi-authoritarian approach of the authorities, this has caused the increase in the level of tabloid journalism in the media, which has crushed journalism based on facts and proper analysis.

Even if they are no longer killed in the classical manner, journalists and whistle-blowers continue however to be crushed under the weight of censorship and actions that are “within” the law.