Partial transparency means partial informing of the public and partial accountability of the authorities

One of the latest journalist investigation topics that stood out – the 1.3 billion euro project for the construction of road corridors 8 and 10 D (“Bechtel and Enka”) – is perhaps the most egregious example of the (in)availability of public information for journalistic use.

Some of the most substantial pieces of information that helped unravel and shed light on the “case” came from publicly available documents.

What was publicly available?

Not in chronological order, the agendas and minutes of the Government sessions were available, from which information was obtained about the Memorandum of Understanding between the Government and Bechtel and Enka, about the exemption of corridors 8 and 10 D from the IPA 3 program as the first step towards the project with Bechtel and Enka, about the establishment of a committee for negotiations and a negotiating team for the implementation of the project, about the adopted conclusion not to engage the company Eptisa in investments greater than 1 million euros due to unethical, illegal and inappropriate behaviour during the supervision of another project, and then a conclusion to cancel the first one.

Furthermore, from the publicly available tender documents for the two surveillance tenders, it was possible to see the change in the criteria for the participation of the companies made in the repeat tender; the decisions of the State Commission for Public Procurement Complaints provided information from which important aspects in journalistic investigation emerged; the concluded agreement  showed the huge sums and the regulation of the hired personnel from which the key findings for the investigation emerged; the data from the Central Register provided information about the current and past owners of the companies involved, their affiliation, the companies’ activities, headquarters, number of employees, etc.

All these documents are published by the institutions as a result of the commitment, above all, of civil society for proactive transparency of the institutions, which means that they themselves, without anyone asking them to, publish the information on their websites. Thus, the ministries and the Government, which published only 44% of the most important information they possess in 2016, published 86% of this information in 2023.

Proactive transparency got a stronger legal basis with the amendments to the Law on Free Access to Public Information made in 2019, where the popular Article 10 stipulates that institutions “are obliged to inform the public through their website” about information arising from their competence and operations. Since the law cannot include all the information that the institutions have to publish because each institution has different information, in order for the public to know what information a certain institution has, each of them is obliged to publish a list of the information they have.

But reality is not as rosy as the law foresees, and transparency is not fully understood and practiced.

Only a few institutions publish at least the minimum information provided for in the Law on Free Access along with the comprehensive list of information they have.

Also, the people who work in the institutions don’t really understand and practice transparency as a process, a principle and a way of regular operations. Any public document created by the institution should be made available to the public at the time of its creation and in the same format in which it was created, without being “locked” and copied into unusable formats such as pdf.

Many institutions decide arbitrarily which document to publish and which not. Public information is any record, in any format, created or administered by an authority. Basically, this refers to all documents that are created during the work, with the few exceptions in the law that refer to classified information, personal data, information pertaining to tax procedures and investigations, as well as protected patents.

It is very important to know that the “spirit of the law” is such that the institution, before deciding not to provide or publish the requested information because it qualifies as an exception, should analyse once again (the so-called harm test) – whether the public interest that would be achieved by the publication of that information is not greater than the consequences on the interest that is being protected. So maybe they should decide to still publish the information even though it is in the exceptions.

And what was not publicly available?

Again, with the corridors “case”, we can see how things are actually done in practice, this time, in terms of the unavailability of public information, which makes it impossible to fully inform the public through the media. All this unavailable information should have been requested further, through open access.

Thus, although the information about the signed Memorandum of Understanding is available, the text of the Memorandum is not available.

Furthermore, the information that the Government established a committee for negotiations and a negotiation team is available, but the names of the members of the committee, the negotiation team and their competences are not available.

The information on the exemption of corridors 8 and 10 D from the IPA 3 program is available, but not the reasons for such a decision.

Also available is the information that the first tender for supervision was cancelled, but not the decision stating the reasons for the cancellation, which, in a way, opened the Pandora’s box regarding this whole case.

The solutions to the complaints from the bidding companies are available, but not the offers of the companies to understand what and why the companies are complaining.

The data from the Central Registry used by the media is also freely available to them, but they have to submit a request to the Registry and go there to get it. And the fact that the media use the information from the register free of charge is not some kind of systemic solution, but is based on the Government‘s conclusion from September 2017, which obliges the Register and the Cadastre to provide media workers with free access to the documents they issue.

Finally, the contract for the project supervision is available, but not the contract for the project for construction of the corridors, made between the Government and Bechtel and Enka. The media outlets that requested this contract did not receive it, although the Agency for Free Access made a decision that the PE for State Roads should deliver the contract to them. The public enterprise first responded that “the contract is not public record”, and then that they had signed a confidentiality clause with the counter-party Bechtel and Enka. But the Law on Free Access does not foresee such an exception where information could be non-disclosed if it is a business secret.

Tricks to prevent access to information

One of the tricks that institutions often use to prevent access to requested information is to classify the information. Although there are strict rules on who can classify what information, as well as when they can do it, for which reasons and to what extent, institutions often classify information after it is requested. In many such cases, the Agency defends the right of the applicant and orders the institutions to provide the requested information.

Another trick is to refuse to provide the requested information because it contains personal data. This exception in the law only applies if someone requests personal data, but not if the requested document contains personal data. What institutions need to do is redact personal data and provide the other information. And in this case, the Agency’s decision-making practice is on the side of the petitioners.

It is often the case that the institutions respond only partially to the request. And in such cases, the Agency stands up for the protection of the right of the applicants and orders the institutions to fully respond to the request for free access.

There are other ways that the institutions use to deny access to the requested information, thus only delaying the period of providing information because the Agency supports the right of the holders and orders the institutions to provide the information.

One of those ways is when the institutions remain silent after the request, that is, they do not submit any response.

Next is when they provide a link to a web page where the answer to the request can be found, although, most of the time, the link does not provide all of the requested information or it leads to general information and the requested information cannot be found.

Or when the institution denies the request because it does not have the information in the form in which it is requested. The law states that the information must be provided in the requested format, it even states that it should be given in a different format than the one requested if it is estimated that that format is more beneficial for the petitioner.

And, seemingly, the last step of the institutions – when instead of submitting the requested information, they decide to sue the Agency before the Administrative Court because it ordered them to submit the information. And, instead of dismissing these lawsuits as inadmissible because the institutions have no legal interest, the court still allows an administrative dispute to be initiated, which is a blow to the role and integrity of the Agency for the Protection of the Right to Free Access, to the transparency of the institutions and to the right of the public to get that information. This is an issue that requires urgent, broader and stronger public alert before it is too late.

Who should do what?

This partial transparency of state institutions and the partially available public information make it impossible for journalists and the media to fully, objectively and critically inform about the work of the authorities, and, in turn, for the authorities to be held accountable for their actions. This is not a characteristic of a democratic state and measures should be taken urgently so that the media can fully realize their social role.

From the examples provided, it is clear that securing information for news reporting and investigative journalism through free access still plays an important role for full and quality informing of the public, therefore it should be taken very seriously.

First of all, there must be compliance with the legal provision stating that requested information should be provided immediately, but not later than the deadline, which is currently 20 days. If the institutions have the information, there is no obstacle for it to be immediately delivered to the petitioner, without waiting (which is often done deliberately) for the deadline.

All relevant stakeholders agree that the deadline must be shorter. Countries are making progress in providing access to public information and 20 days is already among the longer deadlines in this region and beyond. With the advancement of voluntary disclosure of information, it is expected that receiving requests for access will become less frequent, which opens up space for a drastic shortening of the deadline for responding to requests. And with that, the search for information through the right to free access will make more sense for daily news reporting of the media, not only for investigative and analytical journalism.

Institutions should increase their active transparency, that is, publish information as they create it, without delay, tactics and justification.

The format of information and documents and the manner in which they are published should be appropriate and easy to read, understand, download and use.

When an institution receives a request for free access from a journalist or media, it should be especially attentive to the specificity of the journalistic profession, which means not to delay the delivery of the requested information.

If the institution republishes on its website the information it has already submitted in response to a request, in cases where the requests come from journalists and media, it should put off the republishing for a certain period, respecting the exclusivity that the media outlet wants to have with the publication of the received information.

When institutions publish information about various documents, they must also attach the texts of those documents so that journalists, the media and the public can have the complete information, without the need to submit additional requests for free access.

Journalists, for their part, should increasingly use the right of free access, they should mention that they’ve obtained the information by exercising this right or that they requested but did not receive information, and they should fight to the end to get all the requested information and documents.

Thus, public pressure on institutions and authorities will increase, other colleagues and citizens will be encouraged to exercise this right, people in institutions will be encouraged to submit public information following the example of their colleagues from other institutions, a good practice will be created and finally – those who want to continue to hide and close the information will be left with fewer options, as they do not realize that the information is not theirs, nor the institutions’, but that all the information they create and possess is the property of the citizens, it belongs to the citizens and they have the right to access that information whenever they wish.

Author: German Filkov

This thematic article is made within the project “Safeguarding the freedom of expression and independence of media as pillars of democracy in the Republic of North Macedonia” funded by the European Union, . Its contents are the sole responsibility of the author and do not necessarily reflect the views of the European Union