How do these dynamics impact on the opening of the decision making process to public participation?
First, it shows that the Croatian elites (football, cultural, economic, political and academic etc.) are fighting furiously so that their area of material and political interests stay out of the public eye.
Second, it points to the facts that as the system is so slow, it facilitates the elite’s success in this fight and we mustn't forget that the system was created by this very elite.
Third, it suggests that the office run by the Information Commissioner, even though Anamaija Musa and her team do their work responsibly and professionally, does not have sufficient means to have greater success.
The case of the Croatian Football Federation described above illustrates the usual problems facing the Commissioner Musa. The sentence of the Court of Appeal clarifies that the criminal case against Davor Šuker could not end with a conviction, and this was not because it was unsubstantiated or badly formulated from a legal point of view, but because the Commissioner for public information does not have an official messenger at her disposal to deliver a notice advising the former number 9 of the Real Madrid that he was about to be charged, as required by law. "And an employee of the Croatian Post cannot assume the position of municipal messenger as described in Art.148, page 4..." (!!!).
Fourth, the excessive length of these cases is a clear proof that the system granting access to information is not devised to respond to the needs of journalists. Namely, the need to have access to specific information, including documents which are potentially compromising for those who drafted and signed them, before they disappear into oblivion.
Fifth, it demonstrates that the whole system to guarantee the right to access information is still far from reaching that degree of proactivity repeatedly requested by the Commissioner for public information: "The effective use of the right to access information, as well as the reuse of public information is made possible first of all by the publication of information which in the XXI century is in a format which is easily readable and accessible on the web pages of the public organisations at all levels. Secondly, those interested can request access to specific information by sending the relevant request.”
The last report on access to information presented by the Commissioner to the Croatian parliament shows that, even though the capacity of her team has increased since previous years, it is still too low to ensure the full application of the law on the access to public information. "Considering the number of cases effectively solved (526) over the total claims received in 2015 (624), it is clear that the office has increased its effectiveness with regards the overall number of cases solved, but because of the conditions of existing work it has not been possible to resolve all the recourse cases, especially because the employees working on the cases also do other work in the office".
According to Anamarija Musa, "The capacity of the Information Commissioner's office could be increased especially in the area of criminal cases, the reuse of public information, monitoring the application of relative legislation, campaign for awareness of public opinion first of all with the recruitment of at least four employees in the space of two years, but also improving the working conditions including the availability of adequate working space."
Reading Commissioner Musa's report, the general impression is that transparency and openness of government organisations are improving, although they are not satisfactory yet. Particularly significant are the weaknesses in the work of local and regional authorities, of the organisations with public power, as well as firms whose majority capital is held by the state.
As Anamarija Musa explains, at all levels and in all segments of the public administration there have been many inconsistencies in the treatment of requests from the public, especially with regards to notification of expiry and the way of deciding about the requests.
An especially alarming figure emerged in 2015 shows that, for every 10 decisions made according to the law, more that 17 were not consistent with the law, a worsening with respect to 2014 when the ratio was 10 to 12. Commissioner Musa finds particularly worrying the fact that requests for information from the public are repeatedly ignored; in fact, two thirds of the claims received by her office are filed for this reason.
However the most critical aspect of the implementation of the law on access to public information is, according to Commissioner Musa, the scarce application of the procedure for public consultation in the drafting of legislative acts, a deficiency mainly found at local level as well as within certain institutions and in the work of public legal entities.
As explained in the Commissioner's report, "Citizens have the right to participate in the steps taken in the approval of the measures and documents which have an impact on their rights and interests. The exercise of these rights must be enabled by public authorities, being an inherent part of their work, as well as a fundamental value to be respected at all institutional levels for the public interest.” The report also points out that "sometimes the transparency of the work of public administration is satisfactory, while at others it is so limited that not even local authorities have access to information they need to make decisions and this is mainly because of unacceptable political interference in the normal functioning of the institution."
Fight for transparency
Among the most important victories in the fight for transparency obtained in 2016 by the Commissioner for public information, by the journalists and civil society associations there is the publication of a contract on seismological surveys in the Croatian sea, drawn up between the Croatian Ministry of Economy and the company Spectrum Geo Ltd.
In the last few years this affair raised attention and concern among environmentalist associations and among the population on the coastal regions. Actually, the request for access to this document was sent to the relevant ministry already in September 2013. It has taken two and a half years for the whole process of obtaining the information requested to be completed.
Already in November 2015 Commissioner Musa issued a statement saying that public opinion has the right to access the documents requested. This resulted in a complaint from the competent ministry to the administrative high court, which recognised the credibility of the Commissioner's request and ordered that the contracts in question be published. The then minister of the Economy, Ivan Vrdoljak, defended the secrecy of the contents of the contracts declaring that the freedom of business and market are guaranteed by the Constitution and would thus have precedence over democracy, public interest and the right of access to information.
"Freedom and fundamental rights of the individual and of the citizen, guaranteed by the Constitution, are in principle unlimited. Every limitation to this freedom and right must be specified by the law and in this case it was done on the basis of art. 19 of the law protecting professional secret.
State authorities are entitled to use all the economic diplomacy at their disposal to stimulate the development and strengthen economic growth, on the basis of the constitutional obligation of the state to promote economic development in the country, as would a good businessman. The principle of legal certainty and the predictability of the judicial decisions cannot be infringed to the detriment of the individual, independently of how important is the public or general interest."
Fortunately for democracy this way of reasoning did not meet with the approval of the jurisprudence, which has put into place a good procedure for similar requests for access to public information in the future. State authorities and private entrepreneurs were very clearly informed that bilateral affairs in which they are involved must be carried out in line with the public interest, as future contracts will need to be submitted to the public for viewing and judgement.