Why Is Free Access To Information Important For Serbian Citizens And Media?

Dejan Milnkovic, M. A. Legislation Initiative Coordinator Lawyers' Committee for Human Rights (YUCOM) Belgrade, Serbia

Throughout the long history of the human society, information has represented one of the essential instruments held in the hands of those in power. Information has been – and still is – a key to exercising power over human beings, for if the doings of those in power remain secret and the ruled are not aware of what goes on in the midst of the ruling, human rights and liberties are considerably trimmed and citizens are prevented from participating in complex social processes (compare: The Right to Know, the Right to Live – Access to information and Socio-Economic Justice, Edited by Richard Calland and Alison Tilley, Open Democracy Advice Centre, Cape Town, South Africa, 2002).

“Secrecy” often represents the only way to remain in power, conceal irregular and illegal doings of top state officials, wastefulness and corruption and other features inherent to an undemocratic and closed society. Even democratic governments tend to attend to their affairs far from the public eye. It is for these reasons that free access to information represents in contemporary society a fundamental condition for an open and transparent work of public bodies and (especially administrative)authorities, as well as of other public subjects related to them. It is therefore understandable to stress that information represents “democracy’s oxygen.

As it evolved from the right to having an opinion and expressing it to the right to be informed, the right to free access to information has been codified in numerous international instruments, as well as regulated by individual countries’ internal legal regimes.

The Council of Europe Committee of Ministers, for example, adopted several important recommendations such as: Recommendation R 81 (19) on the Access to Information in Possession of Public Organs; and Recommendation 2000 (2) on the Free Access to Official Documents; all these instruments represent a framework within which member-states should promote, secure and protect free access to information in their legal systems (English texts of these instruments are available at: www.coe.int).

The right to free access to information has been acknowledged in national legislations throughout the world (USA (1966); Canada, Australia (1982); New Zealand (1982); Portugal (1993); Denmark (1970); Norway (1970); Greece (1999); Ireland (1997); France (1978); The Netherlands (1991); Poland (2001); Albania (1999); Czech Republic (1999); Slovakia (2000); Bosnia and Herzegovina (2000); Rumania (2001)…Source: David Banisar, Privacy International, July 2002 + FOIA News). In several countries, free access to information represents a human and civil right and liberty guaranteed by the Constitution (Albania, Austria, Belgium, Canada, Phillipines, Portugal, Slovakia, South Africa... Source: David Banisar, Privacy International, July 2002 + FOIA News).

Free access to information as a human right is defined as the right of each individual to request and acquire from government officials and/or public authorities relevant information of public interest, so as to efficiently enable insight into the work of those entrusted by citizens in a free and democratic election with the execution of power or conduct other public affairs related to the execution of power, on their behalf (compare: Zoran Jelić, U susret zakonskom regulisanju slobodnog pristupa informacijama (Towards Legislation on the Free Access to Information), Ekonomika (Economics), Belgrade, No.3/2002).

The right to free access to information controlled by government and/or other public bodies represents a new step in the promotion of the citizen’s role in conducting complex public affairs. Accessibility of information brings about greater transparency and responsibility of public officials.

It is by means of a Free Access to Information Act that citizens are assisted in expressing, protecting and materializing their interests, thus taking advantage of the “third generation” of human rights and liberties.

Thus the citizens will be able to learn e.g. in what way their voluntarily contributed funds for the construction of a local water supply system were utilized; in what way tuition fees at the University are calculated; how many members of an ethic community attend a vocational school in a city; etc. Citizens will also be able to seek information on whether the Ministry used his official car for private purposes and thus embezzled taxpayers money; who and why attended the Athens Olympic Games on taxpayers account; in what occasion the President met the Chief of General Staff; what law drafts are undergoing parliamentary procedure etc. It is in this sense that adopting a Free Access to Information Act not only insures a very important new right, but it also by its nature represents an important anti-corruption law. By means of gaining insight into such information citizens will be able to set protection mechanisms in motion against unlawful and illegal conduct of particular government agencies and other authorities, e.g. addressing the Ombudsperson, public prosecutor or media Commissioner, citizens themselves turned into active participants in social processes.

But, numerous issues that would interest individual citizens, families or civic society associations do not necessarily represent information relevant for the society at large. Consequently, most of such information would not be interesting for the media either. This, however, does not mean that “the seventh power” would not benefit from a law like this: journalists and media represent the second beneficiary of the Act’s democratic intentions and its provisions that impose specific duties and obligations on those who generate and safeguard information.

In an environment in Serbia, without a journalists’ ethical Code of conduct, or an efficient regulative mechanisms that would lead to the formation of bodies independent from the state, that would exercise considerable influence on both media owners and journalists themselves – e.g. Media Council, Press Council or Media Ombudsperson – dangerous phenomena such as libel campaigns, calls for violence against particular events and personalities have occurred. It is well known – as Article X of European Convention on the Protection of Human Rights and Fundamental Freedoms stipulates explicitly – that this freedom entails specific duties and responsibilities as well. It can be subject to formalities, conditions, limitations and punishment specified by law and necessary in a democratic society in order to protect national security, territorial integrity and public safety; in order to prevent unrest and crime, protect health and morality; in order to safeguard reputation and rights of others; prevent disclosure of information acquired confidentially and in order to protect the authority and independence of the judiciary.

In a situation where there exist no legal documents obliging printed media to disclose who they owners are, the public is often served information not checked for accuracy and truthfulness, that often have a character of pamphlets and rumors launched by hidden power structures, most of all by parts of secret intelligence and security services inherited from the Milosevic regime: these structure shape public opinion according to their own needs – a practice well-known in propaganda theory.

By claiming the so-called “unnamed sources” of their information, journalists grossly violate their obligation to verify their information with at least two independent sources – a practice which represents one of the basic standards of serious and investigative journalism. Thus they publish false and sensationalist information that endanger public security, instigate unrest and crime and jeopardize reputation and honor of others. Moreover, they often launch campaigns that have a character of calls for lynch and violence against specific persons or groups. In addition to this it must be underlined that the Lustration Law, adopted over a year ago in Serbia is not at all being implemented, as well as that there is no law on the opening of secret files, which complicates situation even more and clearly indicates the way in which media in Serbia become instruments of secret power structures’ propaganda.

If adopted, a Free Access to Information Act, however, would enable information from “unnamed sources” to be checked, whereby the “unnamed sources” would only represent an instance that indicate the existence of information which the journalist can subsequently check relying on this Act which secures him/her an “alibi” for an information published in spite of a government agencies’ denial of free access. If this should not be the case it will become clear that media themselves do not want to present truthful, timely and accurate information to the public. They would thus also hide the background of such information.

That is why a Free Access to Information Act represents a very important law for the media on Serbia, because it clearly indicates the way media and sources of such information are to cooperate in the future. That is why it is justified to expect to help journalist do their job in the name of the public properly and secure the implementation of the principle of transparency of public authorities and government agencies in an impartial and truthful way which is not the case in Serbia today.

After the fall of the Milošević regime, preparations are underway to adopt a series of laws with the aim to approach the Council of Europe standards and the legislation of the European Union. During the public debate on draft laws on media in 2001 and early 2002 (Public Information Act; Broadcasting Act; Telecommunications Act) in Serbia and Montenegro, it was indicated that a Free Access to Information Act should also be drafted. Such a law had not existed in our legal system before. Under the pressure of the media and nongovernmental organizations, reference model laws to this effect have been made both in Serbia and Montenegro, with the aim to uphold and promote freedom of information in accordance with European and international standards.

Serbia as a member-state of the state union of Serbia and Montenegro, as well as Montenegro itself has not yet adopted a Free Access to Information Act. A Draft law on free access to information has been submitted to Parliament in Serbia pending adoption. Adoption of Free Access to Information Act would represent significant step forward in promoting freedom of access to information in accordance with European and international standards.