While state authorities continue to tear down transparency, the Office of the Commissioner has come up with the so-called ‘response return,’ similar to the preferred strategy of public institutions known as ‘response without response.’ This new hybrid is merely a facade that conceals the withholding of information, and it has been deemed illegal even by the Court. Out of every 100 complaints brought before the Commissioner, only 3 are in favor of access to information; the rest are either dismissed or left unanswered.
Artan Rama
The Commissioner for the Right to Information recently held the 5th National Conference in the grand hall of Hotel Plaza, part of the luxurious tower group in the center of Tirana, which is visibly giving the capital a new and, of course, a more European appearance. As always, within such a stereotype of a venue (more due to preconceptions than fair judgment), the objectives of the conference were fully met. Commissioner Dervishi, whose second term is coming to an end, announced that next year he will also organize the World Conference of Information Commissioners in Tirana… Apart from being a remarkable achievement, the organization of the world conference is somewhat expected. As it is known, in the past decade, Albania has adopted advanced legislation in favor of access to information, which, under the pressure of rapid developments and new technologies, is expected to be revised again in the coming months.
Indeed, without wanting to diminish the enthusiasm that has erupted in writing, let’s shift our focus to developments in practice, where the past of state authority continues to dominate transparency, considering openness as a hindrance to government work.
In the past two years, journalists have been leading the complaints filed at the Office of the Commissioner. Two out of every five complaints belong to them. This can undoubtedly be considered an achievement for journalism. However, on the other hand, under the premise that information is a public good, it increases the pressure on authorities to fulfill their responsibility in ensuring and disseminating this good.
For some time now, within the journalism environment and a significant portion of non-profit organizations, the Commissioner for the Right to Information has been seen more as an ally than a state authority. This relationship of trust between authority and journalists, especially investigative ones, is promising. However, regardless of its nature, it should not be taken for granted. Reliable reporting in favor of the public is an ongoing effort to balance lawful interests, and its evidence remains Transparency.
“The indicators in numbers are still far from the optimal level expected to be achieved by the ‘Right to Information Act’ when it was enacted in 2014,” says Dorjan Matlija, the Executive Director of the Res Publica Center, whose office has recently been exerting significant energy to monitor the state of access to information in Albania. “And the greatest fear,” he continues, “is that this (suboptimal) level will become normalized and considered acceptable.”
However, Mr. Dervishi has emphasized more than once the independence of his office. Although an institution is independent of the government, the Commissioner can be removed by a simple majority of members of Parliament (representatives of the governing majority), whose number can easily reach 37, i.e., half (plus one) of all members of the Parliament present in the chamber.
For Dorjan, for an office to be independent, it needs to function as an agency (with the ability to make autonomous decisions). “But in environments dominated by a strong executive in relation to other powers, this seems extremely difficult,” he further emphasizes. “In these circumstances, the Commissioner does not have real possibilities to maintain integrity and power,” concludes the lawyer.
In a time when anyone, thanks to technological possibilities, can publish almost anything and call themselves a journalist, few bear the burden of responsibility for publication. Similarly, it is the same with the Commissioner: monitoring the implementation of the “Right to Information Act” is not enough to automatically consider oneself a champion of transparency.
In March, I approached the Commissioner as a public authority, seeking data openly mandatory to be provided. I requested the number of citizen requests rejected by public authorities due to exceeding the ten-day deadline, as stipulated in the legislation of the right to the information field. The Commissioner declined, responding shortly that the legislation only supported the provision of ready-made documents, not the processing of existing documents.
During a conversation with my colleague Lindita Çela, an experienced journalist in the print media, winner of several awards in the field of investigative journalism, I learned that similar refusals are becoming common. “In investigative journalism, journalists need data that may not be in standard form, as commonly found in official documents, majority of letters, or ready-made contracts,” the journalist explains. “Moreover,” she further clarifies, “often these data are the only way to understand a specific phenomenon.”
Indeed, the request was even simpler. According to the annual report for 2022, the total number of complaints was 1032. Therefore, the request was to know how many of these complaints were rejected without any notification from the public authorities. It is an important piece of information that exposes the extent of disregard for citizens by public authorities and further evaluates the Commissioner’s role as an overseer.
“Institutions refuse with the argument that they lack the staff and sufficient time to process the requested information,” Lindita continues. She has lost valuable data in the past, which continues to happen. She further explains that it is a deliberate tactic by authorities to avoid disclosing information. She tells me about the risk that through ready-made information (made available), journalists risk easily becoming propagandists manipulated by “spin doctors.”
But is the Commissioner’s stance part of the same tactic? The Office did not see it necessary to respond, definitively closing this discussion, which is extremely valuable for accountability and the media’s contribution as a guardian of public safety. The expansion and processing of data, thanks to technological advancements, are extraordinary tools in the hands of investigative journalism to broaden the boundaries of transparency and government accountability. Their role is not limited to enriching the journalistic ecosystem but also serves as a communication mechanism that develops awareness and empowerment.
In 2020, the Commissioner established the Transparency Index Instrument (TII), giving the Office the image of a project, whose objectives would be achieved step by step. But what was this instrument? It was a measure of proactive government transparency, with its indicators increasing year by year, together with the involved public authorities. Three years after the development of the TII, let us monitor the implementation of just one of these indicators (nine in total so far): the transparency program, which includes categories of information made public free of charge.
What matters more in this category of information, not only for investigative journalism but especially for the high public interest they carry, are the procurement and concession contract procedures and their implementation. This excludes information such as the CV of the holder, office location data, authority functions, and duties, etc. Although the “Right to Information” law allows proactive disclosure, the publication of contracts and their implementation has been taboo for years. But before we assess the fulfillment of the Transparency Program today, let’s first refer to the latest assessment of the Proactive Transparency Index (December 2022) conducted by the Commissioner’s Office, selecting only the declared more transparent authorities, the best among them being the Prime Minister’s Office and the most important ministries. From the examination of the Transparency Program in these authorities, it is noted that none of them have published the contracts in question. Many of the links turn out to be false, while others deviate, leading us to the Online Bulletin of the Public Procurement Agency (PPA), where the citizen gets lost in dozens of unnecessary links. So, how can this be explained as being more transparent? The Commissioner’s Office did not explain the scientific criteria on which these indicators were set but acknowledged that this challenging undertaking was supported by internal sources, selecting those information categories that citizens had shown an interest in. It is astonishing how the Commissioner continues to maintain the same selection criteria, relying on the preferences of anonymous citizens, even though in the past two years, it has been journalists who dominate the requests, both in terms of quantity and content.
Nevertheless, the situation remains promising, as almost half of the complaints in 2022 came from journalists (read the report here). It seems that this group of interest is taking matters into their own hands, not only legally but also morally. Meanwhile, the response from the Commissioner’s Office remains faint and unsupportive. Decision-making continues at a low rate. Out of every 100 complaints, only 3 are in favor of access to information, while the rest are either neglected or left unanswered.
Finally, an even more refined process, encouraged by the Commissioner himself, deepens the gap between the increasing number of complaints and the decline in decision-making: the classification of a number of complaints as “response return,” where no decision is made regarding them… According to the “Right to Information” law (LRTI), complaints follow two paths: acceptance or rejection. In the subsequent process, acceptance is concluded either with the authority’s order to provide the information or with the dismissal of the complaint. However, the Commissioner’s Office seems to have invented a third path, the so-called “response return,” similar to the phrase “response without response,” which burdens the public authorities seeking to withhold information.
So, how does the Commissioner justify the avoidance of “response return” in decision-making? First, let us explain what this new hybrid represents, which aggressively damages transparency and accountability.
During communication with the Administrative Court of Appeal, Ms. Elona Hoxha, in her capacity as the General Director for the Right to Information at the Commissioner’s Office, explains officially that the Commissioner makes decisions in cases where public authorities are ordered but do not make decisions on complaints that are clearly outside the scope of review. Strangely, this also includes rejected complaints due to limitations stipulated by the law (LRTI). But can these different types of complaints be confused with one another? Complaints classified as outside the scope of the review are complaints outside the scope of the LRTI, mainly coming from citizens, while complaints rejected due to LRTI limitations mainly refer to Article 17, which concerns a part of the information that is restricted before publication, and behind which stand journalists, especially those in investigative journalism. It must be understood that limitations in the LRTI are not implemented a priori and, as always, when faced with a dilemma of providing or withholding information, the Commissioner must encourage public authorities to first demonstrate the harm caused by the disclosure of information, which interests are affected, and whether these interests fall within the circle of protected interests through limitation. In other words, the authority is obligated to conduct a public interest test before making a decision. If it fails to do so, the Commissioner must order it to do so. However, the Commissioner readily accepts the claims of authorities to refuse the provision of information without conducting the public interest test beforehand.
If the claims of the authorities are valid, then the Commissioner can be asked: why doesn’t he directly reject these types of complaints through a decision? Simply put, if the Commissioner reasonably concludes that the refusal of the public authority is lawful, let him reject the complaint. Why doesn’t he do it? Perhaps what the Commissioner seeks is to avoid cases where the reasoning might result in favor of the complaint and, likely, when the actions of the authorities would consequently be deemed illegal. In fact, two recent court decisions confirmed the illegality of the authorities’ actions. Personally, as the plaintiff, the First Instance Administrative Court in Tirana ruled in my favor, first ordering the public authority to provide me with the requested information, and secondly, considering the act of “response return” by the Commissioner as unlawful. It concerned public contract documents, such as the annexes of the concession contract for the construction of Vlora International Airport (VIA) produced by the Ministry of Infrastructure and Energy, and the inventory of public properties made available to the Strategic Investments Fund, produced by the Ministry of Finance and Economy, all of which were previously refused.
Regarding the LRTI once again, let us remember that the acceptance of a complaint by the Commissioner follows only two paths: either the authority’s order to provide the information or the dismissal of the complaint. Any (intermediate) claim through the “response return” hybrid is nothing more than a facade that masks its non-response. The situation worsens even more because “response return” is not registered in the Commissioner’s decision-making practice. However, it seems that the Commissioner has a justification for it. Technically, the “response return” trick is simply a recommendation for disclosure without specifying the date of disclosure. The precise omission of the time frame renders the “response return” act not meeting the formal conditions to be considered a decision since it needs to have the exact date when the authority will implement it. This makes it even more unstable in the face of public authorities’ refusals, as they can indefinitely prolong the provision of information. Leaving an administrative act without a deadline can be interpreted by the Commissioner as a document that does not meet the formal conditions to be considered a decision (in accordance with point c, paragraph 5, Article 24 of the LRTI). However, as mentioned above, the Court considered “response return” an unlawful action, not once but twice by two different judges. In conclusion, this remains a problem created by the Commissioner and should be resolved by the Commissioner himself, not by the Court.
So far, the Commissioner continues to refuse. Ironically, Ms. Hoxha, who officially defends the citizens’ right to information, turned to the Appeals Court to block this right by seeking the annulment of previous decisions that allow the disclosure of documents of public interest.
The efforts of the Commissioner’s Office to legitimize the “response return” practice, with the help of a vicious circle of unlawful justifications, are impoverishing the Commissioner’s decision-making practice for the Right to Information and making the institution less transparent.
On the day of the 5th National Conference, under the slogan “Openness – Transparency – Digitization,” invited state employees were mostly absent, as were journalists, most of whom were unaware of the conference. The few present media quickly left after the departure of high-ranking representatives of the state authority. Ms. Felaj, the Deputy Speaker of the Albanian Parliament, who delivered the opening speech and proposed a discussion on openness and transparency, left before the discussion she herself proposed even began. If we were to attribute the responsibility for this abandonment solely to the Commissioner, we would undoubtedly be biased. What needs to be understood goes deeper. It is not simply about being balanced but about how capable we are of understanding that successes on paper are not enough to serve the public good. As long as the Commissioner for the Right to Information lacks the determination to work diligently in the field, the state authority will continue to withhold valuable information from the public. Administrative employees will never willingly be accountable, nor can they be fully transparent, simply because the law may shine on a piece of paper.
“The Commissioner lacks the spirit and courage to fulfill the duties entrusted to him by the law,” said Irena Dule, a lawyer specializing in the right to information, with whom I have often joined forces to seek access to information in court. According to Ms. Dule, who has been dealing with representatives of the Commissioner’s Office in recent years, the Commissioner’s positions should be consistent and clearly in favor of openness. She explains that safeguarding balance or protecting the interests of other groups ultimately falls within the responsibility of the courts. “In this regard,” she concludes, “only a genuine and sincere action from the Commissioner can truly bring about achievements in the direction of openness and transparency.”
Public information is a public good and as such deserves support and protection, but first and foremost, it requires a moral effort.
Ky shkrim është pjesë e projektit që mbështetet financiarisht nga Zyra e Mardhënieve me Publikun e Ambasadës së SH.B.A. në Tiranë. Opinionet, gjetjet, konkluzionet dhe rekomandimet e shprehura janë te autor-it/ve dhe nuk përfaqesojnë domosdoshmërisht ato të Departamentit të Shtetit. / This article is part of a project that is financially supported by the Public Relations Office of the US Embassy in Tirana. The opinions, findings, conclusions, and recommendations expressed are those of the author(s) and do not necessarily represent those of the Department of State.