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Note: This Act was published in the "Official Gazette of
Republika Srpska", number 20/2001, dated 18 May 2001
—This is an unofficial translation, and represents the only
English version endorsed by the OSCE Mission to Bosnia and Herzegovina and the
OHR—
July 2001
PREAMBLE
Based on Article 70(1)(2) of the Constitution of the Republika Srpska and
Article 116 of the Rules of Procedure of the National Assembly of the Republika
Srpska ("Official Gazette of the Republika Srpska", number 10/96 and 1/01), the
National Assembly of the Republika Srpska, on the session of 2 May 2001,
adopted
THE FREEDOM OF ACCESS TO INFORMATION ACT
FOR THE REPUBLIKA SRPSKA
CHAPTER I
PRELIMINARY PROVISIONS
Article 1
Purposes
The purposes of this Act are:
- to establish that information in the control of
public authorities is a valuable public resource and that public access to
such information promotes greater transparency and accountability of those
public authorities, and that this information is essential to the democratic
process;
- to establish that every person has a right to access
this information to the greatest extent possible consistent with the public
interest, and that public authorities have a corresponding obligation to
disclose information; and
- to enable every natural person to request the
amendment of, and to comment on, his or her personal information in the
control of a public authority.
Article 2
Interpretation
This Act facilitates and promotes the maximum and prompt disclosure of
information in the control of a public authority at the lowest reasonable
cost.
Article 3
Definitions
Under this Act:
- "information" means any material which communicates
facts, opinions, data or any other content, including any copy or portion
thereof, regardless of form or characteristics, when it was created and how it
is classified.
- "public authority" means any republican authority,
city authority, municipal authority or any authority in the Republika Srpska
as follows:
- an executive authority;
- a legislative authority;
- a judicial authority;
- a body appointed or established by law to carry out a
public function;
- any other administrative authority;
- a legal person that is either owned or controlled by
a public authority.
- "control" means either possession of, or access to,
information.
- "personal information" means any information relating to a natural person
who can be directly or indirectly identified by reference to factors such as
but not limited to, an identification number or that person’s physical,
mental, economic, ethnic, religious, cultural, or social identity.
- "competent authority" means a public authority that
has control of the requested information and is the public authority by whom
or for whom the information was brought into existence. If the latter cannot
be determined, then the public authority whose function most closely relates
to the requested information shall be the competent authority.
CHAPTER II
ACCESS TO INFORMATION
Article 4
Right of Access
Every natural and legal person has the right to access information in the
control of a public authority, and each public authority has a corresponding
obligation to disclose such information. This right of access may only be
subject to such formalities and restrictions as are prescribed by this Act.
Article 5
Determination of an Exemption
Requested information shall be determined to be exempt from
disclosure only in those cases where a competent authority:
- claims an exemption under Articles 6, 7 or 8 for all
or part of the information; and
- determines, upon applying the public interest test provided for in Article
9, that the disclosure is not justified in the public interest.
Article 6
Exemptions for Functions of Public
Authorities
A competent authority may claim an exemption where disclosure
of the information would reasonably be expected to cause substantial harm to the
legitimate aims of the following in the Republika Srpska:
- the defense and security interests, and the
protection of public safety;
- crime prevention and crime detection; and
- the protection of the deliberative process of a public authority insofar
as it involves the expressing of an opinion, advice or recommendation by a
public authority, employee thereof, or any person acting for or on behalf of a
public authority, and does not involve factual, statistical, scientific, or
technical information.
Article 7
Exemption for Confidential Commercial
Information
Where a competent authority reasonably determines that a request for access
to information involves the confidential commercial interests of a third party,
the competent authority shall forthwith inform the third party in writing of the
specifics of the request. The notice shall inform the third party that the
disclosure of the information is imminent unless the third party, within 15 days
of receipt of the notice, responds in writing that it considers the information
to be confidential and gives reasons as to why harm would result from
disclosure. Upon receipt of such a response the competent authority shall claim
an exemption.
Article 8
Exemption for the Protection of Privacy
A competent authority shall claim an exemption where it
reasonably determines that the requested information involves the personal
privacy interests of a third person.
Article 9
Public Interest Test
- A competent authority shall disclose the requested
information, notwithstanding that it has claimed an exemption, where to do so
is justified in the public interest having regard to both any benefit and harm
that may accrue from doing so.
- In determining whether disclosure is justified in the
public interest, a competent authority shall have regard to considerations
such as but not limited to, any failure to comply with a legal obligation, the
existence of any offence, miscarriage of justice, abuse of authority or
neglect in the performance of an official duty, unauthorized use of public
funds, or danger to the health or safety of an individual, the public or the
environment.
- If disclosure of the requested information for which a competent authority
has claimed an exemption under Articles 7 or 8 is determined to be in the
public interest, the competent authority shall notify the third party in
writing that the information shall be disclosed upon the expiry of 15 days of
receipt of the notice. The notice shall inform the third party of the
availability of appeal, the specific body to whom the appeal should be
addressed including the necessary contact information, and the deadline for
and cost of filing an appeal. The notice shall also inform the third party of
his or her right to apply to the Ombudsman of the Republika Srpska and shall
include the necessary contact information.
Article 10
Severance
If part of the requested information is determined to be exempt, the
competent authority shall sever that part and shall disclose the remainder of
the information unless the severance has rendered it incomprehensible.
CHAPTER III
ACCESS PROCEDURE
Article 11
Submission of a Request
- Requests for access to information shall be submitted
to the public authority the requester believes is the competent authority.
- A public authority shall neither ask for nor require
any reasons or justification for the request. A request for access to
information shall:
- be in writing in one of the official languages in
Bosnia and Herzegovina;
- provide sufficient detail as to the nature and/or
contents of the information sought so as to enable the public authority
exercising a reasonable effort to identify the requested information; and
- include the requester’s name and contact information.
- Requests for access to the requester’s own personal information shall, in
addition to satisfying the requirements provided for in subsection (2), only
be made by the natural person to whom the request relates, or by the
requester’s legal representative or someone authorized in writing by the
requester to access the information. If the request is made by the person to
whom it relates, that person shall sign the request and produce legal
photo-identification. If the request is made by the requester’s legal
representative or by someone authorized to access the information, that person
shall sign the request, produce his or her legal photo-identification, proof
of legal representation or authorization, and a copy of the requester’s legal
identification.
Article 12
Inability to Comply with a Request
- Should a public authority be unable to comply with a
request owing to the absence of formal requirements as provided for in Article
11(2) and (3), it shall, as soon as possible and no later than 8 days from
receipt of the request, notify the requester in writing, where such
notification is possible, that the request cannot be processed for that
reason. This notice shall inform the requester of the availability of appeal
to the specific body to whom the appeal should be addressed, including the
necessary contact information, and the deadline for and cost of filing an
appeal. The notice shall also inform the requester of his or her right to
apply to the Ombudsman of the Republika Srpska, and shall contain the
necessary contact information.
- For requests that fail to comply with Article
11(2)(b), the notice provided for in subsection (1) shall also include any
specific clarification questions and a copy of the guide provided for in
Article 20(a).
- Notices provided for under this Article shall inform the requester that a
reformulated request will be treated as a new request.
Article 13
Determination of Competent Authority
- Should the respondent authority not be the competent
authority, it shall, within 15 days from the day of receipt of the request,
transfer the request to the competent authority and inform the requester in
writing thereof. Transfer need not be effected if, within the same time
period, the requested information is determined to be in the control of the
respondent authority and the competent authority, upon being notified of the
specifics of the request, has no objections to the respondent authority
processing the request. The respondent authority shall thus be deemed to be
the competent authority and shall process the request in accordance with
Article 14.
- Should the competent authority not be locatable and the respondent
authority have control of the requested information, the respondent authority
shall be deemed to be the competent authority. Should the competent authority
not be locatable and the respondent authority not have control of the
requested information, the respondent authority shall, within the time period
provided for in subsection (1), provide the requester with written notice that
the request cannot be processed for this reason.
Article 14
Procedure Upon Receipt of a Request by the Competent
Authority
- Upon receiving a request for access to information,
the competent authority shall take all reasonable measures to collect the
requested information and shall consider all facts and circumstances pertinent
to the processing of the request.
- If access to the information is granted, either in
whole or in part, the competent authority shall notify the requester in
writing thereof. The notice shall:
- inform the requester that the information is
available for access in person at the premises of the competent authority; and
- inform the requester whether duplication is possible,
the estimated cost of the duplication, and that the duplication shall be
provided to the requester upon payment. Where the duplication of the
information is unusually complex or time-consuming, the duplication shall be
provided to the requester at a time that is mutually acceptable to the
requester and the competent authority; and/or include a copy of the requested
information where it can be supplied at no cost as provided for under Article
16.
- If access to the information is denied, either in
whole or in part, the competent authority shall inform the requester with
notice thereof. The notice shall:
- include the legal grounds for the exempt status of
the information including the Articles of this Act being relied upon, and all
material issues relevant to the decision including public interest factors
taken into account; and
- inform the requester of the availability of appeal,
the specific body to whom the appeal should be addressed including the
necessary contact information, and the deadline for and cost of filing an
appeal. This notice shall also inform the requester of his or her right to
apply to the Ombudsman of the Republika Srpska, and shall include the
necessary contact information.
- Notices referred to in subsection (2) and subsection (3) shall be sent out
no later than 15 days from receipt of the request. For requests that
necessitate processing under Article 7 and/or Article 9(3), this 15 day time
limit shall be correspondingly extended by the time limits provided for in
those Articles. The requester shall immediately be notified in writing of any
extension including the reasons for the extension.
Article 15
Language of Access
- Access to information shall be provided in one of the
official languages in Bosnia and Herzegovina and, where possible and
reasonable to do so, in the original language if different than one of the
official languages.
- A competent authority shall not be obliged to
translate the requested information from one of the official languages in
Bosnia and Herzegovina into another.
Article 16
Duplication Costs
A public authority shall not levy fees or taxes for requests
submitted or notices provided under this Act. Fees shall only be levied for
actual duplication costs, which shall be regulated by an Instruction of the
Ministry of Justice issued pursuant to this Act. For standard size photocopies,
the first ten pages shall be free of charge.
CHAPTER IV
PERSONAL INFORMATION
Article 17
Right to Amend or Comment on Personal
Information
- Every person has the right to ensure that his or her
personal information in the control of a public authority is correct or,
having regard to the purpose for which the information was collected or is to
be used, is current, complete, relevant to the legitimate purpose for which it
is held, or not otherwise misleading.
- Upon obtaining access to his or her personal
information, a requester may give effect to subsection (1) by submitting:
- a request for amendment. The request for amendment
may only be denied if the competent authority determines that the information
to which the request relates satisfies the conditions in subsection (1). If
the request is denied, the competent authority shall send the requester
written notification thereof that complies with the requirements provided for
in Article 14(3)(b); and/or
- a commentary which shall be appended to the personal information. The
commentary must be signed by the requester and must relate to the information
to which it will be appended. The competent authority shall, within 15 days
from receipt of the commentary, notify the requester in writing that the
commentary has been appended to the information.
CHAPTER V
RESPONSIBILITIES OF PUBLIC AUTHORITIES
Article 18
Duty to Assist
A public authority shall undertake all necessary steps to assist any natural
or legal person seeking to exercise any right under this Act.
Article 19
Information Officer
Each public authority shall appoint an Information Officer who shall process
requests made in accordance with this Act. Upon the appointment of the
Information Officer, his or her name and contact information shall be submitted
to the Ombudsman of the Republika Srpska.
Article 20
Requirement to Disseminate
Each public authority shall disseminate:
- (a) a guide which enables any person to access
information controlled by that public authority including but not limited to,
the contact information of the public authority and its Information Officer,
essential elements of the request procedure together with a sample request
letter, information regarding the categories of exemptions, access procedure,
duplication costs, avenues of redress, and any relevant deadlines. The guide
shall also refer to the indexed register as provided for in clause (b), as
well as how that register may be accessed. The guide shall be submitted to the
Ombudsman of the Republika Srpska, every public and every legal library in
Bosnia and Herzegovina, on the Internet where practicable to do so, and shall
be available upon request. This guide shall be free of charge;
- an indexed register of the types of information in
the control of the public authority, the form in which the information is
available, as well as where that information may be accessed. This indexed
register shall be made available in accordance with the dissemination
requirements as provided for in clause (a);
- statistics, in a quarterly report, concerning but not
limited to, the number of requests received, the types of information
requested, exemptions claimed, and any procedural or final decisions taken.
These statistics shall be submitted to the National Assembly of the Republika
Srpska and to the Ombudsman of the Republika Srpska, and shall be available
upon request;
- an annual report, detailing the functions, policies,
operations, organizational structure, and financial affairs of the public
authority, including but not limited to their proposed budget and annual
financial statement detailing actual prior year revenues and expenditures.
This report shall be submitted to the National Assembly of the Republika
Srpska, and shall be available upon request.
CHAPTER VI
THE OMBUDSMAN
Article 21
The Ombudsman
The Ombudsman of the Republika Srpska shall perform its
functions in relation to this Act in accordance with its mandate and
responsibilities as established under Article II paragraph 1 of the Constitution
of Bosnia and Herzegovina and Annex 6 of the General Framework Agreement for
Peace in Bosnia and Herzegovina, as well as in accordance with any subsequent
legislation regulating its competence and responsibilities.
Article 22
Activities of the Ombudsman
In performing its functions in relation to this Act, the
Ombudsman of the Republika Srpska may inter alia consider:
- creating and disseminating information such as
guidelines and general recommendations for facilitating the implementation and
administration of this Act;
- including in its annual report a special section
regarding its activities in relation to this Act; and
- proposing instructions on the implementation of this
Act to all competent ministries within the Republika Srpska, in cooperation
with the ombudsman institutions of Bosnia and Herzegovina and the Federation
of Bosnia and Herzegovina.
CHAPTER VII
FINAL PROVISIONS
Article 23
Cooperation
Every public authority in the Republika Srpska has the duty to assist public
authorities in Bosnia and Herzegovina and the Federation of Bosnia and
Herzegovina whenever the application of their respective freedom of information
legislation necessitates their cooperation.
Article 24
Responsibility for Application of the Act
- The Government of the Republika Srpska shall, within
three months of the entry into force of this Act, sign a mutual agreement with
the Council of Ministers of Bosnia and Herzegovina and the Government of the
Federation of Bosnia and Herzegovina in order to give effect to Article 23.
- The Ministry of Justice shall undertake all appropriate measures,
including but not limited to the issuing of Instructions, to ensure the proper
and effective implementation of this Act. The Ministry of Justice shall,
within three months from the date of the entry into force of this Act,
promulgate Instructions regulating duplication costs as provided for under
Article 16.
Article 25
Relationship with other Laws
- Where the provisions of the Law on the State
Administration, the Law on General Administrative Procedure, the Law on
Administrative Disputes, or other laws in force in the Republika Srpska, are
in contravention of this Act, the provisions of this Act shall be applied.
- This Act shall not diminish a person’s rights and
obligations related to access to information as regulated under the laws on
judicial procedure, including rules of evidence, under the laws relating to
professional legal privileges, or under the laws on administrative taxes,
including taxes for the obtaining of original documents but excluding taxes
for the making of a request or the obtaining of a decision.
In particular, this Act shall not prejudice the rights of a
natural or legal person to administrative appeal and judicial review.
- Any contravention of this Act shall be subject to
sanctions under the Criminal Code of the Republika Srpska, the Law on Minor
Offenses, administrative laws, and any other applicable laws in force in the
territory of the Republika Srpska.
- Legislation passed subsequent to this Act that is not
specifically aimed at amending this Act, shall not restrict the rights and
obligations contained herein.
Article 26
Transitional Provision
Every public authority, within three months from the date of entry into force
of this Act, has the duty to give effect to Article 20(a) and (b).
Article 27
Commencement
This Act shall enter into force eight days after its
publication in the "Official Gazette of the Republika Srpska", and shall be
applicable six months after that date.
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