In an attempt to determine how the use of official vehicles in the BiH Presidency was regulated, we asked the Presidency to provide us with our internal Ordinance on the Use of Official Vehicles. The request was rejected with a legally unjustified explanation that “there is no public interest” for him.
Having determined that the BiH Presidency has been de facto exempted from all regulations on the use of official vehicles, with the obligation to adopt its own rules of procedure and to seek the approval of the Council of Ministers, we have addressed both institutions with a question as to whether the Presidency of BiH, in the meantime, Its own rules and, if so, whether the Council of Ministers has given its consent to it. We also requested that our policy, if adopted, be delivered to us. We sent both inquiries on April 26, 2017.
The Council of Ministers of BiH soon received a response that he did not have the requested information and that the request was forwarded to the BiH Presidency for further action – although the second issue explicitly referred to the consent of the Council of Ministers to the adopted Presidency Rulebook, which is certainly the information that is in Possession of this institution.
Since the Presidency of Bosnia and Herzegovina did not receive an answer or confirmation that the request was received, in the beginning of May, we addressed them by word of mouth. Then we were told that our request for access to information was not on the protocol, with the comment that the reason is that we “probably asked for personal information about members of the Presidency.” We explained that no personal information was requested, but a rulebook on the use of official vehicles, and we were told to send the request again, which we did on May 5th. The answer arrived on May 19, 2017.
Although it was previously told us that the request sent in April “was not signed and protocoled”, the answer was given exactly on the request received on April 26, and not on the repeated request of 5 May. However, procedural errors and delay with a response (a maturity of 15 days) turned out to be a minor problem in relation to the content of the response itself.
Namely, the Secretariat of the Presidency refused to submit to us the Rulebook regulating the use of official vehicles, on the grounds that it was not information of public interest. At the same time, the Secretariat offered a completely misinterpretation of the Freedom of Access to Information Act (ZOSPI), which was essentially violated by this response.
The BiH Presidency Secretariat, as decision maker and personal data controller in this case, assessed that the information in points I and II of the operative part of the decision could be made available to the public. However, after conducting the public interest test, the first-instance body is the position that publishing the information from point III of the operative part of the decision is not of public interest, all of this in accordance with Article 5, paragraph 1, item b) in conjunction with Article 9 of the Freedom of Access Act Information in Bosnia and Herzegovina.
Secretariat of the BiH Presidency, response to the request for access to information
The fact is, however, that the Registry had no right to “examine the public interest” to provide information unless it had previously established that the requested information constituted an exception to publication. Exceptions are defined in Articles 6 to 8. ZOSPI, but the secretariat only referred to the fifth and ninth members, ignoring those members that define the conditions under which the requested information can be denied.
Article 5 of ZOSPI states that an exception to the disclosure of the requested information is established in cases where a public authority establishes an exception within the meaning of Articles 6, 7 or 8 of the same law, and if a public authority, after carrying out a public interest inquiry pursuant to Article 9, concludes that the information Is not of public interest.
Exceptions to publication, as prescribed in Articles 6 to 8. ZOSPI, refer to information that would endanger the protection of the interests of foreign policy, security, monetary policy, crime prevention, third party privacy, confidential commercial data, etc. The public interest test prescribed in Article 9 shall be carried out only if such exceptions have been previously established. In addition, its purpose is not to restrict access to information, but contrary to that – the public interest is being examined to determine whether the information should be disclosed even if it is an exception to publication, but it is estimated that there is a public interest in it:
The competent public authority shall publish the requested information, regardless of the exception established in the sense of Art. 6, 7 or 8, if justified by the public interest, and take into account any benefit and any damage that may result from it.
“In deciding whether the disclosure of information is justified in the public interest, the competent public authority shall consider circumstances such as, but not limited to, any non-compliance with the legal obligation, the existence of any offense, judicial error, abuse of power or negligence in the exercise of official duty, unauthorized The use of public funds, or the danger to the health or safety of the individual, the public or the environment
Article 9 of the Law on Freedom of Access to Information
It is clear that the procedure for determining the public interest is done only if the information is established as an exception to the publication, and that it is not an implied procedure for any requested information, as implied in the Presidency’s response. In its reply, however, the Secretariat did not specify that the requested information was established as an exception to the publication, which means that there was no basis to examine the public interest in its publication. The reason for this is probably in the fact that the Rulebook on the Use of Official Vehicles of the Presidency of BiH can hardly be brought into connection with any of the prescribed exceptions, which allow the denial of information requested.
The Law on Freedom of Access to Information is very clear in that information controlled by public authorities is a public good, to which access should be granted to the greatest extent (Articles 1 and 2 of the Law), and that the public authority will not question and request reasons for the justification of the application For access to information (Article 11). The law is also unambiguous in the provisions governing the manner in which the requested information is denied: Article 14 provides that the decision rejecting the request for access to information must state the legal basis for the status of the exemption of information , Including all material issues that are important for making the decision, and taking into account the public interest factor.
The Presidency acted contrary to all these provisions, with the obvious aim of denying the public the only existing, internal regulation by which this institution itself set rules for the use of official cars. On this decision we sent an appeal to the Council of Ministers of BiH as a second instance body and asked for the opinion of the Ombudsman institution, which is in charge of monitoring the implementation of the Freedom of Access to Information Act.
At this moment, the only, somehow, an insight into the content of the internal Rulebook of the Presidency, can be found in the Report on the Financial Review of the Presidency of BiH for 2014. It states that the internal Rulebook defines that the members of the Presidency, the heads of the Cabinet and the Secretary General, who can grant permanent use to other employees of the Presidency (which the Secretary General approved and approved by their deputies), have the right to use all day and daily use of passenger vehicles. The report further states that the Regulations regulate “use, manner of issuing and ordering travel orders, maintenance of vehicles, fueling, vehicle protection”, but there is no mention of any limitations on the number of vehicles that the Presidency may own or the price of vehicles being procured. These were, in fact, the limitations set by the Rulebook on the conditions of procurement and the manner of using official vehicles in the institutions of BiH, which were applied by the Presidency.
The audit report also lists a number of identified irregularities in the use of official vehicles:
By checking travel orders for vehicle-based vehicles, we noticed that in some cases, large miles of vehicles crossed are recorded as “loko ride” (approx. 100 km per day). We also noted that in some cases, the relations entered in travel orders for vehicles were not accompanied by a travel order for persons, which is not in accordance with the decision of the Council of Ministers of BiH on the manner and procedure for exercising the rights of employees in the institutions of Bosnia and Herzegovina to compensation for official Travel. Certain Vehicle Orders are not properly filled, that is, only the initial and final mileage for the current month are entered, without entering the routes and kilometers traveled.
Report on the financial audit of the BiH Presidency for 2014
The report for 2015 states that the Presidency, following the recommendations of 2014, “increased control over the costs of using and maintaining official vehicles”. Review all proceedings of the Presidency and the Council of Ministers, including the retroactive annulment of existing regulations and the purchase of two cars worth a total of 400,000 KM in just one year; And the obvious intention of the Presidency to hide its internal documents that regulate this issue in any way, nevertheless point to a different conclusion.