Open…. Access, Cities, Contracting, Data, Design, Development, Economics, Education, GLAM, Government, Hardware, Humanities, Mapping, Science, Source, Sustainability, Transport and so on. The list can go on and on. There is no limit to the concept of “open” as there is no limit to free access to public information. It becomes new, it positions itself to the situation, reinvents and repositions once more. A neverending cycle that only takes into account the public interest and citizen engagement.
These “Open” initiatives are some of the topics discussed at Open Knowledge Festival organized in July 2014, in Berlin, by Open Knowledge Foundation – a network of experts passionate about open data, advocacy, tehnology and consultancy or training. 95% of the topics are related to mechanisms of governmental transparency, citizen consultation and engagement. The OK Festival brought together a network of enthusiasts – programmers, activists, analysts, governmental experts and so on –who had discussed for several days ideas and instruments for the purpose of making this world better, more accessible and participative.
As I went through the event’s agenda I realized that I never thought 15 years ago that the topics discussed during the event would be addressed in Europe, much less in Romania. Well, neither to this day the phenomenon has taken strong roots in Romanian society, but there is a series of signs that make me believe that we will address them shortly. It may happen under the Sponge movement.
In 2000, Romania was barely laying the groundwork of the “holy trinity”, as one of my friends likes to call it, for the purpose of fighting against corruption and promoting the principle of decisional transparency. Then, just as it happens today, some representatives of the civil society, and other people as well, had advocated and put pressure on decision makers so that Romania had a Law on access to public information – Law no. 544/ 2001 (a year after the adoption of another essential law – no. 24/ 2000 on the legislative technique norms for drawing up regulatory acts) and then Law no. 52/2003 on decisional transparency in public administration.
Since their adoption, particularly Laws no. 544 and 52, and until now, hundreds of articles, reports, assessment reports, complaints and applications for court proceedings and thousands of public information requests have been drawn up. All these have the role of encouraging the government and public local administration to enforce and comply with the legislation, but also to motivate citizens into building up a “relationship” with the governing authorities (in addition to exercising their voting right). An accountable public administration and active citizenship are essential for making a government transparent and efficient.
The main aim of this article is to recall and bring up a case that I believe it has been too easily overlooked: Roșiianu vs. Romania at the European Court of Human Rights. The Court’s decision in support of the rights to public information and freedom of expression opens doors to governmental transparency where this principle is very much hidden and blocked, not only in Romania, but also within Europe.
On June 24, 2014, the European Court of Human Rights ruled in favour of Ioan R. Roșiianu, a journalist from Maramures county in Romania, in his legal proceedings against Romania. The complaint submitted at ECHR denounced that the Romanian authorities had breached articles 6 and 10 of the European Convention on Human Rights mandating the right to a fair trial and freedom of expression.
The story behind the case, in brief:
On February 8, 2005, and four years since the adoption of Law no. 544 on free access to public information, I. Roșiianu requested the mayor of Baia Mare certain items of information of public nature for the purpose of writing a journalistic article. The request included 10 items of public information regarding the Baia Mare city hall’s activities – national and foreign travel costs, publicity contracts, costs regarding the organisation of public festivals and so on.
Under Law no. 544, public authorities shall answer, in writing, to the request within 10 days or in 30 days depending on the difficulty and complexity of the documentary work, while the refusal to disclose information shall be communicated within 5 days from the reception of the petition.
I. Roșiianu didn’t receive any answer to his request. Therefore, he brought his complaint before the administrative Court to summon the mayor to disclose the public information requested. After a few months, the Maramureș Court ruled in favour of Rosianu, but the city hall continued to refuse to answer the request and enforce the judicial decision.
At the end of February, I. Roșiianu requested the Baia Mare City Hall yet another set of public information regarding commercial premises and property exchanges and the manner in which the City Hall’s public funds had been invested or spent. On April 11, the City Hall communicated an incomplete answer that did not include the information requested. Therefore, Roșiianu made another court claim against the City Hall, and the Maramureș Court ruled in his favour again.
As a result of other simultaneous actions (he addressed the Baia Mare court requesting a fine to be imposed on the mayor, he filed a criminal complaint at the Prosecutor’s office reporting abuse of authority, he requested an enforcement officer to recover non-pecuniary damages), on December 12, 2005, Cristian Anghel, the mayor of Baia Mare City Hall, invited Roșiianu at the City Hall’s headquarters to take 402 pages of public information that Roșiianu had previously requested and to pay a 90,4 lei fee for photocopying costs.
On April 26, 2006, the Maramureș Court ruled in favour of the journalist’s claim and compelled the mayor to pay a 2816 lei fine for failing to comply with a final court order:
The Court ruled that “access to public information is not achieved when separate documents put at the disposal of the petitioner invite him to select the information he is interested in […]. The photocopies per se cannot stand in for clear and precise answers to every question. Otherwise, the documents containing the information are open to a variety of interpretations and the petitioner’s interpretation may be totally different from that of the public authority’s; as a result, the public authority may have to give additional clarifications and justifications and this does not respect the spirit of the law.
Roșiianu’s efforts to receive public information did not stop there. On May 9, 2005, he requested other public information, but the outcome of his request was the same as in the previous two requests.
The Roșiianu case is not unusual in Romania. Many organisations and citizens have filed court actions against local authorities and public institutions for their refusal to answer public information requests. What is uncommon is to file an action at the European Court of Human Rights. The merit goes to the journalist for his determination to deal with an opaque public authority and to APADOR CH, the nongovernmental organization that took on the case and represented it at the ECHR.
Under ECHR law, Article 6 that guarantees the right to a fair trial provides the “enforcement of final and binding court decisions that, in a state governed by the Rule of Law, cannot remain innefective at the expense of a party. The enforcement of a court judgement shall not be hindered, invalidated or excessively delayed”.
Furthermore, ECHR found, on the basis of Article 10, that Romanian authorities had infriged “the freedom of expression and the freedom to receive and impart information without interference from public authorities”. This translates into an act of imparing a journalist’s access to information of public nature and to further inform a wide audience.
Under these two articles, ECHR ruled that Romania must pay 4000 euros in respect of non-pecuniary damage.
In regard to Open Data*, there is a close connection between the public information that needs to be open and the manner in which information is obtained. Until recently, public information and data have been requested on the basis of Law no. 544 from 2001 and have been delivered by public institutions in hard-copy formats through post mail or, at best, they were sent within an read-only format .pdf format.
Since the Romanian Government signed the Open Government Partnership in 2011, things have gradually started to change. The Government assumed the responsibility to improve transparency and efficiency in public administration, and also to increase the quality and the number of open data published by public institutions. At the moment, some nongovernmental organisations, along with the Department of Online Services and Design consistently request public institutions to deliver the information they manage (the data sets can be found on ogp.gov.ro/guvernare-deschisa/date-deschise, collected and organized in online databases).
It remains to be seen whether, in the context of the case won at ECHR and the Open Government movement, public institutions in Romania, and in particular local authorities, will enforce the provisions of the Law mandating free access to public information: send replies within the time limits, complete set of information delivered to citizens, journalists and NGOs, ex officio publication of public information on the institutions’ online platforms, data in open formats.
Since June 2014, the European Court’s decision regarding Roșiianu case has become part of the European and Romanian jurisprudence.
* the concept of “open data” defined by the Association for Technology and Internet is “public data are data managed by public authorities that are not subject to personal, privacy and security restrictions. Open data refer to information that is free to access, reuse and share.
You can find additional information about the Rosiianu vs. Romania case on: