Ion Gâlea

 Law no. 544/2001 on the free access to information of public interest;  Government Decision no. 123/2002 – Methodological Norms for implementation  Law no. 52/2003 on transparency in decision- making  Ordinance no. 27/2000 on responding to petitions  Law no. 554/2004 on administrative claims

 autonomy and de-centralization of implementation;  The Law does not create a central authority which would supervise the obligation of authorities to respect the right to free access to public information (as HU, IR, DE, UK – however, they also with data protection) ;  The execution of this obligation is left upon each authority or institution, notwithstanding if it they are central or local authorities.

 Judicial control is the core concept of the law  If an authority refuses to respond to a request for public information, the petitioner, after accomplishing the hyerarchical administrative comlpaint, has the right to contest the decision before a Tribunal

 Institutions have the obligation to create offices or departments within each authority or institution, that would be competent for public information and public relations, as well as persons with specific duties in this field

 i) institutions and authorities at central level are obliged to create at least an office competent for public information and an office competent for relations with media;  ii) de-centralized local structures subordinated to central authorities are obliged to create offices for information and public relations and to appoint persons competent for relations with media;  iii) communes (rural local authorities) are obliged to appoint persons competent for public relations and media relations.

 10 days for communicating the information (general deadline).  if the difficulty, complexity or volume of the work necessary to identify and render the information makes necessary to overpass this deadline, it can be extended to 30 days. However, the autority is obliged to inform the petitioner within 10 days that the deadline has been extended to 30 days.  5 days for refusal to make the information available and to motivate the refusal.

 omission to respond to a petition within the prescribed deadline is considered “tacit refusal”;  Stages of the procedure: - administrative complaint - judicial claim

 the “administrative complaint” is addressed to the head of the authority of institution;  The deadline to submit the administrative complaint is 30 days from the moment that the person learns about the refusal.  In case of tacit refusal, the 30 days are calculated from the expiration of the deadline within which the authority is obliged to respond - 10 days from the moment when the request is deposed

 If the petitioner receives a preliminary answer stating that the deadline has been prolonged to 30 days, the deadline for filling the administrative complaint is calculated from the expiration of these 30 days.  if the complaint is grounded, the answer shall be given within 15 days, which will comprise the requested information, as well as the disciplinary sanctions against the person responsible for the default  (no provisions with respect to ”if the complaint is not grounded”)

Special features of the juridical claim based on Law no. 544/2001, by comparison to ordinary administrative procedure: a) general administrative law provides that the administrative complaint is mandatory, while Law no. 544/2001 provides that the action before the Tribunal can be filled within 30 days from the expiry of deadlines provided by article 7 – meaning that the administrative complaint is not a mandatory step before going to court;

b) the Tribunal is always the competent court and the territorial competence is regulated more flexibly: the petitioner may fill the action, alternatively, at the Tribunal of its domicile or of the headquarters of the institution; c) in general administrative law, the petitioner must “prove an interest” in his complaint. In the field of the right to access to public information, the general principle is that the petitioner may request the information “just for curiosity”, the interest being self-understood

d) The complaint on the basis of Law no. 544/2001 is judged under “emergency procedure” (article 22 (5) of the Law. In practice, the case takes between 1 and 2 years, including the appeal before the Court of Appeals In practice, the respondent institution is bound by law to initiate an appeal – otherwise the legal department of that institution could be held accountable for the possible sanctions

 article 24 of the Law no. 554/2004 on administrative claims: if, within the administrative claims procedure, the Court obliges the authority to issue an act or any other document, the decision shall be executed within the deadline provided in it and, if the decision does not provide any deadline, within 30 days from the date when it is irrevocable

 Paragraph (2) of article 24: if the deadline is not respected, a fee shall be applied to the head of that authority, equivalent to 20% of the minimum gross salary for each day of delay.  The petitioner has the right to obtain damages for the delay.  paragraph (3), non-execution of decision after the fee provided by paragraph (2) represents a criminal offense, punishable with prison from 6 months to 3 years or with criminal fee.

 Article 25 regulates the procedure for applying the fee and for granting damages for delay to the petitioner. The competent court is the execution court, which delivers an expedite judgement, after summoning the parties.

Article 21 of the Law: if the administrative complaint is grounded, the answer shall be provided in 15 days and it shall contain the requested information and the disciplinary measures taken with respect to the faulty civil servant

 Methodological Norms, article 35: each institution or authority shall establish a Commission for Breaches of Free Access to Information, having the following duties: i) to receive administrative complaints; ii) to conduct the administrative inquiry; iii) to establish whether the complaint is grounded; iv) to propose disciplinary sanctions and v) to draw the answer to the petitioner.

 Disciplinary Commission  Possible sanctions: a) written notice; b) reduction of salary with 5-20% for up to 3 months; c) suspension of the right to promote between 1 and 3 years; d) placement in an inferior professional degree, for up to 1 year; e) releasing from civil service

Involvement of the media - media/journalists are a key component of requesters of information; - heads of public institutions are politicians – more sensible to media reactions than decisions of other authorities - tool: establishing a confident relation with the media

Law: - Principle according to which access of media to information of public interest is guaranteed; - Obligation to appoint a speaker (art. 16) - Obligation to organize a press conference, at least monthly – within which questions concerning information of public interest are answered (art. 17)

- Obligation to grant accreditation to journalists, without discrimination; - Accreditation is granted upon request, within 2 days; - Authorities may refuse granting accreditation or may withdraw accreditation only for actions that impeach the normal activity of the authority, not for opinions expressed by the journalist; - Refusal is sent in written and does not affect the right of the press body to obtain accreditation of another journalist

- Obligation to inform in due time about the press conferences or other media actions; - Access of media to press conferences or other public actions may not be restricted, under any reason; - Obligation to allow the presence of the media to activities to which public is participating; - Journalists do not have the obligation to publish information provided by the authorities

Government Decision 123/2002: - Functions of press officers: - To provide to journalists, promptly and completely, information of public interests concerning the activity of that institution; - To provide accreditation within 2 days, without discrimination; - To inform in due time about media events and to grant access to journalists

Functions of press officers: - To ensure the dissemination of press releases, press documents interviews and briefings, within the media events; - To provide to journalists press files related to the activity of the institution; - Not to refuse or withdraw the accreditation, except for actions actions that impeach the normal activity of the authority; - In case of withdrawal, to grant accreditation of another journalist to the respective press body

Accreditation: - Is granted upon request to journalists and press bodies; - Permits are not transmissible; - Permits allow the physical presence of the journalist inside the headquarters of the institution or at the activities of the institution to which access to media is granted

 Accreditation does not provide for the right to control the published materials;  Participation of journalists to activities of public institutions cannot be restricted or limited through internal regulations that exceed the framework of Law 544/2001;