In 2022, National Police investigators drew up 144 reports as a result of the examination of requests in which applicants alleged violations of the provisions of the Law on Access to Information. At the same time, during the period mentioned, fines amounting to more than 79 thousand lei were imposed on these violations.

While until now the legislative framework for violations of the Law on Access to Information provided for fines imposed on individuals or persons in positions of responsibility responsible for providing answers, a new draft law is currently under discussion at the Ministry of Justice of the Republic of Moldova, which provides that the subject of liability will no longer be the head of the information provider, but the provider as a legal entity. Experts say that such a provision should be revised, or for violation of legal provisions the person responsible for providing the answer should be penalized financially and not be paid money from the budget of a public entity.

Fines paid amounting to 30 thousand lei

According to data provided to Transparency International-Moldova (TI-Moldova) by the National Inspectorate of Public Security, over the past year, fines for failure to provide information of public interest were paid in the amount of more than 30 thousand lei, out of the total amount of more than 79 thousand lei of all fines imposed.

According to the current Access to Information Act, the answer must be given to the applicant as soon as the information provider has it ready. However, Sergiu Bozianu, an expert in the field of personal data, points out that with the repeal of the Law on Petitions and the entry into force of the Administrative Code, a number of interpretations and misunderstandings have arisen over some provisions of the Law on Access to Information. For example, some civil servants qualify requests for access to information as petitions. “The reply to a request for access to information must be provided within a maximum of 15 working days, with the possibility of extending this deadline by 5 working days, with prior information to the applicant. Instead, the petition must be dealt with within 30 (calendar) days, with the possibility of an extension of 15 days (maximum 90 days), with the information of the petitioner,” the expert notes.

The Moldovan Ministry of Justice is currently debating a new draft law shortening this time limit – from 15 working days to 10 calendar days. The draft law on access to public information, drafted by the Ministry of Justice and subject to the public approval and consultation procedure, proposes another amendment, namely, changing the concept of legal liability.

TI-Moldova: The head is directly responsible for the proper functioning and management of administrative activities

Thus, according to the new amendments, the subject of liability is no longer the head of the information provider, but the provider as a legal person. An analysis by TI-Moldova shows that such an approach is inferior to the original concept. “From what was mentioned in the initial Information Note – such an approach would have had a more beneficial impact that would have resulted in real and effective accountability of the persons providing internal managerial control within the information provider. However, it is precisely the manager who is directly responsible for the proper functioning and management of the administrative activities and who has the powers necessary to make internal structural or institutional changes. It is also noted that such an approach would have led to a change in professional conduct in relation to compliance with regulatory provisions. However, the financial penalties would have concerned the institutional budget and not personal assets. Another reason given was that it would have avoided the risk of the fines imposed on public authorities and institutions not being used. However, the procedure for enforcing monetary claims in the case of legal persons governed by public law is more difficult and time-consuming.

Another argument was that it would have contributed directly to the increase in state budget revenue. However, the fines would have been collected from the account of the persons responsible, not from the institutional budgets. We therefore suggest maintaining the original concept of legal liability. And to avoid the risks of double punishment for the same offence (non bis in idem), we suggest excluding the contravention component of Article 71 of the Contravention Code. If the above proposal is not accepted, we consider it important that, at the very least, the amounts of the fines imposed on information providers for violations of the law should be raised. However, despite the fact that the subject of financial liability has been substituted (from a natural person to a legal person), the amount of the fines has remained unchanged and is insignificant for the institutional budget of the authorities or public institutions”, it is mentioned in the expert opinion carried out by TI-Moldova.

It should be noted that currently the Administrative Code of the Republic of Moldova (Article 71) provides that “intentional violation of the legal provisions on access to information or those on petitions is punishable by a fine of 9 to 15 conventional units imposed on a natural person, and a fine of 18 to 30 conventional units imposed on a person in a position of responsibility”. At the same time, the same legislative instrument regulates that the submission, upon request, of a reply with manifestly erroneous data is punishable by a fine of 27 to 33 conventional units imposed on the person in charge.

Journalists and media outlets often complain that public authorities, both at central and local level, fail to provide information on time, respond late, superficially or, in many cases, not at all. So, in order to hold the authority accountable, newsrooms take legal action, but this wastes time and financial resources, making the work of media representatives more difficult.

Article written by TI-Moldova