Will Slovakia amend its Freedom of Information Act?

In a speech given to the Slovak Association of Municipalities (ZMOS) in May this year the Slovak Prime minister Robert Fico argued that the Freedom of Information Act is “misused by students and private interests, therefore the law should be revisited as soon as possible”. Municipalities, the loudest critics of Freedom of Information (FOI) legislation, got their way, as the PM strongly endorsed their position. A planned revision of the legislation is scheduled for the first quarter of 2014, with many wondering whether Slovakia is taking a step backwards in its relatively progressive record in this area of public policy.

Foto: Flickr/ Dallas Photoworks


The thinking of the incumbent Government on this issue is a reversal of the steps taken by previous administrations. The first version of FOI legislation was introduced in 2000, by a group of MPs previously active in civil society. At that time, the legislation represented a major breakthrough in the state-citizen relationship. For the first time, citizens were allowed to request the release, within eight working days, of any information that a given state body, municipality or  state-owned private company had at their disposal.

Even with changes of governments and ruling parties, the legislation stayed largely intact. The FOI act was further modernized by the government of Iveta Radičová (2010-12). As of 2011 all of the contracts signed between the public in any organizational form and private companies have to be published in order for those contracts to come into effect. This policy is generally viewed as one of the most positive achievements in the otherwise troubled and short-lived Radicova government.

The importance of this legislation was also recognized internationally; when Slovakia was invited to be one of the founding members of the US led Open Government Partnership (OGP). As a regular OGP member, Slovakia agreed to introduce further progressive measures in open governance such as the massive release of all government-held data in a form that will allow their reuse by the civil or private sector.

Even though the ambitions of OGP are commendable, the Slovak public sector still has a problem meeting even the basic objectives of FOI. A number of public bodies still cannot or are not willing to fulfill the legal requirements to ensure the  right to information of people in the country. Prompted by the PM’s speech, we decided to carry out a survey in the Slovak public sector to find out whether municipalities and other public institutions are really that overburdened with FOI requests.

When you request information, the process itself is your first obstacle

When we began our research, we did not anticipate any problems with survey returns, as the FOI requests we surveyed were submitted under a legal regime that  provides the citizen with a strong footing, at least on paper. This regime includes a strict time limit of eight working days to process a request, a limited number of reasons for which the body can postpone or reject the release of data, and  tools for the administrative and judicial review of the actions taken by individual public bodies. As observed above, this applies only on paper, not in practice, however.

We contacted 599 municipalities (a representative sample in size and regional distribution – 20% of all municipalities in Slovakia), seven ministries and state-run bodies, and eight field offices of the Public Insurance Company (Sociálna poisťovňa). We contacted the institutions via email (as the legislation allows), not disclosing our affiliation with Parliament, in order to simulate citizens’ experience as much as possible. We requested the release of FOI requests aggregate data in their institution for the years 2010-2013.

Of the 599 municipalities, only 375 replied to our request and provided the information. The problem was not only in small villages, which supposedly don’t have enough capacity to deal with all of their legal obligations, but also in towns with a large administrative workforce and, more worryingly, with some of the state administrative bodies surveyed.

Based on the responses we received and the follow-up phone calls with institutions that  didn’t respond to our request, we came across two main problems in the approach of the institutions to our requests.

First, quite surprisingly, some of the institutions are not able to manage correspondence via email and lack even basic competence in information and communication technology (ICT) management. Some of the municipalities did not check their email accounts for days, with a strikingly high number of emails having “got lost”. A disturbingly large group of municipalities does not treat their electronic correspondence as official mail, so in many cases no archives were reported to exist at all. It is obvious that efficient management of information is a problem here. If these institutions mismanage their archives and don’t use ICT tools where possible, answering requests can be burdensome, as it might, for example, entail manual transcription.

Secondly, the institutions are very creative in their interpretation of the law. Some said that they could not provide us with the requested information, as they do not have it – even though the law requires them to keep a registry of requests. Some refused to give this information, stating that this cannot be provided to citizens who are not local residents. And some simply said that they would not comply, as they have more important matters to attend to. Probably the saddest argument we heard was that they need to take care of their “gypsies”.

Arrogance in communication between public institutions and citizens has a tradition in Slovakia and based on our experience it seems this tradition will have a bright future.

The application process is a basic precondition to establish a working FOI regime. It needs to be simple, predictable and efficient. Obviously, there is still a way to go in that.

Buried under a ton of requests?

The main argument of the critics of the FOI legislation is that it allows for the frivolous filing of hundreds of requests. According to some, there are small municipalities that cannot do anything else because they need to release information to citizens based on the legislation. Again, if that were the case we would have a problem. Our data, however, does not support this claim.

As table 1 shows, the number of requests filed is small and constant at around 1 request per 1000 inhabitants per year. More than 30% of the surveyed municipalities had received no requests for information since the beginning of the monitored period (2010-13) and 75% had to deal with a maximum of 6 requests for the last three and half years.  This is certainly a manageable workload, especially in the case of bigger municipalities, as these have a sizable administrative staff in their town halls.

Similarly we found a very small number of requests that were completely denied. We interpret this to mean  that citizens are able to file requests that are in line with the legislation.

Table 1: Municipalities: Average number of FOI requests per year (based on 2010-2013Q1-2)

Municipality size/ region

0-500

500-2500

2500-5000

5000-2000

Obce 20 000+

Total

Bratislavsa

1,14

8,50

25,14

65,42

108,14

41,67

Trnava

0,76

1,32

8,80

13,04

22,14

9,21

Trenčin

1,87

1,66

5,14

11,80

57,23

15,54

Nitra

0,44

1,36

n/a

24,86

38,57

16,31

B. Bystrica

0,73

0,65

2,28

14,11

29,40

9,43

Žilina

2,34

0,87

4,14

11,90

53,00

14,45

Prešov

1,68

0,95

9,00

16,00

87,00

22,93

Košice

0,50

1,32

2,85

6,28

20,10

6,21

Total

1,18

2,08

8,19

20,43

51,95

16,97

Average per 1 000 inhabitants

2,36

0,83

1,63

1,01

1,03

As a comparison, we looked into similar data within ministries and other state- administration bodies. Here the numbers are much higher. This should not come as a surprise, since ministries are responsible for large-scale policy making or transfer-schemes and subsidies. Not only citizens, but also institutionalized NGOs, the media and private companies have a natural interest in data that those institutions have at hand.

Table 2: Other institutions: Average number of FOI requests per year (based on 2010-2013Q1-2)

Recieved

Denied

Min. of Social Affairs

208,57

18

Min. of Defence

320

n/a

Min. of Health

178

14,85

Min. of Finance

853,14

41,42

Emergency reserves

40

0,85

State Prosecution Service

255,4

18,57

National Security Bureau

40

1,71

Public Insurance Company Field Offices

5,5

1,71

Local Construction Oversight Offices

16

0

Nonetheless, larger numbers of requests were recorded only for state institutions that have an agenda that is more general and citizen-oriented (health, social affairs, state prosecution), while for more specialised institutions such as the National Security Bureau (NBU) and the State Material Reserves Administration (SSHR) the number was smaller and  the content of requests was limited to their technical character.

Look who’s asking …

A second argument, often used by critics of the legislation is that even if the nominal number of requests is not high, they are either clearly frivolous or the legislation is “misused” by students for their thesis writing and private interests.

From the data we were able to retrieve, again, we found very little to support this. Most of the requests dealt with ordinary issues in the life of the community such as housing or public order. It is true, though, that one of the most frequently occurring requests was for information on the remuneration and benefits of the mayor and local councillors, wasteful government spending being a legitimate public concern.

The critique of possible student or private use of the legislation really shows the approach of some politicians and bureaucrats to open data. Students and business people are taxpaying citizens of Slovakia, who should have equal access to all available information. Especially in these two examples, there is quite a reasonable secondary benefit to the requests,  scholarly output  based on them and the private application of the data which can lead to the creation of jobs and a rise in  the quality of life.

It is fair to say, however, that there were some extreme examples of requests both in our sample (“what are the rules for head cover wearing by the municipal police?”) and in the general media (“a citizen who sent out 500 requests and then sued those who didn’t respond for damages”) but the effect on the aggregate numbers is negligible. As in other areas of the law, extreme cases should be dealt with by the courts, as they are already. The worst solution (and the very definition of conflict of interest) would be to leave the power to decide what’s frivolous within the same institution that holds the information.

Also, it turns out that institutions will both knowingly and unknowingly provide data in a form that makes their reuse extremely difficult. Scribbled handwriting on poorly scanned sheets of paper was not exceptional. Some institutions such as the state-run social insurer (Sociálna poistovňa) even have an internal guideline that allows for data release only in pdf formats (and is ironically not followed by all of its field offices).

Ways to improve

If the government decides to amend the FOI legislation, this opportunity should be used to improve the legislation where it is needed. Most importantly, one of the easiest ways to improve the efficiency of the process would be not to reply to individual requests, but rather to pre-emptively release the most frequently requested data – ideally in  easy-to-use datasets (See the British example). In the case of individual requests, clear standards must be set for the formal attributes of released data, so no public data is erroneously released and no public money is wasted by institutional sloppiness.

This is the easy part. The real challenge is to get politicians and bureaucrats to think about open data as an opportunity to improve the lives of their citizens and raise the quality of democracy. This begins with building capacities on the basic levels of public administration, so they are able to deal with open government in an efficient manner, and ends with a general government philosophy that embraces open data.

This essay built on research of FOI requests in Slovakia. The full version of the working paper (in Slovak) is published here.

Martin Dubéci

Martin Dubéci

works as a freelancer. Previously he worked at the Ministry of Finances for the project Minerva and later as advisor to the Deputy-Speaker of the National Council of the Slovak Republic. In 2014 he was Chief of Staff of Radoslav Prochazka´s 2014 Presidential campaing and later Head of Political Strategy&Analytics of the political party Sieť and think-tank Alfa.