Country

Montenegro

Montenegro

Name of law : The Law on the Access to Information
First adopted : 2005

Section Max ScoreScore
Right of Access 6 5
Scope 30 30
Requesting procedures 30 22
Exceptions 30 21
Appeals 30 4
Sanctions 8 2
Promotional measures 16 5
TOTAL 150 89

Right of Access

Indicator

Description

Scoring instructions
MAX score
Findings

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Article

Comments
1 The legal framework (including jurisprudence) recognises a fundamental right of access to information.Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.2 YES Constitution Article 51 "Everyone shall have the right to access information held by the state authorities and organizations exercising public authority. The right to access to information may be limited if this is in the interest of: the protection of life; public health; morality and privacy; carrying of criminal proceedings; security and defense of Montenegro; foreign, monetary and economic policy." Link to constitution (English version) http://www.comparativeconstitutionsproject.org/files/Montenegro_2007.pdf
2 The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.No=0, Partially=1, Yes=22 YES Article 2 "Access to the information filed with government age ncies shall be grounded in the following principles: 1) freedom of informing; 2) equal preconditions for exercising the right; 3) straightforwardness and accessibility to public scr utiny; 4) promptness of the procedure."
3 3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point)
3.2 (Y/N - max 1 point)
2 Partially Article 1 "Access to the information filed with government age ncies shall be free, whereas it shall be exercised in the manner prescribed by this Law. Any national or foreign legal and natural entity sh all be entitled to access the information filed with government agencies. Access to the information shall be guaranteed upon the principles and the standards contained in international documents dealing with the issues of human rights and freedoms."




Scope

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4 Everyone (including non-citizens and legal entities) has the right to file requests for information.Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. 2 YES Article 1 "<...> Any national or foreign legal and natural entity shall be entitled to access the information filed with government agencies.<...>"
5 The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.4 YES Article 4: "2)information shall be any document in written, printed, video, audio, electronic or other form, including also a copy or a part thereof, regardless of its contents and source (or author) or the time of its composing or the system of its classifying;"
6 Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).Score 1 point for only documents, 1 point for information2 YES Article 4 "Particular notions in this Law shall have the following meaning: 1)    the right of access to information shall encompass the right to ask for, receive, use and disseminate the information filed with government agencies; 2)    information shall be any document in written, printed, video, audio, electronic or other form, including also a copy or a part thereof, regardless of its contents and source (or author) or the time of its composing or the system of its classifying;"
7 The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).8 YES Article4: "3)    government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"
8 The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government4 YES Article 4: "3)   government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"
9 The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government4 YES Article 4: "3)   government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"
10 The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). Score 1 point if some, 2 points if all2 YES Article 4: "3)   government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"
11 The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). Score 1 point if some bodies, 2 points if all2 YES Article 4: "3)   government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"
12 The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. 1 point for public functions, 1 point for public funding 2 YES Article 4: "3)   government agency shall be any: state authority (legislative, executive or judicial); local self-government authority; local government authority; public institution; public company or other business entity that has been granted to perform public powers, which is founded by the State or a local self-government authority or which is funded from public revenues and with which the information are filed;"

Requesting Procedures

Indicator

Description

Scoring instructions
MAX score
Findings

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Article

Comments
13 Requesters are not required to provide reasons for their requests.Y/N answer 0 or 2 points2 YES Article 4. "disclosure of the information shall be any inspection of the contents of information by applicants or third persons, regardless of the purpose for their use;"
14 Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.2 Partially Article 12: "A request for access to the information shall contain the following: 1) basic data concerning any required information; 2)    the method in which such information is desirable to be available; 3)    data on applicant (first and family name, permanent or temporary residence place, firm and registered office) and / or its agent, representative or attorney." Is not that only a resident would be enough but the information to be given is reasonable.
15 There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. 2 YES Article 11: "The procedure for access to the information shall be initiated upon the request of any person that requires such access. Any request for access to information shall be submitted to a relevant government agency in writing, whereas directly or by mail or by e-mail. There shall be no dues payable for any request for access to the information."
16 Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. Score 1 point for help in formulation and 1 point for clarification procedures2 YES Article 17: "If any request for the information is incomplete or indistinct and, therefore, it cannot be acted upon, any government agency shall be in obligation to invite any applicant to eliminate deficiencies therein within eight day as of the day of delivering the notification thereof, whereby such government agency shall give necessary instructions for eliminating such deficiencies. In case deficiencies shown in a request for the information have not been eliminated within the prescribed deadline by its applicant, any relevant government agency shall reject such request by a conclusion. It shall be in obligation to notify any such applicant of such consequence, in its notification instructing elimination of such request deficiencies. In the case referred to in paragraph 1 of this Article, the deadline for making resolution thereupon shall commence on the third day after submission date of any corrected request."
17     Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.Score Yes=2 point, No=02 YES Article 7: "Disabled persons shall be provided access to the information through the method and form corresponding to their needs." Article 8: "Any government agency shall be in obligation to make possible to any applicant to access the information or a part thereof, except in cases provided for by this Law."
18 Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working daysScore 1 point for receipt, 1 point for max 5 working days2 NO Not mentioned.
19 Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.Score: 1 point for information not held, 1 for referrals or 2 for transfers2 NO Not mentioned.
20 Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).Score: 2 points for Yes, only 1 point if some limitations2 YES Article 12: "A request for access to the information shall contain the following: 1. basic data concerning any required information; 2. the method in which such information is desirable to be available; 3. data on applicant (first and family name, permanent or temporary residence place, firm and registered office) and / or its agent, representative or attorney."
21 Public authorities are required to respond to requests as soon as possible.Score: No=0, Yes=2 points 2 YES Article 16: "Any government agency shall be in obligation, upon any request for the information, to promptly make a resolution and to deliver it to any applicant,<...>"
22 There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.2 YES Article 16: "Any government agency shall be in obligation, upon any request for the information, to promptly make a resolution and to deliver it to any applicant, whereas not later than eight days as of the day of the request for information being submitted. Except for paragraph 1 of this Article and in cases when it is required for the purposes of protecting lives or freedoms of persons, any government agency shall be in obligation to promptly make and to deliver a resolution to any applicant, whereas not later than 48 hours upon such request has been submitted. If the range of the required information is big or if the searching for such information requires an extensive documentation inspection that would unreasonably disrupt regular operations of any government agency relevant therefore, the deadline for making and delivering a resolution, referred to in paragraph 1 of this Article, may be prolonged by 15 days at most."
23 There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.---2 YES Article 16: "Any government agency shall be in obligation, upon any request for the information, to promptly make a resolution and to deliver it to any applicant, whereas not later than eight days as of the day of the request for information being submitted. Except for paragraph 1 of this Article and in cases when it is required for the purposes of protecting lives or freedoms of persons, any government agency shall be in obligation to promptly make and to deliver a resolution to any applicant, whereas not later than 48 hours upon such request has been submitted. If the range of the required information is big or if the searching for such information requires an extensive documentation inspection that would unreasonably disrupt regular operations of any government agency relevant therefore, the deadline for making and delivering a resolution, referred to in paragraph 1 of this Article, may be prolonged by 15 days at most.
24 It is free to file requests.Score: No=0, Yes=2 points2 YES Article 1: "Access to the information filed with government agencies shall be free, whereas it shall be exercised in the manner prescribed by this Law.<...>" Article 11: " <...> There shall be no dues payable for any request for access to the information."
25 There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free. Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional2 Partially Article 19: "Any applicant shall bear the costs of the procedure for exercising the right of access to the information, in harmony with the separate regulation. The costs of such procedure shall be in connection only to actual costs incurred by a government agency with respect to transcribing, photocopying, translating and delivering any required information."
26   There are fee waivers for impecunious requesters ---2 NO Not mentioned.
27 There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. Score: No=0, Yes=2 points2 YES Article 4: "1) the right of access to information shall encompass the right to ask for, receive, use and disseminate the information filed with government agencies;"


Exceptions

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28 The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. 4 NO Not mentioned.
29 The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed10 YES Article 9
30 A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. Score 4 points and then deduct 1 point for each exception which is not subject to the harm test 4 YES Article 9: " <...> The interests referred to in paragraph 1 of this Article shall be considered significantly endangered if disclosing such information would cause them damages considerably bigger than the public interest in publishing such information is."
31 There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.4 YES Article 9: "<...> The interests referred to in paragraph 1 of this Article shall be considered significantly endangered if disclosing such information would cause them damages considerably bigger than the public interest in publishing such information is."
32 Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.Score 1 point for each2 NO Not mentioned.
33 Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.2 NO Not mentioned.
34 There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted2 YES Article 8: "Any government agency shall be in obligation to make possible to any applicant to access the information or a part thereof, except in cases provided for by this Law. Article13: If any part of information is restricted, relevant government agency shall enable access to the information after deleting the part of such information that is restricted."
35 When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.Score Y/N: 1 point for a and 1 point for b2 Partially Article 18: "Any government agency shall be in obligation to give the rationale for any document rejecting such request, and to state the reasons for restricting access to such information." Information about possible appeals is not mentioned.


Appeals

Indicator

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MAX score
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Article

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36 The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.2 YES Article 20: "A complaint may be presented against any document of a first instance government agency deciding upon any request for the information, before the authority performing supervision of such first instance agency’s work. If such authority does not exist, an administrative dispute may be instituted against such document."
37 Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). 1 for partial, 2 for yes2 NO Not mentioned.
38 The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.Score: 1 point for appointment procedure, 1 point for security of tenure2 NO Not mentioned.
39 The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.Score 1 point for reports to parliament, 1 point for budget approved by parliament2 NO Not mentioned.
40 There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.Score 1 point for not politically connected, 1 point for professional expertise2 NO Not mentioned.
41 The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.Score 1 point for reviewing classified documents, 1 point for inspection powers2 NO Not mentioned.
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 NO Not mentioned.
43 In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. 1 for partial, 2 for fully2 NO Not mentioned.
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES Article 24: "Any applicant presenting a request for access to the information or any other person interested therein shall be entitled to the court protection during any administrative dispute procedure. The procedure upon a suit instituted in relation to access to the information shall be urgent."
45 Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.1 for free, 1 for no lawyer required. 2 NO Not mentioned.
46 The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).Score 1 point for appealing refusals, additional points for appealing other violations.4 NO Not mentioned.
47 Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).Score 1 point for clear procedures, 1 point for timelines. 2 NO Not mentioned.
48 In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.Score Y/N and award 2 points for yes. 2 NO Not mentioned.
49 The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)1 for partial, 2 for fully. 2 NO Not mentioned.


Sanctions & Proteccions

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50 Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.Score 1 point for sanctions for underming right, 1 point for destruction of documents 2 NO Not mentioned.
51 There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).Score 1 point for either remedial action or sanctions, 2 points for both 2 NO Not mentioned.
52 The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.Score 1 for oversight body, 1 for immunity for others2 NO Not mentioned.
53 There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).Score 2 for strong protections, 1 for moderate protections2 YES Article 25 "No employee who, while performing assigned duties scrupulously, discloses information of misuse of or irregularities in performing any official duty, and who also informs the head of a government agency concerned or the relevant authority for combating forbidden activities, may be hold accountable."


Promotional measures

Indicator

Description

Scoring instructions
MAX score
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Article

Comments
54 Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.Score Y/N, Y=2 points2 YES Article 5: "Any government agency shall be in obligation to compose and to publish, in appropriate manner, a list of the types of the information filed with it, including also public registers and records; data on the procedure for access to the information; names of the persons authorized to act upon any request for access to the information; and other data of importance for exercising the right of access to the information (Guide for Access to Information)."
55 A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. Score Y/N, Y=2 points2 NO Not mentioned.
56 Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. Score Y/N, Y=2 points2 Partially Article 5: "Any government agency shall be in obligation to compose and to publish, in appropriate manner, a list of the types of the information filed with it, including also public registers and records; data on the procedure for access to the information; names of the persons authorized to act upon any request for access to the information; and other data of importance for exercising the right of access to the information (Guide for Access to Information)." Guide of access to information should be created.
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 NO Not mentioned.
58 Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. Score Y/N, Y=2 points2 YES Article 5: "Any government agency shall be in obligation to compose and to publish, in appropriate manner, a list of the types of the information filed with it, including also public registers and records; data on the procedure for access to the information; names of the persons authorized to act upon any request for access to the information; and other data of importance for exercising the right of access to the information (Guide for Access to Information)".
59 Training programs for officials are required Score Y/N, Y=2 points2 NO Not mentioned.
60 Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. Score Y/N, Y=2 points2 NO Not mentioned.
61 A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. Score Y/N, Y=2 points2 NO Not mentioned.