First FOI litigation experience in Croatia, Milena Gogic, Croatian Helsinki Committee

Croatian Freedom of Information Act (FOIA) was adopted in the last session of the Croatian Parliament in the previous mandate on 15th October 2003, in the package with other EU accession harmonization laws due to the NGO campaigning pressure, led by the Croatian Helsinki Committee for Human Rights. The then Croatian government simply rewrote the NGO Draft FOIA (which contained necessary international standards in this field); interestingly they made few important omissions. Thus the Croatian law lack one of the most important tools for disclosing information which is a three-part test (test of public interest, harm test and proportionality). After the elections in 2003/4 the NGO coalition filed the amendments accordingly to the new government but with no feedback so far.
According to the Croatian FOIA a court appeal can take place after the failure of the previous appeal procedure. Croatian law stipulates only a framework of an appeal procedure and litigation, stating that against the decision a public body information requestor (beneficiary of the right to information) may make an appeal to the competent body of second instance within 8 days after the day the decision was delivered. Second instance decision on grounds of appeal shall be passed and delivered without delay, but no longer than 15 days after an appeal has been submitted. Against the second instance decision or the final first instance decision of the obligee of the right to information denying the request, applicant my initiate the administrative dispute before the administrative court, in accordance with the law regulating the administrative dispute. The procedure thereof is urgent!

Since the Croatian law was adopted only two and a half years ago, practice of the Administrative Court based of FOIA cases has been still very scarce. There have been only 20 finished court proceedings so far. Among few court decisions, published on the Court website, it is evident that the court in all cases of so called „tacit refusal“, when public body did not neither provide access to information nor passed decision either on approval or denial of request within the legal term, brought decisions in favor of plaintiffs. Hence, it obliged public bodies to pass a decision on access to requested information, without entering the merit of the case. In several cases when public body denied the right to access information the Administrative Court, judging reasons of the denial, ruled in favor of plaintiff and obliged public body to allow access to information. From these cases one could conclude that the Administrative court does not allow en extensive interpretation of the exceptions of the right to access information.

However, regarding implementation of exceptions to the right to information regarding business secret, for example, the Croatian Administrative Court in one of its decisions attributed to the Croatian government an „autonomous will“ according to the Law on Obligations, although the government was not a corporation. In this decision the court stated that the government has a right to deny information because the government claimed it contained business secret.

In this case a plaintiff (NGO) pressed charge against the Croatian government which denied access to information regarding the contract made by the Croatian government and German Telecom on selling shares of the Croatian Telecom.
The government in its comprehensive answer to the charge claimed denial of the requested contract out of the fact that it was marked as “a business secret” and “confidential” which met legal ground for the denial of access. Given the fact that all contracts made in the second phase of privatization of the Croatian telecommunications, by it legal nature, represent multilateral acts concluded by three partners: the government, Croatian telecommunications and German Telecom, so these contracts may be published only with consent of all three parties. Hence, contract partners were entitled to mark them as a business secret what they did.
The Court accepted the claim of the government that the contract has legal consequences only between partners ho by their free will concluded and obliged to abide its content. In this case the free will of contractors made possible the denial of access to contractual terms to third persons and at the same time it was declared a business secret

According to that the Court grounded its decision on allowing the denial of access to information. Moreover, the Court accepted that the government did not act as a public body but as a (mere) contractual partner, equal to other partners, who concluded this contract based on its property right.

The Court interpreted the information, denied by the government, not as a result of exercising the power and its role as a public body, but as a result of its property rights disposed in this legal act under a principle of equality of contractors.

The Administrative Court in this case established that the government acted based on its property rights. However the government as such is not a legal person and therefore it can not be a beneficiary of property rights. In the concrete case the owner is Republic of Croatia and the Croatian government is merely the body onto which the public authority to manage property owned by the (people) of the Croatian Republic. Since the citizens are the constitutive element of the state one can pose a question on - may the government deny access to information on its economic activities which undertakes in the name and for the account of the state? The government is not an economic subject entitled for an autonomous will under the law on corporations. The government is always a political body even when it does not act as such.
Regarding the contractual stipulation on confidentiality of the contract one can raise another question: may the government deny access to information on concluded contract to the Croatian parliament to which is an obligee, as well?
OF COURSE, NOT!