Law on Access to Official Documents of Kosovo (2003)
LAW ON ACCESS TO OFFICIAL DOCUMENTS
Pursuant to Chapter 9.1.26 (a) of the Constitutional Framework,
For the purpose of enabling citizens of Kosovo to participate more closely in the decision-making process of public institutions and guaranteeing that the public institutions enjoy greater legitimacy, transparency and are more effective and more accountable to the citizens of Kosovo,
the Assembly of Kosovo hereby adopts the following:
I. GENERAL PROVISIONS
Section 1
Purpose
The purpose of this Law is:
(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to documents of:
(i) any Provisional Institution of Self-Government (PISG) organ or agency thereof,
(ii) any municipality organ or agency thereof,
(iii) any of the independent bodies and offices listed in or established under Chapter
11 of UNMIK Regulation No. 2001/9 (Constitutional Framework);
(iv) Kosovo Trust Agency
(b) to establish rules ensuring the easiest possible exercise of this right; and
(c) to promote good administrative practice on access to documents.
Section 2
Definitions
For the purpose of this Law:
(a) “ institutions” shall include all Provisional Institution of Self-Government organs and agencies thereof, KTA, municipality organs , agencies thereof , as well as independent bodies and offices also listed in or established under chapter 11 of the Constitutional Framework,
(b) "document" shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility;
(c) "third party" shall mean any natural or legal person, or any entity outside the institution concerned.
Section 3
Beneficiaries and scope
3.1.Any habitual resident of Kosovo or any person who meets eligibility requirements for
registration as a habitual resident of Kosovo, and any natural or legal person residing
or having its registered office in Kosovo, has a right of access to documents of the
institutions, subject to the principles, conditions and limits defined in this Law.
3.2.The institutions may, subject to the same principles, conditions and limits, grant
access to documents to any natural or legal person not residing or not having its
registered office in Kosovo.
3.3.This Law shall apply to all documents held by an institution, drawn up or received by
it and in its possession, in all areas of activity of the institutions.
3.4.Without prejudice to sections 4 and 8, documents shall be made accessible to the
public either following a written application or directly in electronic form or through
a register. In particular, documents drawn up or received in the course of a legislative
procedure shall be made directly accessible in accordance with section 11.
3.5.Sensitive documents as defined in section 8.1 shall be subject to special treatment in
accordance with that section.
3.6.This Law shall be without prejudice to rights of public access to documents held by
the institutions which might follow from instruments of international law or acts of
the institutions implementing them.
Section 4
Exceptions
4.1.The institutions shall refuse access to a document where disclosure would
undermine the protection of
(a) the public interest as regards:
(i) public security,
(ii) defense and military matters,
(iii) international relations,
(iv) the financial, monetary or economic policy of the PISG;
(b) the privacy and the integrity of the individual, in particular in accordance with the applicable legislation regarding the protection of personal data.
4.2.The institutions shall refuse access to a document where disclosure would undermine
the protection of:
(a) commercial interests of a natural or legal person, including intellectual property,
(b) court proceedings and legal advice,
(c) the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
4.3.Government shall draft the list of the documents, which shall be treated as sensitive
documents to the actions foreseen under section 4 and 8, in order to protect the public
interests.
4.4.Access to a document, drawn up by an institution for internal use or received by an
institution, which relates to a matter where the decision has not been taken by the
institution, shall be refused if disclosure of the document would seriously undermine
the institution's decision-making process, unless there is an overriding public interest
in disclosure.
4.5.Access to a document containing opinions for internal use as part of deliberations and
preliminary consultations within the institution concerned shall be refused even after
the decision has been taken if disclosure of the document would seriously undermine
the institution's decision-making process, unless there is an overriding public interest
in disclosure.
4.6.As regards third-party documents, the institution shall consult the third party with a
view to assessing whether an exception in section 4.1 or 4.2 is applicable, unless it is
clear that the document shall or shall not be disclosed.
4.7.If only parts of the requested document are covered by any of the exceptions, the
remaining parts of the document shall be released.
4.8.The exceptions as laid down in sections 4.1 to 4.4 shall only apply for the period
during which protection is justified on the basis of the content of the document. The
exceptions may apply for a period of 30 years from the creation of the document.
4.9. In determining whether there is an overriding public interest in disclosure the
institutions shall have due regard to considerations such as any failure to comply
with a legal obligation, the existence of any offence, miscarriage of justice, abuse of
authority or neglect in the performance of an official duty, unauthorized use of public
funds, or danger to the health or safety of an individual or the general public.
II. PROCESSING OF APPLICATIONS
Section 5
Applications
5.1.Applications for access to a document shall be made in any written form, including
electronic form, and in a sufficiently precise manner to enable the institution to
identify the document. The applicant is not obliged to state reasons for the
application.
5.2.If an application is not sufficiently precise, the institution shall ask the applicant to
clarify the application and shall assist the applicant in doing so, for example, by
providing information on the use of the public registers of documents.
5.3.In the event of an application relating to a very long document or to a very large
number of documents, the institution concerned may confer with the applicant
informally, with a view to finding a fair solution.
5.4.The institutions shall provide information and assistance to persons on how and
where applications for access to documents can be made.
Section 6
Processing of initial applications
6.1.An application for access to a document shall be handled promptly. An
acknowledgement of receipt shall be sent to the applicant. Within 15 working days
from registration of the application, the institution shall either grant access to the
document requested and provide access in accordance with section 9 within that
period or, in a written reply, state the reasons for the total or partial refusal and inform
the applicant of his or her right to make a confirmatory application in accordance with
section 6.2.
6.2.In the event of a total or partial refusal, the applicant may, within 15 working days of
receiving the institution's reply, make a confirmatory application asking the
institution to reconsider its position.
6.3.In exceptional cases, where an application relates to a very long document or to a
very large number of documents, the time-limit provided for in section 6.1 may be
extended by 15 working days, provided that the applicant is notified in advance and
that detailed reasons are given.
6.4.Failure by the institution to reply within the prescribed time-limit shall entitle the
applicant to make a confirmatory application.
Section 7
Processing of confirmatory applications
7.1.A confirmatory application shall be handled promptly. Within 15 working days from
registration of such an application, the institution shall either grant access to the
document requested and provide access in accordance with section 9 within that
period or, in a written reply, state the reasons for the total or partial refusal. In the
event of a total or partial refusal, the institution shall inform the applicant of the
remedies open to him or her, namely instituting court proceedings against the
institution pursuant to the provisions of the relevant applicable law and/or filing a
complaint with the Ombudsperson pursuant to Chapter 10 of the Constitutional
Framework and UNMIK Regulation No. 2000/38.
7.2.In exceptional cases, where an application relates to a very long document or to a
very large number of documents, the time limit provided for in section 7.1 may be
extended by 15 working days, provided that the applicant is notified in advance and
that detailed reasons are given.
7.3.Failure by the institution to reply within the prescribed time limit shall be considered
as a negative reply and entitle the applicant to institute court proceedings against the
institution pursuant to the provisions of the relevant applicable law and/or file a
complaint with the Ombudsperson following the provisions of Chapter 10 of the
Constitutional Framework and UNMIK Regulation No. 2000/38.
Section 8
Treatment of sensitive documents
8.1.Sensitive documents are documents originating from the institutions classified in
accordance with the rules of the institution concerned, which protect essential
interests of the PISG.
8.2.Applications for access to sensitive documents under the procedures laid down in
sections 6 and 7 shall be handled only by those persons who have a right to acquaint
themselves with those documents. These persons shall also assess which references to
sensitive documents could be made in the public register.
8.3.Sensitive documents shall be recorded in the register or released only with the
consent of the originator.
8.4.An institution which decides to refuse access to a sensitive document shall give the
reasons for its decision in a manner which does not harm the interests protected in
section 4.
8.5.The rules of the institutions concerning sensitive documents shall be made public.
Section 9
Access following an application
9.1.The applicant shall have access to documents either by consulting them on the spot or
by receiving a copy, including, where available, an electronic copy, according to the
applicant's preference. The cost of producing and sending copies may be charged to
the applicant. This charge shall not exceed the real cost of producing and sending the
copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in
electronic form or through the register shall be free of charge.
9.2.If a document has already been released by the institution concerned and is easily
accessible to the applicant, the institution may fulfill its obligation of granting access
to documents by informing the applicant how to obtain the requested document.
9.3.Documents shall be supplied in an existing version and format (including
electronically or in an alternative format such as Braille, large print or tape) with full
regard to the applicant's preference.
III. REGISTERS
Section 10
Registers
10.1.Each institution shall provide public access to a register of documents. Access to the
register should be provided, where possible, in electronic form. References to
documents shall be recorded in the register without delay.
10.2.For each document the register shall contain a reference number, the subject matter
and a short description of the content of the document and the date on which it was
received or drawn up and recorded in the register. References shall be made in a
manner which does not undermine protection of the interests in section 4.
10.3.The institutions shall immediately take the measures necessary to establish a register
which shall be operational by 1 January 2004.
Section 11
Direct access in electronic form or through a register
11.1.The institutions shall as far as possible make documents directly accessible to the
public in electronic form or through a register in accordance with the rules of the
institution concerned.
11.2.In particular, legislative documents, including documents drawn up or received in
the course of procedures for the adoption of acts which are legally binding shall,
subject to sections 4 and 8, be made directly accessible.
11.3.Where possible, other documents, notably documents relating to the development of
policy or strategy, should be made directly accessible.
11.4.Where direct access is not given through the register, the register shall as far as
possible indicate where the document is located.
IV. IMPLEMENTATION
Section 12
Languages
Members of communities, as defined in the Constitutional Framework, may exercise their rights as set out in this law in their respective language.
Section 13
Information
Each institution shall take the requisite measures to inform the public of
(a) the rights they enjoy under this Law; and
(b) a contact person at the institution to whom questions and concerns can be
directed.
Section 14
Administrative practice in the institutions
14.1.The institutions shall develop good administrative practices in order to facilitate the
exercise of the right of access guaranteed by this Law.
14.2.The institutions shall establish an inter-institutional committee to examine best
practices, to address possible conflicts and to discuss future developments on public
access to documents.
14.3.The Government shall have the authority to issue secondary legislation with regard
to the implementation of the present Law and in particular with regard to the
establishment of rules and procedures with respect to the classification of sensitive
documents.
Section 15
Reproduction of documents
This Law shall be without prejudice to any existing rules on copyright which may limit a third party's right to reproduce or exploit released documents.
Section 16
Reports
16.1.Each institution shall publish annually a report for the preceding year including the
number of cases in which the institution refused to grant access to documents, the
reasons for such refusals and the number of sensitive documents not recorded in the
register.
16.2.At the latest by 31 July 2004, and every year thereafter, the Office of the Prime
Minister shall publish a report, and file a copy with the Assembly of Kosovo, on the
implementation of this Law and shall make recommendations, including, if
appropriate, proposals for the revision of this Law and an action programmed of
measures to be taken by the institutions.
V. TRANSITIONAL PROVISIONS
Section 17
Transitional Provisions regarding access to sensitive documents
17.1.The Government shall adopt adequate rules and procedures regarding the
classification of sensitive documents pursuant to section 8 , sixty days after the
Law come to effect.
17.2.Failure to provide rules and procedures in compliance with section 17.1 shall not
permit the institutions to deny access to documents pursuant to section 8.
Section 18
Transitional Provisions regarding the protection of personal data
Pending the entry into force of legislation related to the protection of personal data, the institutions may only release such data upon prior and explicit consent of the person affected.
VI. FINAL PROVISION
Section 19
Entry into force
This Law shall enter into force on the day of its promulgation by the Special Representative of the Secretary-General in Kosovo.
06.11.2003
UNMIK/REG/2003/32
