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Article No. 8
Gatekeeping the
gatekeepers: International community and freedom of information in Kosovo
Lindita Camaj
Indiana University,
Bloomington USA
Keywords:
Media
access to information, Freedom of Information legislation, Kosovo media,
Media and Governmental Transparency, International Organizations
Abstract
The
aim of this study is to analyze the impact of the international factors on
the implementation of the Freedom of Information (FOI) legislation in
Kosovo and to explore how this legislation affects media access to
information in this transitional society. The case of Kosovo suggests that
the influence of the international community is greater during the process
of adopting FOI laws in transitional societies, but less effective on
behavioral changes that accommodate the implementation of these laws, thus
questioning the role of international factors on democratic consolidation.
Three primary explanations for this inefficacy are found: the imitative
nature of the FOI laws leads to defective legislation; the lack of a
democratic culture within local institutions; and the double standards
imposed by the Western organizations when it comes to transparency and
access to information. Implications for media freedoms and professionalism
are discussed.
Introduction
In
what has been described as the “global trend” of openness (Byrne, 2003),
the last decade has seen the adoption of more than half of the Freedom of
Information (FOI) laws that exist in the world (Banisar, 2006). By 2006
more than 80 countries have adopted some constitutional provisions giving
citizens the right to information access, nearly 70 countries around the world
have now adopted FOI acts, and another fifty have pending efforts to do so
(Banisar, 2006). Moreover, FOI has become more widely recognized in
international legislation since it has been
enshrined in many international documents, including the European Union Charter of Fundamental Rights (European
Union, 2000).
Caught
in the process of globalization and international integration, the majority
of the post-communist countries of Eastern and Central Europe (ECE) started
their FOI debates in the late 1999 and adopted FOI legislation very early
in the process of democratization. Two main
reasons explain why ECE countries were so quick to adopt FOI laws. First,
FOI laws served as tools for the new regimes to deal with the past and
exact revenge against their communist predecessors (Blanton, 2002). Second,
the eagerness of former communist countries to integrate in the EU, NATO
and other international organizations led the new regimes to adopt
legislations in accordance with international standards (Blanton, 2002; Byrne,
2003; Grigorescu, 2003).
The
aim of this study is to analyze how FOI legislations work in practice in
transitional societies and investigate their implication for media
freedoms. More specifically, this paper investigates the role of the international
factors in the adoption and implementation of the FOI legislation in
Kosovo, a newly independent country in South-Eastern Europe, and explores
how this legislation affects media access to information in this country.
This study approaches freedom of information from the democratization
perspective rather than from a purely legal angle. In this context, freedom
of information is conceptualized as an essential aspect of democracy, a
tool that enables the public to make informed decisions about government
and facilitates journalists’ (the proxy of the people) access to government
information. The conceptualization of the FOI is explored particularly
within the democratization theory that explores the role of the
international factors on democratic transition and democratic consolidation
to provide a different way to explore what happens when FOI laws are
directly or indirectly imposed on countries undergoing political
transition.
This
study complements the literature on freedom to information in developing
countries, by providing in-depth empirical evidence on how FOI laws are
implemented on the ground. Despite the
global trend towards openness, Banisar (2006) claims that the adoption has
been “in name but not in spirit.” As a consequence of the strong culture of
secrecy, which is “not unique to any region or legal system,” the demand
for access to information is low while the laws in many countries lay
dormant (Banisar, 2006, p.26). The role of the international factors on the
implementation of FOI legislation in transitional societies is neglected in
the literature, even though studies have identified international
organizations as factors that had a positive role in the process of
adoption of the FOI laws in ECE countries (Grigorescu, 2003).
Particularly,
we lack empirical evidence regarding this legislation’s effects on media
freedoms and access to information in transitional societies. Scholars of
post-communist media change claim that even though in most countries of ECE
the legal and institutional framework of media freedom exists on paper, the
consolidation phase of the media freedom remains a “distant promise,
creating uncertainty in the role, usage of, manipulability, and
effectiveness of media in these changing societies” (Gross, 2004, p.126;
see also Jakubowicz & Sukosd, 2008).
The
international factor in the democratization processes
The
democratization literature has recognized international influences as a
crucial factor in the third wave of democratization that began in the 1970s
in South Europe and lately spread to Latin America and Eastern Europe,
overpowering dozens of communist and authoritarian regimes in these
regions. The role of the international factor in the democratization
processes is seen as a diffusion process that depends on linkages, or the
density of ties across borders between democratic and democratizing
countries, and as a ‘promotion’ process that highlights leverages, or the
degree to which authoritative governments are vulnerable to external
pressure (Levitsky & Way, 2006). Both approaches to international
influences raise the cost of autocratic abuses. However, while the linkage
dimension concentrates mostly on spatial heterogeneity between countries
with similar circumstances of democratization, the leverage approach is
rooted in the pressure exercised by the international factor on
authoritarian regimes (Lewitsky & Way, 2006).
Lewitsky
and Way (2006) claim that the most important dimension of the Western
linkages is the geographic proximity to the Western democratic countries,
and within this category the linkages that are a product of colonial
heritage, military occupation, or long-standing geopolitical alliances
(p.384). Linkages generate antiauthoritarian pressure by heightening the
international salience of autocratic abuse and increasing the chance that
the Western governments will take action against those abuses. The leverage
dimension, on the other hand, emphasizes the role of international factors
in promoting democracy by exerting direct pressure on authoritarian
countries. This process is implemented through positive conditionality,
such as membership in international organizations, punitive sanctions that
deal with economic pressure, diplomatic persuasion, military force, and
elite acquiescence to liberalization (Lewitsky & Way, 2006; see also
Pevehouse, 2002).
The
theory of the international factors’ role on democratization provides a
fruitful theoretical framework to explain the adoption of the FOI
legislation in transitional societies of Eastern Europe. It suggests that
the spread of freedom of information laws was the consequence of appearance
and promotion of the norm of transparency in the Western world; which was
transmitted to their neighboring countries through the process of linkage –
the flow of the norm of transparency among states that are geographically
and culturally close – and leverage – conditionality of membership and aid
on transparency norm.
Mimetic versus Atavistic media
orientations in Eastern Europe
After
the fall of communism in Eastern Europe, a mixture of two media policy
orientations emerged that shaped the views of new media order: mimetic and
atavistic (Jakubowicz & Sukosd, 2008; Jakubowicz, 2008), or imitating
external environment and imitating the past (Splichal, 2001).The “mimetic”
orientation in media policy is defined as “transplanting — in some aspects
importing without any change — Western European media institutions and
policy models” (Jakubowicz & Sukosd, 2008, p.19). The implementation of
this media policy in ECE countries was done in order to approximate their
media systems to the “West.”
Scholars
argue that the unilateral imitation of the Western media systems in ECE
countries was intensified by the efforts of the post-communist courtiers to
join international organizations in the process of international
integration (Splichal, 2001; Jakubowicz & Sukosd, 2008, Jakubowicz,
2007). Thus, external factors played a major role in post-communist countries’
adoption of the Western media policies through deliberate policy
imposition. The prospect of joining the EU and other international
institutions meant that aspiring accession countries had to harmonize their
legislation in line with European standards and undergo detailed processes
of screening to make sure that the legal framework and institutions have
been created in line with requirements of EU and other organizations
(Jakubowicz, 2007).
This
same explanation applies to the adoption of the FOI legislation in ECE.
This is one of the regions where the movement for freedom of information
has been most effective, producing some kind of FOI legislation in almost
every county that emerged from the Eastern bloc. The FOI laws in most of
the countries in this region share certain common features given that they
are all “based on the examples provided by the United States, Canada, and
Australia” (Byrne, 2003, p.56). Grigorescu (2003) explains that role of the
international institutions during the process of adopting FOI laws in ECE
countries was an indirect one. Given that some of the traditional
democracies have not themselves adopted transparency practices, initially
international organizations laid weak norms of transparency, which until
recently were only applied in specific areas such as the environment
(Grigorescu, 2003). International organizations affected transparency in
this region through three channels: conditionality, spillover, and by
serving as alternative sources of information, says Grigorescu.
Even
though they mimicked the Western systems on paper, in other areas of media
policy political elites in ECE managed to retain some atavistic
orientation, unwilling “to give up all the control of, or the ability to
influence the media” (Jakubowicz, 2008, p.112). Even thought the new
media laws in ECE countries resemble the Western ones, they are still
interpreted and applied in a manner different from those in Western Europe
(Jakubowicz, 2007). In general, the pressure from international
factor to “Europeanize” the interpretation and implementation of these laws
has fallen into deaf ears (Gross, 2004, p.119). When it comes to the
implementation of the FOI laws in this region, some scholars imply that
these laws might lay dormant (Banisar, 2006) while some enthusiasts claim
that “despite many problems, the trend toward openness in Eastern and
Central Europe over the past decade has been more productive than
developments in Western Europe and the United States” (Byrne, 2003, p. 56).
However, there is hardly any in-depth empirical analysis to back up any of
these claims, especially in the Balkan region.
Most
scholars explain the failure of the new media laws to induce behavioral
change of the political elites in Eastern Europe with the lack of democratic
political culture (Jakubowicz, 2007, 2008; Bajomi-Lazar, 2008; Gross,
2004). The reinterpretation of media roles in society according to the
“Western standards” is not possible until the ECE media fully
institutionalize the cultural changes that encompass acceptance of rule of
law and restraints on the exercise of power on the media (Gross, 2004).
Nevertheless, the literature fails to explain the complex interaction
between legislation design and political cultural and their effects on
media freedom (Bajomi-Lazar 2008).
Another
important aspect of the “imposed” change in media policy might have to do
with the unrealistic expectations of the international factor. A multiple
range of changes in the media system was expected from the post-communist
ECE countries in a short period of time, while these media changes in the
Western countries occurred over many decades of social and technological
evolution. Jakubowicz and Sukosd (2008) describe this process as
follows. “The international community and organizations, as well as
all the other Western players involved in the process, presented to
post-communist societies an unrealistic, idealized and wart-free image of
“free and democratic” media and journalism to emulate, while the reality in
their own countries may have been different” (p.19).
This
paper investigates the effects of international factors on Kosovar
governmental transparency through two channels: the promotion of the FOI
legislation adoption and implementation, and through transparency norms
practiced by the international organizations operating in
Kosovo.
Method
The
first part of the study uses primary and secondary sources to analyze the
content of the FOI legislation in Kosovo. It relies on various documents
and open ended face-to-face and electronic interviews with NGO
representatives to understand the process that led to the adoption of the
FOI legislation in Kosovo and the efforts made to facilitate its
implementation.
This
study was also interested in the experience of Kosovar journalists
accessing information to explore the effects of this legislation on media
freedoms. Thus, the in-depth interviewing technique was employed, which is
an adequate method to “understand themes of the lived everyday world from
the subject’s own perspective” (Kvale, 1996, p.27). This study used a
purposive sample. Since I was interested in variations in access to
information in Kosovo during the post-conflict period to test the effect of
the FOI law on information access, the first criterion of subject selection
was the journalism experience of the subjects. Every interviewed
participant has been working as a journalist in Kosovo at least since 1999,
with their media experience ranging from ten to fifteen years. The second
criterion of the sample selection was media independence. This study
included journalists that have been working for media that retained some
degree of freedom, in order to obtain an assessment of governmental
information access as objectively as possible. In making these decisions
the author was guided by different national and international reports on
media environment in Kosovo as well as her own personal experience working
with media in this country.
Nineteen
news editors and journalists from eight Kosovo media outlets were
interviewed for the purpose of this study (13 from newspapers, 5 from
television, 1 from a news agency), eight of whom were females and eleven
were males. The author conducted structured face-to-face interviews in the native
language of the subjects. Each interview, which lasted from 45 minutes to
an hour, was tape recorded with the permission of the participants. The
recorded material was transcribed and translated by the author.
These
interviews were focused around three main categories of questions. First,
journalists were asked about their perceptions regarding governmental
transparency and their general experiences accessing information within
political institutions in Kosovo. Some questions included in this section were:
“How hard is to access information in Kosovo? How comfortable do you feel
contacting governmental officials to ask for information? How likely are
you to obtain the information you need? What are some of typical ways in
which governmental officials/institutions deal with journalists’ requests
for information?” The second category of questions explored variations in
information access between different levels of local government (Do you see
any difference in access to information in the local versus central
government institutions? Which branches of government do you feel are more
transparent than others?); between local and international institutions
(Have you noticed any difference between local and international
institutions, when it comes to access to information? What is you
experience in terms of the international institutions’ treatment of your
request for information ?), and variations in information access across
time (Do you think that the governmental officials’ attitude towards
journalists’ request for information has changed at all while you have been
working as a journalist? Describe me an example how this attitude
has/hasn’t changed?). Finally, journalists were probed about their
awareness of the FOI legislation in Kosovo (Did you even hear about Freedom
of Information law? Can you describe what this law is about? Do you know
when was this law approved?) and their experience using this legislation to
access information (Have you ever relied on the FOI legislation to request
official information? Do governmental officials ever refer to this law when
dealing with information request from journalists? Do you think there is
more freedom of information access than it was three years ago before the
FOI law was adopted?).
Freedom
of Information legislation in Kosovo
Promoting
FOI adoption
Kosovo
represents a compelling case where linkage and leverage influences of the
international community have been felt more than anyplace else in the
post-communist transitional societies. During the last decade, Kosovo has
been under the international protectorate of the United Nations, while at
the same time has pursued two parallel processes: gaining full independence
as a sovereign state and preparing for international integration.
In June
1999, following a NATO campaign against Serb forces, Kosovo seceded from
Serbia and Montenegro de facto (if not de jure) and was taken under the
governance of the United Nations Mission in Kosovo (UNMIK) in accordance
with the UN Resolution 1244. The international community set several democratic
standards that Kosovo had to fulfill before the process of the final
legal status of the country could be initiated. As defined in the
“Standards for Kosovo” UNMIK document, the process of
standards implementation was also envisioned as a reinforcing process of
Kosovo’s parallel European Union Stabilization and Association Process
Tracking Mechanism (UNMIK, 2004). Freedom of information was one of the
hallmarks of democratic standards imposed by the international community on
Kosovo Institutions. The most prioritized benchmark of this document,
“Functioning democratic institutions,” emphasizes that “permanent
structures that would provide civil society organizations with more access
to public policy making should be established and respected” (UNMIK, 2004,
p.7).
The
FOI discourse in Kosovo, however, started much earlier. The Assembly of
Kosovo approved the Law on Access to Official Documents (LAOD), on
October 16, 2003. The law was officially sponsored by the Office of the
Kosovo Prime Minister, but besides the working group established by the
Prime minister, in the drafting of the LAOD participated another working
group composed of NGOs (ATRC, 2004). The U.S. Agency for International
Development (USAID) was one of the major donors that supported the activity
of the NGOs in this process (USAID, 2004) which was mainly composed by the
National Democratic Institute (NDI), a U.S. NGO working to strengthen and
expand democracy worldwide, and Advocacy Training
and Resource Center (ATRC), a local NGO (ATRC, 2004). The adoption
of this legislation followed an intense lobbying by the international
community in Kosovo. In late 2002 lobbying activities were organized by the International Research and Exchange Board
(IREX), a U.S. based non-profit organization, and
the Organization for Security and Cooperation in Europe (OSCE) who
organized active public discussions on the matter (Bertram et al., 2003,
p.29).
The
product of these engagements was a FOI law that was deemed in accordance
with international standards. The law ensures the right of all
"habitual residents" of Kosovo to access documents held by any
Provisional Institution of Self-Government and bodies set up under the
Constitutional framework. According to the law, the request can be made in
any written form, and the institutions must respond in fifteen working
days. The law précised the areas of access exemptions that would undermine
the public interest, while abides the government to draft a list of
documents to be exempted. Appeals of denial can be filed to court or to the
Ombudsperson Institution; no fines are established by the law for people
who fail to implement this law (Law on Access to Official Documents, NO.
2003/12).
However,
due to the specific environment in which the FOI is implemented in Kosovo,
the law had several drawbacks. It was noted that the section of the law
that allows institutions to draw up internal rules regarding the
classification of the “sensitive documents” could undermine the access
regime (Article 19, 2003). Further, some concerns were expressed regarding
the supervision and appeals mechanisms given the lack of an independent
external body that would supervise the implementation of the law (Article
19, 2003).
Initially,
the implementation of the LAOD in Kosovo was obstructed by the lack of
accompanying legislation that would facilitate its implementation. The
government dragged its feet on the drafting and adoption of the
Administrative Instruction (AI) which would set out the framework for the
classification of official documents within institutions. This document was
adopted on April 15, 2006, three years after the actual LAOD came into
power. Despite the long public debate on this legislation, the remarks on
the classification of the official documents were not addressed properly
(IREX/USAID 2006), thus leaving many loopholes within the legislation that
would undermine its implementation.
Promoting
FOI implementation
The
international community in Kosovo was also very active in promoting the
LAOD and providing training for its implementation. International
organizations cooperated to form the AVOKO, a
coalition of 27 local NGOs that would advocate the implementation of FOI
legislation at the local and national levels (USAID, 2004, p.10). However,
most of the activities in relation to the FOI in Kosovo were directed by
the international NGOs. At the beginning of 2004, NDI organized a training
session with fifty members of the Parliament and ministry officials from
central government (Cadle, 2004), while during 2006, OSCE assisted the
Kosovo Municipality Association and the Ministry of Public Administration
in raising awareness of FOI legislation and transparency at the
municipality levels through training, public debates, and the delivery of promotional
materials (OSCE, 2007). In co-operation with the OSCE Assembly
Support Initiative, NDI published a manual for the implementation of the
LAOD, which contains an explanation of the text of each section of the law (OSCE, 2005, pp.17-18).
Additional trainings
were organized with the media community. IREX organized workshops with
media representatives to foster
understanding of this legislation among media professionals (IREX, 2004).
In another roundtable meeting, ATRC and IREX gathered about 30 governmental,
NGO, and media representatives to discuss implementation of FOI legislation
in Kosovo (ATRC, 2006).
Journalists’
experience accessing official information
Gate-keeping
the information within local institutions
Despite
all these efforts to bring transparency into Kosovo institutions, the
reports from the terrain depict a grey picture when it comes to access to
information, particularly by media professionals. The non-transparency of
government institutions was emphasized as one of the major obstructions
that Kosovo journalists faced in their daily work during the last decade of
political transition in the country. Information access within governmental
structures was reserved mostly for journalists working for the “government
friendly” media, while investigative reporters have been boycotted through
“silence.” Salie Gajtani, a senior journalist covering economy at the daily
Koha Ditore, has been investigating corruption affairs within Kosovo
administration for years. Gajtani characterized conditions this way.
“Kosovo institutions have a tendency to close the door to journalists who
do investigative reporting, and expect you to report only the information
that is given during their press conference when they promote
themselves…When you knock on their (institution’s) door without being
invited, they will always look at you with a suspicious eye.”
Access
to information within Kosovo government was described as very centralized,
making it hard for journalists to operate in the political environment in
which Prime Minister, Hashim Thaci, keeps tight control over what can be
released to the press. During the period this research was being conducted,
the Kosovo government did not have an official spokesperson. Prime-minister
Thaci has delegated his deputy, Hajredin Kuci, to act as a spokesperson for
the whole Kosovo government, while the Ministries and other government
institutions have been instructed not to interact with the journalists.
Seven months after the Thaci government was consolidated, Mr. Kuci was
still acting as the government voice, operating on an one hour per day
schedule to deal with journalists’ inquiries and request for information.
Though
over the past eight years Kosovo has been administered by three different
coalition governments led by four different prime ministers representing
three different political parties, access to official information has
always been a challenge for journalists. In fact, a survey on the
implementation of the LAOD in Kosovo has suggested a deterioration of the
access regime, as journalists’ access to official document was down from
23.5 percent in 2007 to 14.75 percent in 2008 (USAID, 2008). Kosovo
journalists remarked that to a great degree access to information depended
on the ability of journalists to rely on informal sources within
institutions. “The only way to obtain information for journalists is to
smuggle the documents through informal sources,” claimed Sami Kastrati,
political affairs reporter with the Koha Ditore daily.
The
adoption of the LAOD in Kosovo has not significantly changed journalists’
access to information. Even though all of the 19 interviewed journalists
for this study were fully aware of the existence of the LAOD and its
procedures, only 12 of them reported to have relied on this legislation to
access to information emphasizing that their experience was not
satisfactory. These data are consistent with the results of a survey on
journalists’ access to information conducted by the USAID in April 2008.
Twenty three journalists from ten media organizations in Kosovo
participated in the USAID survey on the implementation of the LAOD,
submitting about 61 document requests, related to the story ideas they were
pursuing, to 27 governmental institutions. More than 68% of the
journalists’ requests did not receive a reply, about 16% requests were
replied inappropriately, while only about 14% of the journalists’ were
granted access to the requested information (USAID, 2008).
As
Syzana Bytyci, editor of Koha Ditore Daily, explained two main
reasons why this law is of little use to journalists in Kosovo include the
lengthy period the officials have to respond to information request and the
lack of a systematic classification of official documents within
institutions. According to Kosovo journalists, these two elements are being
misused by the public officials when dealing with journalists’ information
request, especially if the requested information deals with financials
issues such as governmental spending, political and administrative
appointments, and procedures of policy implementation.
For
example, referring to the LAOD, Ganimete Shaqiri, reporter at the private
television TV 21, submitted a formal request to the Ministry of Public
Services to access personal documents (travel and ID document). She was
investigating a story on the appearance of false travel documents in some
parts of Kosovo. “I was offered the requested document,” she said, “
but I had to wait for it 3 weeks. I am aware that the law says the requests
should be answered within 15 days. However, at the Ministry I was told they
had some technical problems, the person responsible was on vacation and I
had to wait until she came back or something.”
Monitoring
reports on LAOD implementation in Kosovo have pointed out that the
deadlines envisioned by this law have not been met as most of the Kosovo
governmental institutions did not establish document registers, did not
adopt rules and procedures regarding the classification of sensitive
documents, and have failed to publish reports on the LAOD implementation (OSCE, 2005, pp.17-18). Moreover, among the major
obstacles to implementing the FOI legislation in Kosovo was identified a
notable lack of resources and proper training of the institutional
officials to deal with LAOD requests (OSCE, 2007).
While
investigating a story on governmental spending on advertisement and PR
activities, Serbeze Haxhia, a journalist with the daily newspaper ‘Lajm,’,
e-mailed the public official responsible to deal with information requests
asking for the exact amount of money the government has spent on ads during
the last year. She was told that the e-mail was not an acceptable form of
request in accordance with the LAOD law, and she had to submit the request
in a printed form. Her frustration is evident in her reaction. “I ask
them where to obtain those forms, and she responds ’I don’t know that, but
you should go and ask people at “COHU” because they have brought some forms
recently.’ Imagine this response. First of all she does not accept my
request because I am not using the proper form, then she tells me to go ask
for forms at a nongovernmental organization that has nothing to do with it.
It’s nonsensical.”
Among
the major obstacles in the implantation of the FOI legislation is the lack
of political will within institutions, though. The Youth Initiative for
Human Rights (YIHR), a local NGO that monitored LAOD implementation in
Kosovo during 2006, concluded that “the level of FOI implementation in
Kosovo is extremely low and nobody is held responsible for this issue”
(YIHR, 2007, p.6), after their testing results showed that only 15.85
percent of all Kosovo institutions abide by this law.
Journalists
interviewed for this study emphasized that the cases when the officials
seem to be more likely to deal with journalists’ request for documents is
when the information is already out. Teuta Hykolli, reporter at the news
agency Kosovalive, has relied on the LAOD law to request information at the
Ministry of Health and managed to obtain the documents only after she
confronted the officials with the documents she managed to get from her
unofficial sources. “Usually you need to have somebody you know within the
institution in order to obtain anything; then you can confront the institution
leadership asking for an official confirmation of what you already know,”
Teuta said.
The
only observed effect of the LAOD on the media community in Kosovo was the
change in the relationship between media professionals and governmental
officials, which has certainly not been for the better. Journalists noted
that very often governmental institutions rely on this law to
institutionalize bureaucratic procedures of obtaining information. As
Ganimete Shaqiri, from private television TV21 remarked, “If you ask for
sensitive information, they point you to the legal way. They throw the LAOD
in front of you.” This is best exemplified by the experience Sami Kastrati,
a political reporter at Koha Ditore, had at the time of the interview while
investigating some alleged procedural violation during the purchase of
protocol vehicles by the Kosovo government. When he went to the government
building to get the contracts of these transactions, which were in amount
of 203 000 EURO, he was told he needed to submit a formal request even
though just half an hour earlier the official responsible had told him over
the phone that he just had to show up at the office to obtain the
contracts. “I write the formal request and submit it to the
appropriate office,” Sami said. “The person who works in the
administration there tells me that I shouldn’t have written my request in a
word document because they don’t accept them written in this form. He says
I should have used another program, I am not sure what program he referred
to because he did not specify the proper format. Later, I go to the
Ministry Secretariat and discover that an order was issued within the
institution not to release those documents. Everything ended here.”
As
this case point out, due to the lack of proper classification of the
official documents within governmental institutions, the LAOD is very
commonly used by officials as a pretext to deny information, categorizing
in the “sensitive” category information that should clearly be open to the
public. For example, a public official referred to the LAOD to deny Arbana
Xharra, an economist journalist at Koha Ditore, the request for information
about public officials who had not declared their wealth to the
anti-corruption agency. “I had to go and take pictures of the Minister’s
houses myself. For example, I went to the village of origin of the Energy
Minister, Ethem Ceku, to take a picture of his newly built house. I wanted
to show people what kind of wealth they have accumulated while being in
public office,” said Arbana.
In a
similar situation, Fatmire Terdevci, a journalist with the Balkan
Investigative Reporting Network, was denied the information about the
amount of money that public officials spend on official travels. “I made an
official written request based on the LAOD…but, I was not provided with the
information. I was told, ‘This information is not for the public.’ “.
Journalists
claim that the only way the FOI legislation would have a chance to function
in Kosovo is if rules were established that would specify clearly the
document classification in a consistent way across all institutions.
Otherwise, “this legal anarchy”, says Shkelzen Coca, news editor at the
private national television KTV, “will continue to create a space for all
institutional officials to deny official documents based on their secrecy
or semi-secrecy (status). In this way, institutions close themselves in
front of the media and public (demand).”
Access
to information within international institutions
Access
to information held by international bodies that have administered Kosovo
during the last decade was limited in general (Banisar, 2006, p.15).
Journalists interviewed for this study emphasized many difficulties they
have had accessing information within the international administration in
Kosovo. When it comes to the lack of transparency, as Ismail Gashi,
reporter at national daily Kosova Sot, claims laughingly, “they
(international organizations) seem to have been infected by local officials
in Kosovo.” Ilir Krasniqi, another journalist from Kosova Sot, said,
“Albanian journalists have never had free access to information, especially
in the second pillar of UNMIK that deals with administration and rule of
law. These are the places where the hottest issues have been handled, including
corruption, crime, and major violations (of law)”
For
several months, Krasniqi has tried to obtain from the UNMIK police the list
of the most persecuted people in Kosovo by Interpol. All he was able to
obtain was a number, and the person giving it to him asked to be kept
anonymous. Similarly, he was denied the information on the number of Kosovo
citizens’ complaints about the international administration. “This sounds
like banal information, but I did not obtain it,” he claimed.
Kosovo
reporters also point out that international administration in Kosovo had a
different treatment for journalists working for local versus international
media in Kosovo. Fatmire Terdevci had the chance to work for both. “Always
the UNMIK administration has implemented dual standards of information
access,” she said. “… BBC, AP and AFP journalists are always treated
better and always have better access to information than the local
journalists.”
However,
one major difference between local and international institutions in terms
of access to information was what journalists refer to as “the
communication culture” with the media. While local administration would not
hesitate to close the door to journalists, international institutions acted
more professionally when dealing with media. UNMIK, OSCE, KFOR and all
other international organizations acting in Kosovo have had
well-established public relations offices. During the time they have
jointly administrated Kosovo, UNMIK, OSCE and KFOR have kept regular daily
press conferences where PR officials would promote the work of these
organizations in Kosovo. Teuta Hykolli, from Kosovalive news agency,
claimed that to some degree accessing some information within UNMIK was
easier because international officials “will answer your calls and will not
let you go without some kind of answer.” As another journalist put it,
“when a journalist need information, he knows where to knock.” However,
when it comes to obtaining information regarding important decision-making
and sensitive issues of law and order, the local journalists did not seem
to be as welcomed. “Journalists usually need to wait for hours
outside in the street just to take a statement from a UNMIK official about
decision taken during those meetings (policy decision-making), and most of
the time you will not get it...when it comes to obtaining important
information, things don’t change much,” said Teuta Hykolli.
International
administration, especially UNMIK, was described by journalists as very
bureaucratic. Even though communication with reporters was
institutionalized through well established PR offices, journalists
complained that it takes time to obtain information that is beyond the
daily routine activities of the administration. Blerim Xhemajli, the editor
of the rule of law page in Koha Ditore, was writing a report on a court
case that was processed by an international prosecutor in Kosovo. He was
asked to submit a FOI request for the information on the case, and waited
two weeks to obtain the answer. “I received a mailed envelope with a letter
in which the answer said ‘We cannot talk about this case.’ She (the
international prosecutor) could have told me this orally, instead of making
me submit a written request and wait for two weeks. I believe this is a
pretext they use to discourage us from pursuing this issue, so in meantime
we give it up and start working on something else,” said Xhemajli.
The
reply rate to the FOI request made by the YIHR to the international
institutions of the reserved powers (UNMIK) in Kosovo was not satisfactory,
as around 60% of the requests were denied (YIHR, 2007). At the time the FOI
legislation in Kosovo was drafted, UNMIK infiltrated into the section of
the law that deals with exceptions regime a paragraph which stipulated that
access to and classification of the documents within the area of
responsibility of the Special Representative of the Secretary-General –
that included security, defense and military matters, external relations,
and monetary policy – shall be regulated by UNMIK (Law on Access to
Official Documents, NO. 2003/12). However, UNMIK failed to design legal
documents on classification procedures that would regulate the access to
the documents held by international administration in Kosovo. In many
cases, UNMIK officials denied access to official documents relying on the
sections of the law that stipulate the limitation of the documents that
compromise the public interest (YIHR, 2007).
Conclusion
In
their model of the role of the international factor in democratization,
Lewitsky and Way (2006) claim that the most successful democratization
processes occur when the leverage and linkage influences from the West are
both high. However, this study challenges some of the theoretical
underpinnings of this theory. When it comes to governmental transparency
and media access to information, this study suggests that the high Western
linkage and leverage influences produce some change in democratic
legislation, but still fail to generate the behavioral change that accommodate
their implementation. Interviews with Kosovo journalists illustrate that
the culture of secrecy within the governmental institutions continues while
the shortcomings within this legislation obstruct the potential for
behavioral change that accommodate transparency and media freedom. These
results particularly question the effect of the international factor in the
democratic consolidation process, or the phase when democratic rules should
be habituated.
Moreover,
this study exposes the importance of tackling this theoretical question
from a micro-level perspective. Most of the previous studies have sketched
the causal mechanisms that make external influences plausible from the
macro-level approach. At best, they convincingly argue in favor of the
importance of the international factor in the initial phases of the
democratization process, but they fail to specify empirically the full
range of possible micro-level processes that tie external influence with democratic
consolidation. In order to validate specific causal links between external
and internal factors of democratization, micro-level studies have an
advantage.
Evidence
provided in this case study suggests three explanation for the inefficiency
of the international community to generate transparency within Kosovo
government: the imitative nature of the FOI legislation which are
transplanted from the West without considering the local environment; the
lack of the democratic culture within local institutions; and the double
standards imposed by the Western organizations when it comes to
transparency and access to information.
The
influences of the international community in Kosovo led to the production
of FOI legislation that has many loopholes when it is implemented in the
environment of Kosovo. The section of the law that allows institutions to
draw up internal rules regarding the classification of the “sensitive
documents” has proved to undermine the full implementation of the law and
the access regime. Moreover, the supervision and appeals mechanisms
specified by this law are not adequate given that it does not establish an
independent external body that would supervise the implementation of the
law, but rather leaves this issue in the hands the Ombudsperson
Institutions - a powerless institution in Kosovo - and in the hands of the
courts which, due to their inefficiency, have years of backlog in
processing cases. In turn, the lack of punitive measures for violations of
the FOI law has led to disillusionment amongst the people whom this law was
designed to serve. In such a state, the FOI law in Kosovo is turning into
just another dormant law in the drawer—or worse, a tool which can be used
creatively by public officials to avoid full transparency of the
institutions.
Splichal
(2001) questions the argument that imitative nature of the changes in the
media sphere in ECE countries stimulates democratic transformation. He
claims that “uncritical imitation of the democratic institutions developed
in older democracies may be a risky business” thus, “a critical view is
needed to prevent the ECE countries from becoming a kind of experimental
zone” (Splichal, 2001, p.22). In the case of the FOI legislation in Kosovo,
this study illustrates the need for a locally generated initiative for
transparency and free information access. The inclusion of the local and
regional experts when drafting the FOI laws in the first place is
indispensable for these laws to be efficient. The experience form the
Western experts represents the initial step in this direction; however,
expertise from regional countries with similar experiences provides a more
realistic context on how these laws might be implemented and interpreted,
thus facilitating the avoidance of the predictable problems.
Moreover,
political culture is a complex phenomenon that is rooted in different
sources (Inglehart, 1997). While the establishment of democratic
institutions provides an initial step towards democratic changes in
transitional societies, there is a need for additional measures that assist
the proper functioning of those institutions. In the case of the FOI
legislation, the provision of punitive measures for noncompliance is a must
in these circumstances. Besides, pressure for governmental transparency that
comes from within might be more efficient given that in these newly
established parliamentary democracies, the power of the voters might have a
higher weight than the power of the international organizations. This
suggests a need for the empowerment of local civil society groups and NGO
that would promote and lobby for governmental transparency and FOI
implementation.
Moreover,
this study identifies another explanation that might account partially for
the lack of political will to implement the FOI legislation. The case of
Kosovo suggests that the international institutions seem to impose double
standards of transparency. While information access was widely propagated
with the local governmental structures, international institutions
governing Kosovo were highly closed, at least for the local media. It can
be argued that after all, UNMIK representatives were accountable mainly to
the Western countries, since their taxpayers’ money financed UNMIK
institutions. However, critics point out that
established democracies did not have FOI legislation until recently while
the culture of secrecy has delayed and impeded the implementation of FOI in
some of these countries (Birkinshaw, 2002; Banisar, 2006). Even
though it passed FOI legislation in 1993, the EU has been known for its
lack of transparency (Moser, 2001) while in some cases it did not hesitate
to challenge legitimate requests for information (Bunyan,
2002). This is one of the reasons why critics claim the EU did not make
access to information a prerequisite norm for prospective members until
2002 (Grigorescu, 2002; Settembri, 2005). The spillover effect of
the international institutions’ lack of transparency in Kosovo cannot be
neglected.
The
failure of FOI legislation to establish transparency and free access to
information has important consequences, not only for media freedoms in
Eastern Europe, but also for the development of professionalism in
journalism practices. As the Kosovo journalists interviewed for this study
emphasize, governmental obstruction of access to information that should be
free for the public leads journalists to overuse their ”informal” and
“anonymous” sources, which might affect media credibility. Further, the
difficulty in accessing information and the risk that this situation
creates leads journalists to give up investigative journalism and produce
instead what has been labeled in Kosovo as “protocol journalism,” reporting
of the information provided by government PR. Finally, the lack of
transparency has implications for media professionals’ ethics, who do not
hesitate to ‘smuggle’ and steel information from governmental bodies. These
areas might offer fertile ground for future research.
As
most empirical research, this study has its own limitations. First, the
results reported here derive entirely from the impressions and experience
of media professionals that represent only one category of citizens for
which FOI legislation is designed. Studies investigating access to
information for other segments of society might end up with different
results. The highly politicization nature of the media institutions in
Kosovo might lead to their different governmental treatments in terms of
information access compared with civil society organizations (and other
citizens) that might not be seen as a political threat. Further, this study
represents only one side of the story as narrated by the media
professionals’ perspective in Kosovo. Similar interviews with governmental
representatives might shed additional light on the reasons behind the
noncompliance with the FOI legislation in this country. Obviously,
comparative research on multiple countries undergoing similar political
transition would empower the results generated here by a single case
study.
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About the Author
Lindita
Camaj is a Ph.D. candidate at Indiana University School of Journalism.
Consistent with her interest in political and international communication,
her dissertation research investigates media effects on the relationship
between trust and citizen political engagement and participation in Kosovo.
Her broad research interests are several. They include the media role
in democratization processes, media effects on political culture, the
interaction between journalism and culture, and media access to
information. She has presented multiple papers at AEJMC, IAMRC and other
conferences. Her work is in press at International Communication Gazette
and Central European Journal of Communication. She can be reached at
lcamaj@indiana.edu
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