FREEDOM OF INFORMATION AND
GOVERNMENT TRANSPARENCY IN
ROMANIA
Ion Gâlea
LEGAL FRAMEWORK IN ROMANIA
Law no. 544/2001 on the free access to
information of public interest;
 Government Decision no. 123/2002 –
Methodological Norms for implementation
 Law no. 52/2003 on transparency in decisionmaking
 Ordinance no. 27/2000 on responding to
petitions
 Law no. 554/2004 on administrative claims

SCOPE OF LAW ON FREE ACCESS
“information of public interest” is defined as
“any piece of information that concerns the
activities or that results from the activities of a
public authority or institution”;
 “public authority or institution” is defined as
“any public authority or institution that uses or
administrates public financial resources, any
public company, national company or any other
company that is under the authority of a central
or local public authority and in which the
Romanian state or an administrative unit is sole
or dominant shareholder”

SCOPE
Critical remark - the scope of the Law does
not include information on the way in which
public funds or resources is used by private
entities
 Relation to information of private interest –
article 10 excludes the activity of public
authorities and institutions related to
answering petitions and audiences, if this
activity concerns approvals, authorisations,
services as well as any other requests other
than information of public interest”

EXCEPTIONS
certain categories of classified information –
those in the field of national defense, public
security and public order, those that concern
the deliberations of public authorities an
those that concern economic and political
interests;
- article 13 : „information that favour or hide a
breach of law cannot be considered as classified
and represent information of public interest”.
1.
EXCEPTION – CLASSIFIED INFORMATION
Law no. 182/2002 on classified information
- article 24 (5): “it is forbidden to classify
information, for the purpose of hiding breaches
of law or administrative errors, or of restricting
access to information of public interest,
restricting exercise of fundamental rights and
damaging the legitimate interest of persons”;
- Article 20 – procedure for “de-classification”;
EXCEPTIONS
Information on commercial and financial
activities, rendering this information public
affects the principle of free competition
3. Information on personal data - “any
information concerning an identified or
identifiable natural person”;
- Article 14 (1) - “information concerning
personal data of the citizens may become
information of public interest as long as it
affects the capacity to exercise public
functions”
2.
EXCEPTIONS
4. Information concerning the procedures within
criminal or disciplinary investigation;
5. Information on judicial procedures, if it affects
the principle of a fair trial or the legitimate
interest of parties in the procedures;
6. Information that would affect measures aimed
to protect the young.
EXCEPTIONS – CRITICS
The principle of prevalence of public interest, if
put in balance with the private interest that is
protected, is not regulated as a general
“exception to the exceptions”. It applies only in
the cases of:
- Personal data;
- Classified information.
OBLIGATION TO PROVIDE INFORMATION EX
OFFICIO
Legal acts regulating the organisation and
functioning of that authority or institution;
 Organisational strucutre, competence of
departments, functioning programme, programme
when the institution is working with the public;
 Names of the leading persons of the institution
and of persons in charge with public
communication;
 Identification data, including adress and contact;

OBLIGATION TO PROVIDE INFORMATION EX
OFFICIO
Financing sources, budget, ballance;
 Programmes and strategies;
 List of public interest documents;
 List of categories of documents dealt with by
that authority or institution, according to their
legal attributions;
 Ways in which the decision not to disclose
information of public interest can be contested.

OBLIGATION TO PROVIDE INFORMATION EX
OFFICIO
posting at the headquarters of the institution
represent the minimum obligation for rendering
public ex officio public interest information;
 the authorities and institutions have the
obligation to present the information in a way
which is accessible to the public and concise,
so as to facilitate the contact

IMPLEMENTATION OF OBLIGATION TO PROVIDE
PUBLIC INFORMATION
General concept of the - autonomy and decentralization of implementation;
 The Law does not create a central authority
which would supervise the obligation of
authorities to respect the right to free access to
public information (as HU, IR, DE, UK – however,
they deal primarily with data protection) ;
 The execution of this obligation is left upon
each authority or institution, notwithstanding if
it they are central or local authorities.

IMPLEMENTATION AND CONTROL

Judicial control is the core concept of the law

If an authority refuses to respond to a request
for public information, the petitioner, after
accomplishing the hyerarchical administrative
comlpaint, has the right to contest the decision
before a Tribunal
IMPLEMENTATION

Institutions have the obligation to create offices
or departments within each authority or
institution, that would be competent for public
information and public relations, as well as
persons with specific duties in this field
IMPLEMENTATION
i) institutions and authorities at central level are
obliged to create at least an office competent
for public information and an office competent
for relations with media;
 ii) de-centralized local structures subordinated
to central authorities are obliged to create
offices for information and public relations and
to appoint persons competent for relations with
media;
 iii) communes (rural local authorities) are
obliged to appoint persons competent for public
relations and media relations.

IMPLEMENTATION



Providing information upon request - standard
models of request and reply
Oral request - answer is communicated instantly,
within the public working hours. If information is not
available immediately, institution shall recommend
the person to formulate a written request
Written request must contain: the authority to which
it is addressed, the information that is requested, in
such a way as to allow the institution to identify the
information, name and signature of the petitioner, as
well as the addres at which he/she desires to receive
the answer
DEADLINES
10 days for communicating the information
(general deadline).
 if the difficulty, complexity or volume of the work
necessary to identify and render the information
makes necessary to overpass this deadline, it can
be extended to 30 days. However, the autority is
obliged to inform the petitioner within 10 days that
the deadline has been extended to 30 days.
 5 days for refusal to make the information
available and to motivate the refusal.

REMEDIES IN CASE OF REFUSAL
omission to respond to a petition within the
prescribed deadline is considered “tacit
refusal”;
 Stages of the procedure:
- administrative complaint
- judicial claim

ADMINISTRATIVE COMPLAINT
the “administrative complaint” is addressed to the
head of the authority of institution;
 The deadline to submit the administrative
complaint is 30 days from the moment that the
person learns about the refusal.
 In case of tacit refusal, the 30 days are calculated
from the expiration of the deadline within which
the authority is obliged to respond - 10 days from
the moment when the request is deposed

ADMINISTRATIVE COMPLATIN
If the petitioner receives a preliminary answer
stating that the deadline has been prolonged to
30 days, the deadline for filling the
administrative complaint is calculated from the
expiration of these 30 days.
 if the complaint is grounded, the answer shall
be given within 15 days, which will comprise the
requested information, as well as the
disciplinary sanctions against the person
responsible for the default
 (no provisions with respect to ”if the complaint
is not grounded”)

JUDICIAL REMEDIES
Special features of the juridical claim based on Law
no. 544/2001, by comparison to ordinary
administrative procedure:
a) general administrative law provides that the
administrative complaint is mandatory, while Law no.
544/2001 provides that the action before the
Tribunal can be filled within 30 days from the expiry
of deadlines provided by article 7 – meaning that the
administrative complaint is not a mandatory step
before going to court;
JUDICIAL REMEDIES
b) the Tribunal is always the competent court
and the territorial competence is regulated
more flexibly: the petitioner may fill the action,
alternatively, at the Tribunal of its domicile or
of the headquarters of the institution;
c) in general administrative law, the petitioner
must “prove an interest” in his complaint. In
the field of the right to access to public
information, the general principle is that the
petitioner may request the information “just for
curiosity”, the interest being self-understood
JUDICIAL REMEDIES
d) The complaint on the basis of Law no.
544/2001 is judged under “emergency
procedure” (article 22 (5) of the Law.
In practice, the case takes between 1 and 2
years, including the appeal before the Court of
Appeals
In practice, the respondent institution is bound
by law to initiate an appeal – otherwise the
legal department of that institution could be
held accountable for the possible sanctions
CASE LAW
Decision no 2447CA/2010 of the Alba Iulia Court
of Appeals. The Court rejected the argument of
the public authority asserting that the written
demand was difficult to read (due to difficulties in
handwriting). If difficulties appear with respect to
the identification of the information requested
(according to article 7 of the law, including as a
result of the handwriting), the authority was
obliged to inform the petitioner about this
situation within 10 days.
Decision no. 601/2009 of the Bacau Court of
Appeals. The Court held that the law would be
infringed if the petitioner was not provided with
the concrete information he/she has requested.
In that case, the petitioner asked for data
concerning the salaries of civil servants and the
authorities’ response was limited to making
references to “salary leaflets”, without providing
concrete data about payment documents and
other requested relevant working hours data.
Case no. 990/2010, X v. Cluj Cityhall. The Court
of Appeals decided that the name of a person
together with its association with a public
function are elements of public interest and
cannot be subject to the exception based on
personal data. Additional information, such as
the date when the working relations with the
Cityhall ceased, were considered by the Court not
susceptible as being covered by the “personal
data exception”. Case-law Analysis, page 24;
CASE LAW
CM v. Breaza Cityhal (2011) - the petitioner
requested copies of the decisions and
authorisations by which a bus stop was
dismantled and a press kiosk was authorised to
be built.
The Tribual admitted the claim, determining that
the requested information was of public interest.
The appeal of the Cityhall was rejected for
procedural grounds.
DE c. Patarlagele Cityhall, the petitioner, who was
a party in another case on restitution of property,
requested documents that the municipality used
for restitution of property to other owners.
The municipality refused the free access to
documents (without providing reasons). The
Tribunal did not accept the claim, but the Court of
Appeals admitted the claim and obliged the
municipality to transmit the requested documents
to the petitioner.
However, the Court did not accept the claim for
moral damages, due to the fact that prejudice
was considered not to have been caused by the
refusal to grant access to documents, but by the
documents themselves.
X v. Ministry of Justice (2010) - the petitioner
sent a request by e-mail, requiring to be
informed about the procedure by which he
could obtain the Romanian citizenship.
The Court of Appeals dismissed the claim. The
argument was that such a request was a
request for information of personal interest,
which is subject to relevant legislation on
petitions (Ordinance no. 27/2002) and not an
information of public interest. The Court relied
also on article 10 of Law no. 544/2001.
CI v. Valcea Prosecutor’s Office (2010) the
petitioner requested copies of resolutions
issued by the prosecutor within the criminal
procedure. Both the Tribunal and the Court of
Appeals rejected the petitioner’s claim, for two
reasons: first, the Prosecutor’s Office
responded to the petition and informed the
petitioner about the procedural acts and,
second, the procedural acts were
communicated to the petitioner through the
normal procedure (although he claimed that
he did not receive the acts).
TM v. Local Public Finance Service Dambovita (2010).
The petitioner requested the document containing the
attributions of head of unit M.C. The Tribunal admitted
the action, rejecting the plea of the Public Finance
Service based on the personal data exception and lack
of direct interest. The Tribunal also granted moral
damages to the petitioner.
However, the Court of Appeals annulled the decision of
the Tribunal, on the ground that the plaintiff did not
prove a direct interest in the requested information.
In our opinion, the decision of the Court of Appeals was
wrong, as the Law 544/2001 expressly provides that
any person could request the information. Indeed, the
Court applied the criterion valid in general
administrative law, ignoring the special provisions of
Law no. 544/2001. The decision was irrevocable.
TM v. Police (2011) - the petitioner requested
a table containing the list of all employees of
the Local Police, including surname, first
name, position and functions. The authority
replied that the names of all employees were
already made public ex officio, on the website
of the institution, but that other information
was covered by the exception on personal
data. Both the Tribunal and the Court of
Appeals upheld the position of the Police.
ISD v. Ministry of Foreign Affairs. The
petitioner filled 52 different requests, by which
he claimed information concerning the number
of consular posts in country X (each request
concerned a different country), the number of
certificates of citizenship issued by the
consular posts in that country between 1991
and 2009 and the number of oath ceremonies
held by the consular posts in that country. The
Tribunal admitted all the claims. The Ministry
invoked the lack of interest in the claim.
The Tribual held that in cases involving Law no.
544/2001, the interest is affected by the mere
fact that the request for public information is
not answered. Also, the Tribunal did not accept
the argument of the Ministry that the
information is very complex and the Ministry
lacks a database that would enable answering
the punctual 52 requests of the complainant.
The Court of Appeal rejected most of the
appeals.
However, in one case, 670/24.03.2011, the
Court of Appeal admitted the appeal and
rejected the claim on the merits, considering
as grounded the argument according to which
the complex nature of the information
requested, the fact that there is no database
and the fact that, anyway, all the decision on
citizenship are published in the Official
Journal.
The cases prove two tendencies:
 on one hand, important considerations are
made by the Bucharest Court of Appeal: no
interest is needed in case of the Law no.
544/2001; if the institution does not execute
the judgment obliging it to render the public
information, articles 24 and 25 of the Law no.
554/2004 on administrative claims apply to
the execution of judgments;
 differences in jurisprudence can occur in front
of the same Court, in similar claims (the 52
claims were treated differently, as we exposed,
sometimes with different outcomes).

CIISTE SRL was a limited liability company had its
object of activity university education. The company
was involved in a case against Romania in front of the
European Court for Human Rights (Dumitrascu and
Mitrache v. Romania), as it was not recognized as an
university education institution.
In order to prepare this case, it requested to a high
number of authorities information concerning the
professional traject of its graduates.
In one case it requested the National Agency for Civil
Service to provide data on the opinion it provided for an
civil servant. Even if the obligation to grant data was
generally admitted in such a case by the Court of
Appeals, the Court held that the request lacked
sufficient precision (indicating at least the period when
the opinion was issued) as the National Agency
provides opinions for all civil servants on central level.
In another case, CIISTE SRL requested the General
Directorate of Public Finance Vrancea the following data: 1)
whether Mrs. X attended a competition involving mandatory
university degree;
2) whether Mrs. X was admitted following such competition;
3) when was the competition held;
4) what were the results of the competition.
The Court held that the General Directorate answered
within the 10 days deadline, by informing that Mrs. X was an
employee since 1996, on a position not involving university
degree, and that she requested to be upgraded in 2009,
presenting an confirmation on the part of the ”university” of
CIISTE SRL, but, however, that the National Agency for Civil
Service did not approve the upgrade. The Court of Appeals
held that the General Directorate did not breach its
obligation under Law no. 544/2001.
HD v. Ministry of Culture (2009) the petitioner
requested the institution to respond ”what have it
done since 1989 for continuing building culture
establishments that were unfinished” and “why a
certain building was not included in the
reconstructure programme”. An answer was
given, but the petitioner contested it before the
Tribunal as being incomplete. The Tribunal
rejected the claim for “lack of interest”. The Court
of Appeal rejected the reasoning of the Tribunal
and upheld the claim of the petitioner,
considering that the interest results from the right
of any person to have access to information of
public interest.
G.A.V. v. Timisoara Cityhall, the petitioner
requested information concerning the
construction authorisation granted to a person
that held ½ of a building together with the
petitioner. The petitioner claimed that the
construction authorisation was not respected
and the Cityhall accepted the finalisation of
the construction. The Tribunal and the Court of
Appeal rejected the claim and argued that
“negative response” is a legitimate response
ane cannot be equivalent to “tacit refusal”.

N.M. v. Sabaoani Cityhall (2007). The petitioner
requested the Citiyhall to inform him about the
agenda of Local Council Meetings and about
decisions taken in those meetings. The petition
was rejected for the reason that this
information is made public ex officio on the
basis of Law no. 52/2003 on transparency of
decision making and this law provides that a
draft act may be given to consultation to an
individual person if a specific act is requested
(instead, N.M. required all the acts).

-
FNI v. ROMTELECOM SA (2009). FNI, being
imprisoned in the Arad Prison, requested the
telephone company information on “why there
are not sufficient public telephones in the
prison”. The claims before the Courts were
dismissed, on two grounds:
ROMTELECOM is a private company and is not
covered by Law no. 544/2001
It answered the petitioner by saying that lack of
technical conditions is the reason for not
installing more telephones.
MNE v. Forest Authority Amarandia (2008). The
petitioner requested a copy of the “inventory
position” of a plot of 10,8 ha of forest land. The
Forest Authority refused the request, invoking
several reasons, among which the fact that it
was not the owner of the land and the lack of
interest of the petitioner.
The Tribunal obliged the Forest Authority to send
this information and obliged it to pay 3000 lei
(around 900 Euro) moral damages and 100 lei
(30 Euro)/day of delay until fulfillment of the
obligation.

IPP v. General Directorate for Child Protection
(2008) .
An NGO (Institute for Public Policy) requested
information on the way in which fonds from the
European Community were used. The Tribunal
obliged the General Directorate to issue the
information. However, the request for moral
damages was not accepted.
Center for Legal Resources v. District Council (2008)
The NGO asked the District Council Braila detailed
information about the way in which access to public
information and transparency in decision-making process
is implemented. The information was needed for a project
funded by the EU.
The District Council replied that due to the high amount of
information requested, it is unable to respond within the
prescribed deadline, but offers the possibility of the
requesting NGO to study all relevant documents at the
headquarters of the institution.
Claims before the Tribunal and Court of Appeals were
rejected, as the reply was not interpreted as “refusal” but
as a positive answer, because the authority “made
available” the relevant documents.
Association for Information and Civic Attitude
“European Horizon” v. Pascani Local Council
(2007). The Association requested information
about the way in which houses built through the
National Housing Agency were distributed.
Following the refusal of the Local Council, the
Tribunal and the Court of Appeals accepted the
claim and obliged the authorities to provide the
information.
1500 lei judicial expenses were granted.
The procedure lasted 8 months.
JMG v. Eforie City Council (2008). The petitioner
requested copies of all decisions of the City
Council by which plots of land belonging to public
property were transferred into private property of
the State, between 2000 and 2008.
The Tribunal and the Court of Appeals obliged the
City Council to provide the copies, rejecting the
argument of the authority that the petitioner
showed no interest.
EVALUATION OF CASE-LAW
In most cases, public information requests
concerned:
 restitution of property;
 salaries of civil servants;
 measures adopted in criminal proceedings;
 expenses from public funds;
 requests for reobtaining Romanian citizenship
STUDY CONDUCTED IN 2011 (IPP)
Tribunal (first instance jurisdiction) rejected
61,5% of the requests based on Law 544/2001.
Decisions of the Tribunal were reversed by the
Court of Appeals in 17% cases (of which, in 27%
of the cases the appeals were filed by petitioners
and in 71% of the cases by the authorities)
EXECUTION OF JUDGEMENTS

article 24 of the Law no. 554/2004 on
administrative claims: if, within the
administrative claims procedure, the Court
obliges the authority to issue an act or any
other document, the decision shall be
executed within the deadline provided in it
and, if the decision does not provide any
deadline, within 30 days from the date when
it is irrevocable
EXECUTION OF JUDGEMENTS
Paragraph (2) of article 24: if the deadline is not
respected, a fee shall be applied to the head of
that authority, equivalent to 20% of the minimum
gross salary for each day of delay.
 The petitioner has the right to obtain damages for
the delay.
 paragraph (3), non-execution of decision after the
fee provided by paragraph (2) represents a
criminal offense, punishable with prison from 6
months to 3 years or with criminal fee.

EXECUTION

Article 25 regulates the procedure for applying
the fee and for granting damages for delay to
the petitioner. The competent court is the
execution court, which delivers an expedite
judgement, after summoning the parties.
INCOMPATIBILITY WITH OTHER PIECES OF
LEGISLATION
-
-
Relation with the “Law on petitions” (Ordinance
no. 27/2000 – regulates petitions concerning
access to information of “personal interest”
Ordinance 27/2000 obliges all authorities to
respond within 30 days – which is the general
administrative deadline.
EXAMPLE OF INCOMPATIBILITY

-
Law on treaties (590/2003) – provides that the
text of an international treaty cannot be made
public before ratification, except for the case
that the parties to a treaty expressly agree
The law on treaties “prevails”
In very important cases, treaties are made
public by the consent of both parties
Q&A

-
-
What happens in case of“Silence of
administration”
Romanian law provides the answer in general
administrative procedure: failure to respond
within the deadline provided by law represents
“tacit refusal”
Moreover, persons often bring judicial claims
for “incomplete answer”
Q&A
Implementation – do authorities execute
judicial decisions?
- In practice yes. As failure to do so is a criminal
offence, we are not aware of cases when such
criminal procedures have been started against
responsible persons;

ORGANISATION WITHIN INSTITUTIONS
Each ministry has the obligation to create an
office for public relations and an office for
relations with media
 Ministry of Foreign Affairs – Communication
Department (director general)
- Institutional Relations and Public Information
Directorate (director)

ORGANISATION

-
How things work
The Director for Institutional Relations and Public
Information receives the requests
It sends the request to the competent department,
asking for a deadline
Receives the request and sends it to the petitioner
Approval of the minister is taken in “most
important cases” (see below). Normally, the
Director of the competent department and the
Director for Institutional Relations and Public
Information decide to release the information.
MEASURES TO ENHANCE IMPLEMENTATION
Consolidation of units/responsible persons
within institutions
- number
- position (head of unit/director)
- possibility to take decisions on granting free
access should be given to specially assigned
persons
I.
MEASURES TO ENHANCE IMPLEMENTATION
II. Information culture within institutions
- Civil servants, especially those holding
management positions, should be trained
about the legal framework on public access to
information;
- Leadership (political level)
MEASURES TO ENHANCE IMPLEMENTATION
Means to spread information about legal
framework:
- seminars/workshops with civil servants, which
would include simulations;
- awareness raising publications
- media campaingns
Importance of targeting aslo the judicial system
MEASURES TO ENHANCE IMPLEMENTATION
III.
-
-
-
Involvement of the media
media/journalists are a key component of
requesters of information;
heads of public institutions are politicians –
more sensible to media reactions than
decisions of other authorities
tool: establishing a confident relation with the
media
MEASURES TO ENHANCE IMPLEMENTATION
IV. Involvement of the civil society
- Inform the public and the NGOs about the legal
framework on free access;
- NGOs should become a key requester;
- Use of funds/EU funds, if available, for NGO
projects in the field of free access to public
information
Example: a website containing case-law on free
access to public information
MEASURES TO ENHANCE IMPLEMENTATION
V. Strengthening the legal framework
- Legal status of decision of the Commission
(example – “Article 19” model law)
- Special sanctions for not respecting decisions
of the Commission;
- Procedures for applying sanctions
- Non-respect of judicial decisions – criminal
offence
SPECIFIC PROVISIONS ON THE MEDIA
Law:
- Principle according to which access of media to
information of public interest is guaranteed;
- Obligation to appoint a speaker (art. 16)
- Obligation to organize a press conference, at
least monthly – within which questions
concerning information of public interest are
answered (art. 17)
MEDIA
-
-
Obligation to grant accreditation to journalists,
without discrimination;
Accreditation is granted upon request, within 2
days;
Authorities may refuse granting accreditation or
may withdraw accreditation only for actions that
impeach the normal activity of the authority, not
for opinions expressed by the journalist;
Refusal is sent in written and does not affect the
right of the press body to obtain accreditation of
another journalist
MEDIA
-
-
-
Obligation to inform in due time about the
press conferences or other media actions;
Access of media to press conferences or other
public actions may not be restricted, under any
reason;
Obligation to allow the presence of the media
to activities to which public is participating;
Journalists do not have the obligation to
publish information provided by the authorities
PRESS
Government Decision 123/2002:
- Functions of press officers:
-
-
-
To provide to journalists, promptly and completely,
information of public interests concerning the
activity of that institution;
To provide accreditation within 2 days, without
discrimination;
To inform in due time about media events and to
grant access to journalists
PRESS
Functions of press officers:
- To ensure the dissemination of press releases,
press documents interviews and briefings, within
the media events;
- To provide to journalists press files related to the
activity of the institution;
- Not to refuse or withdraw the accreditation, except
for actions actions that impeach the normal
activity of the authority;
- In case of withdrawal, to grant accreditation of
another journalist to the respective press body
MEDIA
Accreditation:
- Is granted upon request to journalists and
press bodies;
- Permits are not transmissible;
- Permits allow the physical presence of the
journalist inside the headquarters of the
institution or at the activities of the institution
to which access to media is granted
MEDIA
Accreditation does not provide for the right to
control the published materials;
 Participation of journalists to activities of public
institutions cannot be restricted or limited
through internal regulations that exceed the
framework of Law 544/2001;
