4. Implementing the legal framework for open government: Towards a more transparent and participatory government in Romania
This chapter discusses Romania’s legal framework and its implementation in the open government areas of transparency and citizen and stakeholder participation. It finds that laws and regulations for access to information are mostly aligned with OECD practice. However, challenges in their implementation persist and more efforts are needed to bring practice in line with legal provisions, notably by establishing more effective appeal and oversight mechanisms. It further notes that while citizen and stakeholder participation takes place in all policy areas, it remains largely limited to written consultation on draft normative acts to fulfil legal requirements. The chapter provides recommendations to broaden the spectrum and make participatory processes more impactful.
A solid legal and regulatory framework for open government is an essential pre-condition for successful reforms (OECD, 2019[1]). Evidence collected by the OECD suggests that the underlying legal and regulatory basis for open government in OECD Member and Partner Countries is usually very broad (OECD, forthcoming[2]). In most countries, it includes, among others, provisions and rights in the constitution, as well as in laws and regulations on access to information, stakeholder participation, anti-corruption, the protection of personal data and national archives, civic freedoms, digital government, open data, accountability and integrity, etc.
In Romania, since 1991, a great number of laws and regulations on open government policies and practices have been adopted. Most notably, Law no. 544/2001 on free access to information of public interest and Law no. 52/2003 on decisional transparency in public administration have a long history of implementation and are today very well-known across the administration.
Applying the OECD Openness Spectrum (see Chapter 3 on Methodology), this Chapter benchmarks Romania against Provision 2 of the OECD Recommendation on Open Government (OECD, 2017[3]) (Box 4.1), reviewing Romania’s legal framework and its implementation in the area of transparency and access to information (ATI), as well as participation. It finds that while Romania has made progress in fostering access to information, significant implementation and enforcement gaps remain both in terms of proactive and reactive disclosure of information. In this regard, the Chapter provides recommendations to make Romania’s ATI system more robust and foster effective implementation. The Chapter further highlights that citizen and stakeholder participation is largely limited to written consultation on draft normative acts. In conjunction with the Civic Space Review of Romania (OECD, 2023[4]), the Chapter offers recommendations on how to develop more impactful participatory processes throughout the policy cycle.
An analysis of Romania’s legal framework in the area of digital government, including open data, can be found in the OECD Digital Government Review of Romania (OECD, forthcoming). The Civic Space Review of Romania (OECD, 2023[4]) assesses Romania concerning its civic freedoms and rights and related legislation, and also includes a discussion of legislation on access to information, public consultations, and other forms of participation.
Provision 2
“Ensure the existence and implementation of the necessary open government legal and regulatory framework, including through the provision of supporting documents such as guidelines and manuals, while establishing adequate oversight mechanisms to ensure compliance”.
Source: OECD (2017[3]), “Recommendation of the Council on Open Government”, OECD Legal Instruments, OECD/LEGAL/0438, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438.
The protection of open government principles, policies and practices at the constitutional level can provide public institutions and stakeholders with a clear mandate to promote open government reforms and it can create the necessary legal certainty and legitimacy for effective implementation of all subsequent legislation (OECD, 2022[5]).
Like the Constitutions of most OECD Member countries (see Monitoring Report on the Implementation of the 2017 OECD Recommendation on Open Government (forthcoming[6])), the Romanian Constitution from 1991 explicitly recognises several rights relating to open government. In particular, Article 31 of the Constitution guarantees the right to information and mandates that “[t]he public authorities […] shall be bound to provide correct information to the citizens in public affairs and matters of personal interest”. The right to information is also enshrined in the Constitution or has been recognised by high-level courts in 79% of responding OECD Member countries (OECD, 2022[7]). The Romanian Constitution further provides for the right of petition (Art. 51) and the right to legislative initiative (Art. 74) and it includes an obligation of co-operation between government and “social bodies” (Art. 102) and establishes the Economic and Social Council as an advisory body to government (Art. 141). Lastly, civic freedoms and rights underpinning open government are also part of the Romanian Constitution, such as Freedom of Expression (Art. 30), Freedom of Assembly (Art. 39) and the Right of Association (Art. 40) (Table 4.1).
Government transparency refers to “stakeholder access to, and use of, public information and data concerning the entire public decision-making process, including policies, initiatives, salaries, meeting agendas and minutes, budget allocations and spending” (OECD, 2022[5]). In turn, access to information (ATI) refers to the existence of a robust system through which government information is made available to individuals and organisations (OECD, 2021[8]).
Romania’s legal framework for transparency and access to public information is comprehensive, consisting of several laws and government decisions that were adopted over the past twenty years. In particular, the provision for access to information in Article 31 of the Romanian Constitution is operationalised through Law no. 544/2001 on free access to information of public interest. Under this law, “free and unrestricted access of the person to any information of public interest, defined as such by this law, constitutes one of the fundamental principles of relations between individuals and public authorities, in accordance with the Romanian Constitution and international documents ratified by the Romanian Parliament” (Art.1).
Law no. 544/2001, as the central piece of legislation, is complemented by several Government Decisions and Laws, which, for example, detail requirements to provide specific information in certain areas, such as the wealth of certain public officials (Law no. 176/2010) or surrounding procurement processes (Emergency Ordinance no. 34/2006), as well as other laws, such as the recently adopted Law no. 179/2022 on open government data. Together they contribute to citizens’ ability to see, understand, and monitor government’s action, as outlined in the OECD Openness Spectrum. A non-exhaustive overview of existing laws and regulations in the field of transparency can be found in Table 4.2.
The following section analyses Romania’s legal framework for access to information and its implementation against OECD standards and good practices. It finds that while Romania’s legal framework for access to information has improved, significant implementation and enforcement gaps remain both in terms of proactive and reactive disclosure of information. In this regard, the Chapter for example identifies shortcomings in applying the legal provisions related to the usage of personal data protection to exempt access to information. The Chapter offers suggestions to improve and simplify related governance mechanisms and provides recommendations to make Romania’s ATI system more robust and foster implementation.
Romania’s access to information framework is encompassing
In Romania, Law no. 544/2001 defines public information as “any information related to or resulting from the activities of a public authority or organisation, regardless of the medium, material form, or manner in which the information is conveyed”. According to Article 19, information is defined as “all records held by a public body, regardless of the form in which the information is stored (document, tape, electronic recording and so on), its source (whether it was produced by the public body or some other body) and the date of production” (Article 19, 2016[10]). In their answers to the 2020 OECD Survey on Open Government, 76% of responding OECD countries also indicate that their ATI law applies to any material held by public authorities in any format (OECD, 2021[11]).
The scope of application of ATI laws indicates to which public institutions the law’s provisions apply. The scope of Romania’s ATI law is broad and in congruence with most OECD countries, since it applies to both regional (75% of OECD countries) and local levels of government (81% of OECD countries) (OECD, 2021[11]). Further, in line with most ATI laws across the OECD, the Romanian legislative framework covers public utilities operators, public enterprises, as well as political parties. Going beyond most legislative frameworks in OECD countries, the Romanian ATI legislation concerns also sports federations and non-governmental organisations that receive public funding (Art. 2, Law no. 544/2001) (Figure 4.1).
Note: N=32. Percentages relate to OECD countries that provided data in the OECD Survey on Open Government.
At the time of writing, Costa Rica did not have an ATI law but an Executive Decree applying to the Executive branch, therefore the country was not included in this question.
Source: 2020 OECD Survey on Open Government.
Fostering the proactive disclosure of information
Proactive disclosure refers to the act of regularly releasing information without the need for a request by citizens or stakeholders. It reduces the administrative burden for public officials handling and answering individual ATI requests, which can often be lengthy and costly (OECD, 2022[7]). Favouring proactive disclosure “encourages better information management, improves a public authority’s internal information flows, and thereby contributes to increased efficiency” (Darbishire, 2010[12]). Finally, it ensures timely access to public information for citizens as information is published as it becomes available and not upon request (OECD, 2016[13]).
Most ATI laws require the proactive disclosure of a minimum set of public information by each institution subject to the law (OECD, 2021[11]). The most commonly disclosed items stated in the law or other legal framework are those related to the institution itself: its functions (93% of responding OECD countries), the organigram (89% of responding OECD countries) and the services offered (67% of responding OECD countries). Other relevant documents required to be published regularly include legislations, budgeting documents, annual activity reports and audit reports. A smaller number of countries demand the proactive publication of the minutes of meetings with external organisations (15% of responding OECD countries) or the ministers’ agendas (22% of responding OECD countries).
Provisions in Romania’s ATI Law on proactive disclosure have evolved substantially over the years, most recently with the adoption of Government Decision 830/2022 (see Box 4.2). Proactive disclosure is mandatory for all public institutions at both the national and subnational level in Romania that fall under Law no. 544/2001 on Access to Information of Public Interest. The information that needs to be proactively disclosed is in line with most OECD countries. It covers 16 out of 17 categories surveyed by the OECD, including information regarding the institution itself, as well as information on procurement, budgeting and participation (Figure 4.2).1
Note: N=27. Percentages relate to OECD countries that provided data in the OECD Survey on Open Government. Multiple selections possible.
For Costa Rica, the information relates to the Executive Decree applying to the Executive branch. Information from Denmark, Greece, Japan, Korea, Latvia and Sweden is missing.
Source: 2020 OECD Survey on Open Government.
In Romania, proactive disclosure of information was first established by Law no. 544/2001 and was expanded through the Memorandum on Increasing Transparency and Standardizing the Display of Information of Public Interest (Government of Romania, 2016[14]). It was further institutionalised and standardised by Annex 4 of the National Anti-Corruption Strategy (Decision no. 1 269/2021) and Government Decision no. 830/2022, modifying the methodological norms for the application of Law no. 544/2001. The progressive consolidation of the legal framework for proactive disclosure of information has contributed to an increasing amount of information being proactively disclosed in recent years. For example, the Memorandum of the Government on increasing transparency and standardising the publishing of information of public interest (Government of Romania, 2016[14]) helped to increase compliance rates of line ministries substantially (OECD, 2016[15]).
Through the adoption of Government Decision (GD) no. 830/2022, substantial progress has been made regarding unification of the previously scattered legal framework on proactive disclosure of information, including by clarifying legal provisions for responsible public officials. Most importantly, GD no. 830/2022 mandates the up-to-date and exact content of proactively disclosed information, including specifications on the website structure and recommendations on their format. Moreover, the mandatory publication of institutional performance information, budget and procurement information is particularly noteworthy given their relevance for the public interest as indicated by frequent requests on these topics (General Secretariat of the Government, 2021[16]).
Given that the adoption of GD 830/2022 is relatively recent, it is too early to assess its impact. However, over time it can contribute to fostering the de facto availability of relevant information and facilitate citizens’ navigation when searching for it. Combined with the provisions on machine-readable formats, GD 830 has the potential to increase the relevance and uptake of proactively published data.
Source: Author’s own elaboration.
Proactive disclosure has contributed to increasing transparency
According to the monitoring reports by the General Secretariat of the Government, there is a positive development regarding the ex officio display of information by Romanian public institutions as an increasing amount of information is disclosed both at the central and local level (General Secretariat of the Government, 2021[16]; General Secretariat of the Government, 2021[17]).2 A positive trend is also noticeable in key areas of transparency. At the time of writing, Romania’s open data portal already hosted more than 3 000 datasets from 118 different agencies, and use by citizens was reportedly growing (https://data.gov.ro/).
Budget transparency has also seen improvements over time with Romania now ranking 29th (out of 117 ranked countries) in the Open Budget Index prepared by the International Budget Partnership (n.d.[18]), although scores have declined from a high point in 2017. Finally, according to the OECD (2022[19]), some progress has also been made in bringing Romania’s Electronic System of Public Procurement (SEAP / SICAP) into line with the Open Contracting Data Standard and the creation of the Unique Register of Transparency of Interest (RUTI) has contributed to facilitate access to information on legal persons who interact with the authorities and institutions of the central public administration.
With the adoption of GD 830/2022, the proactive disclosure on institutional websites has been substantially standardised. Central and local public institutions falling under Law no. 544/2001 in Romania are now obliged to publish and keep updated3 on the institutional website the information that was originally contained in multiple legislative acts4 and covers five broad categories. Besides information about the institution, such as its organisation and function, and contact details, three categories relate to essential areas of open government: Information of public interest, decisional transparency (i.e. participation), and integrity (Table 4.3).
As such, the legal requirements for proactive disclosure of information are encompassing. However, the existence of legislative provisions does not always lead to an improved level of transparency. As the GSG’s most recent monitoring shows (General Secretariat of the Government, 2022[20]), substantial gaps in the implementation of the existing legal framework continue to exist. The average compliance rate across all public institutions is currently at 67%, meaning that two-thirds of the data that should be available is de facto available (General Secretariat of the Government, 2022[20]). Further, the findings indicate that there is a large variance across different types of institutions. While prefecture institutions show an overall compliance rate of more than 82%, the compliance rate for local-level institutions is only approximately 50% (Figure 4.3). Even within types of institutions, compliance rates differ. For example, Ministries display on average 70% of the information they are supposed to. However, while the Ministry of National Defence publishes 92% of the required information proactively, the Ministry of Family, Youth and Equal Opportunities publishes only 44%.
Note: Displays the results of the most recent monitoring (June-July 2022) considering the legislative changes as present in the Annexes regarding the approval of the National Anti-corruption Strategy 2021-2025 and its related documents (Government of Romania, 2021[21]); and Government Decision no. 830/2022.
Source: Author’s illustration based on General Secretariat of the Government (2022[20]), Transparency and participation in public administration: Centralizers related to the monitoring process regarding the degree of compliance of the central and local public administration authorities with the standards for the ex officio display of information of public interest, in the period June-July 2022, https://sgg.gov.ro/1/transparenta-decizionala-monitorizare/.
The location and format of proactive disclosure can be improved
Where and how information is disseminated is a key component of any ATI law since it can make it easier for a variety of stakeholders to access it (OECD, 2022[7]). As OECD data shows, the majority of proactively revealed information is published on the websites of each ministry or institution, then on a central portal, or a combination of the two. Other modes of publication include official gazettes, which are typically used to publish information on budgeting or legislation (such as the constitution, organic laws, decrees, and regulations) (OECD, 2021[11]). To ensure that stakeholders with limited information and communication technology (ICT) skills or Internet access have the same opportunity to access and use public information, information should be disseminated through a multichannel approach (OECD, 2022[7]).
In Romania, the information contained in Table 4.3 must be published at least through three channels, including (a) the institution’s website, (b) display at the headquarter of the concerned institution, or publication in the Official Gazette, or in mass media, or in own publications and (c) through consultation directly at the institution’s headquarter the institution’s website (Art. 11, Methodological Norms). In 2020, 95% of public institutions used at least two of these channels to proactively publish information (General Secretariat of the Government, 2021[17]), the most used channel being the display at the institution’s premises (3 893 respondents, 40.23%) and the institution’s website (3 591, 37.11%). 2 458 public entities from central and local level also have a virtual library/information point (58.57%) while 1 739 do not (41.43%) (General Secretariat of the Government, 2021[17]), indicating an overall positive trend towards easier access to information through integrated digital access points.
Further, there is a general provision that the information should be presented in an “accessible, standardised and concise form” as well as “usually […] in an editable format (Art. 10, Methodological Norms). This is further specified in the information published on the institutional website (Annex 1 of Government Decision 830/2022):
Legislation must be published with links to the Legislative Portal (http://legislatie.just.ro)
Primarily text-based information needs to be in (editable) PDF, doc, .docx, .odt and other text formats. This includes programmes and strategies, reports and studies, draft normative acts as well as the ATI request form and other standard forms used by the institution in relationship with citizens (the forms can also be available in an online version);
Primarily number-based information needs to be in .ods, .xml, .xls or .xlsx format. This includes information on the budget, the payment statement, the salary rights statement, the procurement plan, the investment plan, the centralizer of procurement contracts, and the annual statement of non-reimbursable financing granted to individuals or non-profit legal entities.
According to a GSG survey, the visibility of information on the institution’s website and the architecture of the website (both 37% of respondents) have been the main obstacles for users to locating information (General Secretariat of the Government, 2021[16]). Further, 80% of the information required to be proactively published in 2021 was available on public institution’s website in a non-editable format. Accordingly, the government’s own evaluation finds that the display of information is often conducted in a “dysfunctional and unsystematised” way, thereby “creating the impression, where the data existed, that it was not published or that it was intentionally withheld away from the public eye” (General Secretariat of the Government, 2021[16])5.
Implementation challenges particularly at the local level were also pointed out by non-public stakeholders. For example, a report drafted by a non-governmental institution noted persistent challenges in relation to the proactive disclosure of budget information at the subnational level (Funky citizens, 2022[22]). Out of 109 municipalities, less than half (48) published their draft local budgets by the legal deadline in 2022. Also, the reusability of this type of information has been impacted by the format of publication: Almost 60% of draft budgets were published in a scanned PDF format, according to the same study, therefore making the processing of this information very resource intensive.
While these findings concern a period before the most recent legislative modification, evidence collected through the OECD Surveys and during the OECD fact-finding missions indicates that they seem to persist. Non-public stakeholders surveyed for this Review indicate that proactively disclosed information has deficits regarding all evaluated criteria of availability, comprehensiveness, timeliness, accessibility and reusability. With accessibility being the only criterion being rated as fully fulfilled by some respondents, 57 to 87% of respondents state that the other criteria are only somewhat, very little, or not at all fulfilled. In particular, reusability of proactively disclosed information seems to be of concern for the majority of respondents (Figure 4.4). Participants of interviews conducted for this Review highlighted that this is particularly the case for sensitive types of information, such as budgeting and procurement data.
Holding regular meetings to discuss updates on proactive disclosure and carrying out frequent revisions of what must be published can avoid the risk of a ‘tick-the-box’ exercise of proactively disclosing information (OECD, 2022[7]). If the information made available is not in line with the minimum standards or if there are vast amounts disclosed in a format that is not comprehensible or usable by most stakeholders, then its availability may not have any effect. For the moment, few OECD countries have such measures in place: 12% hold regular meetings with citizens and stakeholders to gather their feedback and 38% carry out regular revisions (OECD, 2021[11]). Moving forward, Romania could consider consulting regularly with the users of proactively disclosed information to gather their feedback and improve disclosure.
Legal provisions on proactive disclosure of information in Romania are congruent with many OECD countries in terms of what information needs to be published, through which channels it should take place and in which formats. The monitoring efforts by the GSG provide valuable insights regarding the de facto proactive disclosure of information by Romanian public institutions. They show that, while proactive disclosure has improved over the years, notable gaps continue to exist between the legal requirements and the practice. This hinders proactive disclosure from developing its full potential. Since they concern also reactive disclosure of information, recommendations on ways in which Romania may be able to close these gaps are provided below under Towards effective implementation of Romania’s access to information framework.
Fostering the reactive disclosure of information in Romania
Reactive disclosure of information refers to the right of citizens to request information that is not made publicly available (OECD, 2022[7]). Reactive disclosure has been an integral part of Romania’s agenda to improve transparency since the adoption of Law no. 544/2001 and the corresponding Methodological Rules. As the below analysis shows, the legal framework for reactive disclosure in Romania is overall well developed. Further, according to the latest available numbers (2017 – 2020), reactive disclosure has seen an overall positive development, at least in some regard. For example, in 2020, 99.5% of requests were granted and 87% within the time limit of 10 days according to self-reporting of public institutions (General Secretariat of the Government, 2021[17]). While this does not allow for conclusions about the quality of the information, it indicates an overall high level of responsiveness. Nonetheless, challenges persist, notably concerning the efficiency and effectiveness of the process, the appropriate use of legal deadlines including their extensions as well as of exemptions.
Public information can be requested by any person in Romania
Ensuring inclusive and equitable access to information for all citizens and stakeholders is key for the exercise of the right to access information. In principle, any person regardless of age, gender, sexual orientation, religious belief, legal status and political affiliations; and institutions and organisations, whether governmental or non-governmental, from civil society, academia, the media or the private sector, should be able to make a request for information (OECD, 2017[3]).
Accordingly, 82% of responding OECD countries have ATI laws that stipulate that anyone can file a request for information. This is also the case for Romania where, “any person has the right to request and obtain from public authorities and institutions information of public interest” (Art. 6, Law no. 544/2001).
Citizens have different reasons to contact a public authority and an access to information request may not always be appropriate, for example, if a citizen would like to provide feedback on a public service. In the past, messages addressed to public institutions that did not fall into the ATI framework were not processed except for a response that the matter is not in the scope of the law. Simplifying this requirement, GD no. 830/2022 introduced that all those requests that do not fall under Law no. 544/2001 are being treated as petitions. This is a promising legal modification as it can ensure increased responsiveness by public institutions.
Ensuring the anonymity of requesters
Protecting the identity of those filing an access to information request is important to avoid the risk of profiling citizens or stakeholders and governments acting on biases when responding to them, especially in countries where stakeholders and citizens are not protected from or are afraid of reprisals (OECD, 2022[7]). While 75% of OECD respondents to the 2020 OECD Survey on Open Government did not allow for anonymous requests, in 25% of respondents, the legislative framework explicitly protects the integrity and privacy of individuals and parties that file a request for information (OECD, 2021[11]).
Romania’s ATI framework currently requires the information request to include name, surname and signature of the applicant, as well as the address to which the response is requested. Interviews with public officials indicate that, in practice, the requester’s information is often not subject to verification and therefore even fake identification normally does not prevent the authority from answering an ATI request. Aligning the legal framework to the practice would reduce legal uncertainty. Further, anonymity would be crucial against the background of Strategic Lawsuits Against Public Participation (SLAPPs) against journalists that have been occurring in recent years, as identified by the Civic Space Review of Romania (OECD, 2023[4]). Romania could, hence, consider legally mandating only requesting the minimum amount of information needed for the public official handling the request to be able to find the information and share it with the requester, as done by countries such as Australia, Brazil, Finland, Ireland, Mexico and Sweden (OECD, 2022[7]).
Increasing the efficiency and effectiveness of the ATI request process
The interaction between the public institution and the information requester throughout the access to information process should be as simple as possible. One option is to provide citizens with multiple channels for requesting information. In most countries, requests can be made by post (94% of responding OECD countries) and in person (68% of responding OECD countries). Most countries also allow requests by email (77% of responding OECD countries) or online (on each ministry’s website or a dedicated portal) (55% of responding OECD countries).
In Romania, the request can be made verbally, which includes in-person, or in written form, either electronically or on paper (Art. 6 and Art. 7(3), Law no. 544/2001) (Figure 4.5). In 2020, the preferred way of making requests for information of public interest was verbally (725 537 requests, 65.27%), followed by electronic (336 418, 30.26%) and paper (49 637, 4.47%) (General Secretariat of the Government, 2021[17]).
In addition, offering standardised forms can facilitate communication throughout the ATI process. In Romania, public institutions are obliged to publish an electronic version of the standardised request form on their website (GD 830) which citizens can use to request information via email (Art. 15, methodological norms 2002). A corresponding form must also be provided to citizens if they wish to appeal an authority’s decision to deny access (Annexes 5 and 6, Methodological Norms). Public institutions may also offer interactive online forms, but an OECD review of Ministry’s websites shows that at least at a central level most of them seem to rely on email exchanges with attachments. Further, there are two standardised response forms available to public institutions that need to be used for responding either to a request or to a complaint (Annex 7 and 8, Methodological Norms). These forms are templates with a body of text where only specific information needs to be inserted, depending on the case. In a first step to facilitate communication for both public institutions and citizens, Romania could consider using online contact forms more widely, mainstreaming the use of the forms that are already present on the websites of the Ministry of Justice (Ministry of Justice, n.d.[23]) or the GSG (General Secretariat of the Government, n.d.[24]).
The ability to inquire about the status of a request is also key to allowing citizens and civil society actors to monitor its progress. It makes it easier for requesters to detect unjustified delays and unjustified information denials. While nearly half of OECD countries (41%) allow requests to be consulted throughout the process in practice, this is currently not the case in Romania. An exception is the Ministry of Development, Public Works and Administration’s electronic register that allows tracking the status of both petitions and requests (MDLPA, n.d.[25]). In interviews conducted for this Review, both public institutions and civil society expressed the expectation that such a practice, including a corresponding tool, would considerably improve the process. Romania may wish to establish a central platform that allows citizens to take each step of the process and monitor its progress (e.g. as part of the recommended Open Government Portal or as part of the existing National Electronic System (SEN), www.e-guvernare.ro/en which is managed by the Authority for the Digitalization). This portal should exploit synergies with existing portals in the area of transparency and open government, such as the open data portal. Such a platform could serve not only for submitting the request, but also for receiving a note confirming that the public institutions have received the request, as it is legally mandated in Romania (Art. 20, GD 123 on Methodological Norms 2002) and 39% of OECD countries (OECD, 2021[11]). This platform could also provide the requester with updates and decisions on the request, as well as the information itself.
Lastly, if the information that was requested is provided, it should be as useful as possible for the requester. In Romania, public institutions have to provide the information in an editable format, if it is available in such format and requested by the applicant (Art. 15(4), Methodological Norms). In practice, interviewees noted that the information is often provided in the form of scanned PDF files which can make further processing cumbersome.
To ease the process of requesting information, Brazil created Fala.br, an innovative platform that combines the federal ouvidorias and the Citizen Information Service obligations. It allows citizens to request information and make complaints or claims against any federal body, express satisfaction or dissatisfaction with a service or programme, and provide suggestions for improving or simplifying public services. Importantly, users can also follow the progress of their request and file an internal appeal in case of non-conformity with the response. In addition, Fala allows the government to provide up-to-date statistics on requests. Overall, by centralising ATI requests into a single system, the Fala platform has significantly simplified the process for citizens, stakeholders and federal government institutions when making or processing an ATI request.
Source: From OECD (2022[7]), The Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance, based on Government of Brazil (n.d.[26]), Fala.BR – Plataforma Integrada de Ouvidoria e Acesso à Informação, https://falabr.cgu.gov.br/publico/Manifestacao/SelecionarTipoManifestacao.aspx?ReturnUrl=%2f.
Responding timely to access to information requests
Having clear timeliness standards that are respected is crucial as it provides certainty and transparency to requesters on how and for how long the process for their request will last. Long time limits for the provision of information can deprive the requester of their interest, for example, if the information is urgently needed. There are maximum deadlines for responding to requests with approval or refusal, with an average of 21 working days in OECD countries. Most countries (91% of responding OECD countries) have also established limits on timeline extensions on responses, with an average of 19 days (OECD, 2022[7]).
Overall, Romania’s legal framework concerning timeliness of access to information is broadly in line with OECD practice (Figure 4.6). It requires public authorities and institutions to respond in writing to a request for information of public interest within 10 days. This can be extended to 30 days, depending on the difficulty, complexity, volume of documentary work and urgency of the request. Verbal requests for information by journalists need to be communicated within 24 hours (Art. 8 (5), Law no. 544/2001). Like in 39% of OECD countries (OECD, 2021[11]), the public institution is legally required to confirm the receipt of the request (Art. 20, GD no. 123/2002). A refusal needs to be communicated within 5 days (Art. 7, Law no. 544/2001).
However, insufficient adherence to the legally stipulated deadlines appears to be an issue in practice. This is despite self-reporting of public institutions stating that 87% of requests are handled within ten days in 2020 (General Secretariat of the Government, 2021[17]). Parts of the challenges relate to the COVID-19 crisis that led to the introduction of emergency measures affecting access to information. As was the case for many countries, the Romanian Decree regarding the establishment of the state of emergency in 2020 doubled the legal deadlines for resolving access to information requests (Official Gazette of Romania, 2020[27]). Despite the emergency decree no longer being in place, delays in responding to ATI requests persist, according to interviewees. As it is pointed out by the European Union Commission’s Rule of Law Report, “insufficient and inconsistent responsiveness of authorities to freedom of information requests represent an ongoing problem, including on urgent decisions taken on e.g. the COVID-19 pandemic or the Ukrainian refugees crisis” (European Commission, 2022[28]). As the Civic Space Review of Romania (OECD, 2023[4]) notes, public institutions tend to apply the upper limit of 30 days response deadline independent of the complexity, volume etc. of the request.
Romania should further ensure that all public institutions respect the deadlines for responding to requests that are set by law. In a first step, Romania could consider specifying more concretely and/or more narrowly the conditions for applying the extended response deadline. Digital tools can play an important role to improve implementation, for example by generalising online tracking systems for requests. In this regard, a register of documents such as the European Commission’s Register of Commission Documents (europa.eu), supported by a document management system is essential for complying with deadlines of ATI requests. Moreover, the consistent application of appropriate deadlines could be improved through better institutional oversight and enforcement as discussed below.
While times of crisis require setting priorities for available resources, the impression of arbitrary decision-making should be avoided to not risk eroding public trust in government. In this regard, Romania may want to consider establishing a protocol for access to information in times of crisis, as done for example by Mexico City in Mexico (Box 4.4).
Following an earthquake in 2019 and the COVID-19 pandemic in 2020, the government of Mexico City decided to create a protocol to access information and transparency in times of crisis. In sum, it outlines the minimum actions for transparency in emergency situations, by bodies subject to the ATI law, by oversight bodies, and by people and communities in each of the stages of a risk situation: prevention, reaction and recovery. These actions can include digitising documents, identifying which information should be published and disseminated during the emergency situation and how to monitor and evaluate emergency ATI actions.
To create the Protocol, the government conducted an open and participative process.
First, it carried out six co-creation tables with multiple stakeholders to co-design a preliminary draft of ideas, proposals and definitions to be included in the protocol.
Second, in collaboration with the National Centre of Disaster Prevention and external specialists on risk management, the content for the Protocol was elaborated. For this stage, three co-creation tables with multiple stakeholders were encouraged to revise the content in a collaborative way and agree on a final document.
Third, once the Protocol was launched, a toolkit was co-elaborated with stakeholders to help different actors implement the Protocol.
It is written in plain language and reflects the different needs of all sectors of society. It is also adaptable to any crisis context and provides recommendations to avoid the circulation of fake news during a crisis.
Source: From OECD (2022[7]), The Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance, based on INAI (2020[29]), Información de Iberoamérica para hacer frente a los desafíos derivados por la emergencia sanitaria provocada por el Covid-19 [Information from Ibero-America to face the challenges derived from the health emergency caused by Covid-19]; INFOCDMX (2021[30]), Protocolo de Apertura y Transparencia ante el Reisgo: Prevención, Reacción y Recuperación [Opening Protocol and Transparency Before Risk: Prevention, Reaction and Recovery].
Making appropriate use of exemptions to disclosing government information
Countries can have legitimate reasons to exempt some information from being disclosed. For example, the information in question could pose a threat to national security or international relations, or could expose the personal data of an individual or violate their privacy. That said, exceptions must be well-defined and concrete to prevent an excess of discretion for each public official in ways that could limit public access to information (OECD, 2022[7]).
In Romania, exceptions from public information concern the following types of information (Art 12., Law no. 544):
classified information regarding defence, safety and public order
classified information regarding deliberations of authorities and concerning economic and political interests
information affecting intellectual or property rights or fair market competition
personal data, unless it affects the ability to exercise public functions (Art. 14(1))
information affecting the success of investigations or risking harm to sources
However, information that favours or hides the violation of the law by a public authority or institution is always of public interest (Art. 13).
The abovementioned exceptions to access to information in Romania are broadly in line with practice in OECD countries (OECD, 2022[7]). In Romania, 35% of denied requests were rejected because they concerned information exempted by law in 20206 (General Secretariat of the Government, 2021[17]). Challenges arise from the fact that the Romanian law is not concrete enough and therefore can lead to diverging interpretations by central authorities and even courts. Specifically, civil society highlighted that personal data protection is being used as a fig leave to not publish information of public interest (Interviews, (European Commission, 2021[31]; European Commission, 2022[28]). These observations appear to persist despite a provision that was introduced by Government Decision no. 478/2016 amending the Methodological Norms for the application of Law no. 544/2001 stating that: “In the situation where the requested public information is on a document that contains both information to which access is free and information exempted from free access, the requested public information will be communicated, after the anonymisation of the exempted information” (GD no. 123/2002 para (2^1) of art. 22).
While the legislative framework tries to take account of potential challenges arising from conflicts between access to information and personal data protection through the abovementioned provision, challenges persist in practice. The law only states that the concerned public institution needs to evaluate these circumstances, without referring to applicable standards (Art. 21 and 22).
Public interest tests and harm tests present two common ways to exempt information while ensuring that any exceptions employed are proportionate and necessary (OECD, 2022[7]). According to the harm test, the publication is only withheld when there is a real risk of harm to a protected interest, whether it be for an individual, the national defence, commercial interests, or others. The public interest test requires public officials to determine whether withholding information that could assist the public interest is justified compared to the harm that disclosure would cause to the protected interest or individual. (Open Society Justice Initiative, n.d.[32]). A mandatory public interest override, which can force disclosure of information that is in the public interest, such as information on human rights abuses, corruption or crimes against humanity, is also an important standard in ATI laws.
As it is the case in 97% of OECD countries (OECD, 2021[11]), in Romania, public officials need to provide a justification for denying access to information (Art. 7, Law no. 544/2001). Having such a requirement in place is valuable as it can deter public officials from refusing a request easily and encourages them instead to verify that the exception is legitimate or seek advice from an oversight body on whether the exception is plausible. However, in the case of Romania, the exact exemption that is applied to deny access to information is not part of the standardised response form, therefore keeping the reasoning for the public institution’s decision vague. Half of the non-public stakeholders surveyed (50%) indicate that they found the justification provided in case of denial to be very little or not at all based on valid reasons (OECD Survey among non-public stakeholders). Hence, Romania could make the justifications for denying access to information more concrete by revising the standard response form for an access to information request provided in Annex 7 of the Methodological Norms (Law no. 544/2001). Furthermore, the effect of a justification requirement is substantially weakened in the absence of an external oversight body, as it is the case in Romania.
Establishing a more solid appeals process
In the event of access to information being limited by a public body, effective appeals processes are necessary to resolve conflicts. In Romania, there are two appeal processes available. Firstly, if a request for information is denied, the requester can communicate a grievance to the same body to which they originally made the request (Art. 21, Law no. 544). According to 2020 data from public institutions’ self-reporting, 768 administrative complaints were received in 2020 under Law no. 544/2001, out of which 406 were resolved favourably (52.86%) and 328 rejected (42.71%) (General Secretariat of the Government, 2021[17]). If rejected, the person can file a complaint with the administrative litigation section of a responsible court (Art. 22, Law no. 544). A total of 726 appeals in court were registered with 22% (160 decisions) resolved favourably and 20.1% (146) rejected. Most cases (57.85%) were still pending in court (General Secretariat of the Government, 2021[16]).
Challenging the rejection of access to information in court requires considerable resources. Especially, private citizens that do not have the institutional support of a civil society organisation may be deterred to insist on a judicial review. Representatives of civil society organisations that were interviewed for this Review further emphasised that even if they successfully challenged in court, the information is usually outdated and therefore useless at the end of the process. These statements appear plausible against the state of overall efficiency for administrative cases in Romania. As the 2022 EU Rule of Law Report mentions, the overall efficiency decreased considerably for administrative cases in 2020 with the disposition time in the first instance having increased from 138 days to 609 days and pending cases in courts having doubled (European Commission, 2022[28]). While this development needs to be understood against the background of the COVID-19 pandemic, it shows that Romanian courts are not always able to provide timely clarifications regarding the implementation of access to information legislation.
In addition, while systematic assessments are difficult, there are indications that courts show diverging applications of the law when deciding on appeals to denied access to information. A 2017 report by a CSO found that “that the interpretation of the courts is non-unitary and discriminatory” (Center for Public Innovation, 2017[33]). The analysis, based on decisions by the Romanian Courts of Appeal regarding cases concerning Law no. 544/2001 spanning six years, finds inconsistencies in multiple areas. For example, annexes to building permits were considered by some Courts to be of public interest, and by others as confidential information.
In contrast to 85% of OECD countries (OECD, 2021[11]), in Romania, there is currently no external appeal process available. In an external appeal process, the requester can submit his/her appeal to an independent oversight institution (e.g. an information commission, ombudsman). Establishing an external appeal process in addition to the existing appeal processes could substantially contribute to resolving conflicts concerning withheld information. The third party that the appeal is addressed to has more independence than the public institution that withheld the information. At the same time, the process would not be as resource intensive as a judicial appeal. To make the external appeal process effective, information on the grounds for the process should be available. Further, the process should be free of charge, subject to clear timelines, and there should not be a need for legal representation (OECD, 2022[7]).
Canada has a more substantial process than most as the Office of Principle Interest makes recommendations on which exceptions (including both exemptions and exclusions) could be applied to the records requested. These recommendations are reviewed by the Access to Information and Privacy Office within the department, and the information within the records is severed and withheld based on a final determination by the head of the institution or his/her delegate. Once the requester receives the response, the requester may submit a complaint to the Office of the Information Commissioner (OIC), who, during the investigation, may require further justification from the institution as to why the information in question was withheld. If the OIC believes the information was withheld in error or without sufficient justification, the Information Commissioner may order the institution to release the information.
The United Kingdom provides a good practice in terms of its appeal processes. The country has internal, external, and judicial appeals processes in place. If information is denied, the requester can first appeal to the organisation that holds the information and ask to review the initial decision. If not satisfied with the response, the requester can turn to the responsible Information Commissioner (Scotland or the rest of the United Kingdom), depending on the organisation. Thereafter, the complainant can appeal to a First Tier Tribunal (also called General Regulatory Chamber) which is a court that is responsible for handling appeals against decisions made by government regulatory bodies. All three types of appeal procedures satisfy the conditions of being accessible without legal representation, subject to clear timelines, free of charge, and information on the process and the grounds being available. The United Kingdom also has a dedicated webpage entitled “If your request is turned down” to provide specific instructions to requesters on the next steps that they can take to submit an appeal.
Source: OECD (2021), 2020 Survey on Open Government; OECD (2022[7]), The Protection and Promotion of Civic Space: Strengthening Alignment with International Standards and Guidance.
The deterring effect of sanctions
Establishing sanctions for public officials who fail to meet the obligations outlined in ATI laws is essential. The lack of sanctions can create perverse incentives, resulting in breaches of an ATI law, such as overly-broad application of exemptions. It can also be the source of weak enforcement of the law (OECD, 2022[7]).
Romania’s legal framework for ATI mentions that disciplinary sanctions can be taken against a public official who fails to comply with his/her obligations (Art. 21, Law no. 544/2001; Art. 35, Methodological Norms 2002). As for all disciplinary offences, these sanctions can include (Art. 492 (3), GEO no. 57/2019 regarding the Administrative Code):
reduction of salary rights by 5-20% for a period of up to 3 months;
reduction of salary rights by 10-15% for a period of up to one year;
suspension of the right to promotion for a period of one to 3 years;
demotion to a lower-level public position, for a period of up to one year, with the corresponding decrease in salary;
The application of sanctions is based on the suggestions of an “analysis commission” within the concerned public authority.
Towards effective implementation of Romania’s access to information framework
Improving the inclusiveness of access to information
For certain under-represented demographics, such as people from low socio-economic backgrounds, youth, and people with disabilities, among others, exercising their rights to access information can be especially challenging. This concerns both reactive and proactive disclosure of information. For example, citizens need to be able to understand the information that is provided proactively on government websites, and they should also be able to request information independent of their own financial means.
Ensuring that access to information requests is free of charge is one of the most important ways to reduce related obstacles. Access to public information is generally free of cost in Romania. If the public administration in question is asked to reproduce information (Art. 9(1), Law no. 544/2001), requesters can only be subject to the cost of copying services (Art. 18, Methodological norms). This is in line with practice in 82% of OECD countries (OECD, 2021[11]). In the OECD Survey on Open Government for Non-Public Stakeholders, almost two-thirds (64%) of non-public stakeholders asserted that, based on their own experience, public institutions respect these limitations of the costs fully or to a great extent.
In addition, simple language, meaning writing that is as clear and concise as possible and is appropriate for as broad a target audience as possible, is essential in making information on ATI accessible for everyone (OECD, 2022[7]). As the OECD Civic Space Report finds (OECD, 2022[7]), some countries, including the United States, have introduced legislation on simple language in public administration, such as the Plain Writing Act (Government of the United States, 2010[34]). Others, like the Ministry of Social Development in New Zealand, have introduced checklists for public officials in plain language (Government of New Zealand, n.d.[35]). There are currently no binding or non-binding provisions on plain language in Romania7. To foster inclusiveness, Romania could consider complementing the websites of Romanian public institutions and authorities with guidance on the ATI process beyond legislation that is complex to read. Additionally, Romania could compile guidance to public officials on how to write in plain language when disclosing information and communicating with citizens.
In Romania, public institutions at the subnational level need to display proactively disclosed information also in a minority’s language, if an ethnic minority represents at least 20% of the population (Art. 12, Methodological Rules). For the time being, there is no obligation in this regard for public institutions at the central level. Moving forward, the essential government information disclosed by central public institutions could be provided in the most common minority languages, such as Hungarian and Romani.
Since the adoption of Emergency Ordinance no. 112/2018, public institutions are required to take efforts towards websites that are accessible by “making them easily identifiable, functional, understandable and stable” for everyone, specifically including persons with disabilities. To help public institutions improve accessibility of government websites, the Ministry of Public Consultation and Social Dialogue developed a guide addressed to public institutions (Ministry of Public Consultation and Social Dialogue, 2017[36]). Stating that access to information is a fundamental citizens’ right, this technical guide helps public officials to design their institutional websites in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 as a common standard to ensure that people with disabilities can understand, navigate and interact with these websites effectively. However, according to a survey conducted in 2021, 60% of the responding institutions do not have tools to facilitate access for persons with special needs (General Secretariat of the Government, 2021[16]). Romania should consider dedicating additional resources to support public officials in overcoming these challenges. Further, in line with almost half of OECD countries (44%) (OECD, 2021[11]), Romania could consider providing additional support for requesters with special needs.
Designed in collaboration with the French Government Information Service (SIG), this Panorama aims to provide an initial overview of the legal frameworks and guidelines, practices and tools used to increase the accessibility of public communication in OECD member countries, with a particular focus on persons with a disability. It covers trends, successes and challenges related to governance, audience insights and engagement, digital tools and processes, awareness-raising and training, as well as evaluation of accessibility and inclusion in public communication.
It finds that public officials can seize a number of opportunities to improve accessibility initiatives by:
Setting explicit principles with flexible deployment, backed by high-level commitment.
Engaging target audiences, and listening and adapting more systematically to their needs and behaviours.
Ensuring the accessibility of communications by design, from the outset.
Raising awareness and educating to enable the extension of accessible communication measures and initiatives to the whole of society, including through the collaboration of public organisations with the private sector, civil society and the media, which are key partners in promoting accessibility.
Evaluating the accessibility of public communication beyond websites and applications.
Source: Cazenave and Bellantoni (2022[37]), “Accessible and inclusive public communication: Panorama of practices from OECD countries”, OECD Working Papers on Public Governance, No. 54, OECD Publishing, Paris, https://doi.org/10.1787/222b62d9-en.
Monitoring and evaluating for more effective disclosure
The lack of strong monitoring and evaluation mechanisms is a major challenge in implementing ATI laws (OECD, 2022[7]) (for a more extensive discussion of the way Romania monitor and evaluates ATI, see Chapter 7 on Monitoring and Evaluation). For ATI in particular, robust data on the number of requests, the topics requested, the average response time, and the reasons for denial/refusal, among others, can allow countries to identify specific needs for information and bottlenecks of implementation. Using these insights to improve processes of pro- and reactive disclosure can help ease the administrative burden of ATI requests, saving time and resources for the public administration in the future. For example, 40% of OECD countries that responded to the 2020 OECD Survey on Open Government, like Australia, Lithuania, Portugal and Tunisia, require public institutions to proactively publish information that has been repeatedly requested with a positive decision taken on its disclosure (OECD, 2022[7]).
In Romania, while almost all requests to access to information are decided favourably for the applicant (General Secretariat of the Government, 2021[17]) and requests concern similar topics (General Secretariat of the Government, 2021[16]), the processing of requests and the referral of requests to other public institutions continue to bind valuable resources in the Romanian administration. Romanian public officials recognise that the standardised proactive disclosure of frequently requested information would lead to a decrease in the number of requests (37.8% of public institutions) and would have a considerable impact on their workload (33.3% of public institutions) (General Secretariat of the Government, 2021[16])
The most recent modification of the Methodological Norms in the form of GD 830/2022 provides an entry point for more targeted interventions as it explicitly allows public institutions to proactively release information that has been requested frequently (Art. 22(4), Methodological Norms). For the moment, however, this remains only an option, not an obligation. Furthermore, the thresholds and procedures, including alternative ways of data collection, remain unclear.
As can be seen in Figure 4.8, Romanian public institutions have taken first steps towards collecting relevant information for monitoring purposes since almost two-thirds (63.6%) of surveyed institutions collect information on which primary subjects are requested. However, for the time being, the vast majority (78%) does not collect information on the satisfaction with the response to ATI requests and almost no public institution (5%) collects data on how citizens use the information that is proactively published (OECD, 2022[38]).
To make disclosure of information more efficient and effective, Romania could make it mandatory to collect suitable information. Starting from the topics that are frequently requested, data collection could also cover how and where the published information is used. Data collection methods should also include qualitative approaches, such as focus groups or workshops, to allow public institutions to get a better sense of what would be needed to make proactive disclosure more meaningful for civil society in public decision-making. These efforts should be complemented by corresponding trainings on the collection and analysis of generated data.
Australia’s Statement of Principles to support proactive disclosure of government-held information offers an insight into the type of information that countries can proactively publish. The statement encourages all Australian governments (Commonwealth, state, territory, and local) and public institutions to commit to being Open by Design by building a culture of transparency and by prioritising, promoting and resourcing proactive disclosure. The principles recognise that “information held by government and public institutions is a public resource and, to the greatest extent possible, should be published promptly and proactively at the lowest reasonable cost, without the need for a formal access request”, and that “a culture of transparency within government is everyone’s responsibility requiring action by all public sector leaders and officers to encourage and support the proactive disclosure of information”. Among the instruments to foster Open by Design, the statement outlines that public bodies should regularly review requests and analyse trends with a view to maximising proactive disclosure of similar documents and encourages them to install proactive disclosure mechanisms whenever they create any new institutions or processes.
Source: Office of the Australian Information Commissioner, (2021[39]), Statement of Principles to Support Proactive Disclosure of Government-held Information, https://www.oaic.gov.au/freedom-of-information/guidance-and-advice/statement-of-principles-to-support-proactive-disclosure-of-government-held-information.
Strengthening institutional oversight
An important factor in the implementation of ATI laws is the existence of institutional arrangements for co-ordination and oversight of their application across the public sector (OECD, 2022[7]). They can be an independent information commission (or agency or other body) with a mandate purely to oversee the implementation of ATI laws or they could be a body like an ombudsman with an ATI mandate as part of a wider remit (e.g. human rights, discrimination or gender). The Protection and Promotion of Civic Space: The Global Context and the Way Forward (OECD, 2022[7]) report finds that most OECD countries have an ATI oversight body, which can be one or a combination of the following: an information commission/agency/body or ombudsman with a specific mandate for ATI (45% of OECD countries), an ombudsman with a broader mandate (27% of OECD countries), or a central government authority (52% of OECD countries) (OECD, 2022[7]).
In Romania, there is no independent ATI oversight body to contribute to the enforcement of legal provisions, i.e. to ensure that the public institutions’ practices adhere to the standards prescribed by the law. Moreover, only citizens can initiate the above-mentioned review process through which sanctions can ultimately be applied. It is questionable whether these isolated cases, even if growing in number, can sustainably secure a uniform application of legal provisions across the whole of the public administration.
The General Secretariat of Government, a central government authority, has a limited role in monitoring the implementation of access to information legislation. Public institutions are required to send annual reports on the implementation of Law no. 544/2001 to the GSG (Art. 27, Methodological Rules of February 7, 2002). Using a standardised model, this report contains information about the type of information provided, the reason why certain answers were not sent within the legal deadline, and others. However, the GSG’s oversight functions fall short of being fully effective as there is no possibility for the GSG to verify the accuracy and completeness of the public institutions’ self-reporting. Beyond these reports, the GSG performs monitoring of the proactive disclosure of information by reviewing public institutions’ websites. Specifically, the GSG checks whether all the information legally required to be proactively disclosed (Appendix 1, GD830) is available and provides scores of compliance (see also Chapter 7 for more details). In both cases, it remains unclear which actions the GSG can take based on its findings to ensure that public institutions that perform poorly in the implementation of the legislative framework improve in the future.
To improve oversight and enforcement of ATI, Romania could therefore consider establishing a dedicated ATI oversight body to ensure supervision, monitoring and evaluation of the ATI law. This oversight body would require sufficient resources and capacity as well as an adequate level of independence to ensure the protection of access to information. Such an oversight body would bring several advantages for the implementation of the legal framework: It would have a higher credibility than the institution withholding the institution, it would enforce access to information provisions in a less bureaucratic and resource-intensive way compared to the judicial appeal, and it would relieve the judicial system.
Using the momentum of the recently enacted EU Open Data Directive and the adoption of Romania’s first Law no. 179/2022 regarding open data and the re-use of public sector information, the oversight body could for example become the Romanian Authority for Digitalisation (ADR). The ADR was solely tasked with the digitalisation of government. However, in the framework of the recently adopted open data law (Law no. 179/2022), the Authority for Digitalisation is tasked with solving complaints by persons who consider their rights injured in relation to open data and public sector information reuse. This complaints process presents an intermediate step before the complainant can address the courts. Overseeing in addition the implementation of the access to information framework could therefore present an opportunity to exploit synergies.
Alternatively, if the oversight body shall be situated outside the central government, the National Authority for the Supervision of Personal Data Processing (ANSPDCP) would be another alternative. As an autonomous public authority with general competences in the field of personal data protection (Law no. 129/2018), the ANSPDCP guarantees respect for private life and the protection of personal data. In particular, as specified in Article 10, the Authority is tasked with monitoring compliance with the GDPR and applying sanctions and corrective measures to public authorities or private data operators violating the GDPR (US Library of Congress, 2021[40]). Several OECD countries have expanded the portfolio of the data protection oversight institution to also include access to information given the substantial complementarities between the topics, such as the Chilean Council for Transparency (Box 4.8).
The Council for Transparency (CPLT) is an autonomous oversight body. Its main task is to ensure proper compliance of public institutions and authorities with the Law on Transparency in Public Function and Access to State Administration Information (2008). This includes promoting and disseminating the principle of transparency and the right of access to information as an accountability tool as well as applying corresponding sanctions in the event of non-compliance. At the same time, the Council is mandated to support compliance with the Personal Data Protection Law.
The Council for Transparency is managed by a board of four Directors appointed by the President of the Republic, with prior agreement of the Senate, adopted by two-thirds of its members in office. This Board of Directors is responsible for the strategic direction and administration of the Council for Transparency. The presidency of the board of directors is rotating and is exercised by one of its directors for a period of 18 months.
In its work, the Council is supported by the Civil Society Council (COSOC) which is a forum that allows for citizen participation. The COSOC is an advisory body. It is involved in the design, implementation and evaluation of policies in the area of competence of the Council for Transparency and is based on a dedicated Citizen Participation Policy of the Council for Transparency.
Source: Consejo para la Transparencia (CPLT) (n.d.[41]), Consejo para la Transparencia website; Consejo de la Sociedad Civil (COSOC) (n.d.[42]), Consejo de la Sociedad Civil website; Consejo para la Transparencia (2020[43]), Ejecuta acuerdo del Consejo Directivo sobre política de participación ciudadana y deja sin efecto resolución exenta N°7, de 2013.
Empowering public officials responsible for ATI
In several OECD countries, the ATI laws require the establishment of an information office or officer responsible for ensuring the implementation of the legal framework within public institutions. 50% of responding OECD countries stipulate the establishment of an office/r in their ATI law. This officer is commonly mandated to guarantee various aspects of proactive and reactive disclosure of information (OECD, 2021[11]). While several countries may not directly include these provisions in the law, data shows that they have established similar positions in practice.
In line with this practice, Law no. 544/2001 requires each public institution in Romania to establish a dedicated ATI office or to assign the responsibility to designated person(s) (Art. 4). In addition, the Romanian law also foresees a designated public official for public communication about information of public interest in the form of a spokesperson for media representatives (Art. 16). For central government institutions, the law prescribes respectively one public information and press relations office (Art. 6, Methodological Norms 2002). The public information office is responsible for receiving, co-ordinating and responding to ATI requests as well as documenting them. In addition, the public information office is in charge of the public institution’s proactive disclosure of information and of the public institution’s reporting on access to information (Chapter IV, Methodological norms 2002). The press relations office, on the other hand, is responsible to provide journalists with information of public interest and to facilitate their take-up, for example by granting journalists accreditation and inviting them to press briefings (Chapter V, Methodological norms 2002). According to the government’s monitoring, in 2020, all public institutions had a dedicated officer or office in charge of the implementation of Law no. 544/2001 (General Secretariat of the Government, 2021[17]).
While all public institutions have a designated officer or office for access to information, there is a need to ensure the necessary human resources within public institutions and to provide them with necessary tools and support. While responsibilities are clearly assigned, the whole access to information portfolio tends to be administered by only one person per institution, which is the case in almost half (45.5%) of public institutions, and is noted as a continuous problem of insufficient human resources by the government (General Secretariat of the Government, 2021[16]). In addition, almost half of the public institutions (48.9%) noted the lack of digital tools that can support their performance for ATI (General Secretariat of the Government, 2021[16]). Specifically, an integrated platform for access to information could be beneficial both for proactive and reactive disclosure of information. It could provide a means for public officials that simplifies the tracking of requests, communication and collecting information for monitoring and evaluation. Providing central access to proactively disclosed information could also reduce the burden of requests that are produced because citizens cannot find the information. Such a platform can be part of an overarching open government platform, which brings together the main practices and tools in the field of open government as recommended in Chapter 5.
Moreover, there is very limited exchange between public officials responsible for ATI across public institutions. Despite repeated recommendations in the government’s own monitoring reports (General Secretariat of the Government, 2021[17]), there is no network of transparency specialists at the level of the public institutions. Supporting peer learning among public officials responsible for access to information could be encouraged. Learning from the experience of other public officials with similar problems through a dedicated network could be an important step forward to improve literacy while reducing the burden on the General Secretariat of the Government which is currently the only institution providing relevant training in the area.
In addition, further assistance by the GSG and the National Institute for Public Administration in the form of trainings and updated guidelines can contribute to developing the needed literacy among public officials for implementing the legislative provisions (see also Chapter 5). As the Government’s own evaluation states the “training of persons responsible for the application of Law no. 544/2001 remains a constant need” (General Secretariat of the Government, 2021[17]). While 90% (20) of responding institutions at the central level have received advice from the GSG and 63% (14) have participated in trainings offered by the GSG (OECD Survey among public institutions), the offer has limited capacities due to GSG’s own restrained resources. Although access to such courses is considered as useful or very useful by all public institutions, dedicated courses are provided by only one-third of all institutions that were surveyed by the GSG in 2021 (General Secretariat of the Government, 2021[16]).
Citizen and stakeholder participation is at the very heart of the concept of open government. The participation of the governed in the ruling exercise is a fundamental value of modern democratic societies (OECD, 2022[5]). Even though for many people participation in democratic life still starts and ends at the ballot box, increasingly, citizens across the OECD are using other forms of participation to express their political preferences and engage in public life (OECD, 2022[5]) As democracy has evolved and adapted to newly emerging needs and challenges, citizens have started taking a more central and active role at all stages of the public decision-making process (OECD, forthcoming[44]).
The OECD Recommendation of the Council on Open Government (OECD, 2017[3]) defines stakeholder participation as “all the ways in which stakeholders can be involved in the policy cycle and in service design and delivery” and distinguishes between three levels of participation, which differ according to the level of involvement and impact associated, namely: information8, consultation9 and engagement10. Provision 8 of the Recommendation provides further guidance to involve citizens and stakeholders:
grant all stakeholders equal and fair opportunities to be informed and consulted and actively engage them in all phases of the policy-cycle and service design and delivery. This should be done with adequate time and at minimal cost, while avoiding duplication to minimise consultation fatigue. Further, specific efforts should be dedicated to reaching out to the most relevant, vulnerable, underrepresented, or marginalised groups in society, while avoiding undue influence and policy capture;
The participation of citizens and/or stakeholders are both equally important, however, they should not be treated in the same manner (OECD, 2022[5]; OECD, 2022[45]). Both types of public can enrich the decisions, policies and services of the government, but they do not require the same conditions to participate and typically do not produce the same type of inputs (OECD, 2022[45]). For example, stakeholders can often provide more specific expertise and more specific inputs than the broader public, and they can represent specific sectors of society through mechanisms such as advisory bodies or expert panels. Stakeholders are often driven by specific interests linked to the group they represent, or the values they are supposed to embody. Citizens can provide a general understanding of the needs of the population, support legitimacy and trust in decisions, and enhance representation and inclusion (OECD, 2020[46]).
In Romania, participation is regulated through several laws and government decisions (Table 4.4). The country is one of the few OECD Member and Partner countries to have a dedicated law on participation. Notably, Law no. 52/2003 on decisional transparency in public administration regulates the participation of citizens and stakeholders in policy- and law-making processes. The law aims to increase the level of responsiveness of the public administration towards citizens; actively involve citizens in the administrative decision-making process and in the drafting of normative acts; and increase the level of transparency of the entire public administration. In addition, other legislation establishes permanent structures within public authorities and institutions for consultation with legally established organisations in civil society. For example, Law no. 367/2022 on social dialogue regulates communication and the conclusion of agreements between “social partners” (trade unions or trade union organisations, employers or employers’ organisations, as well as representatives of public administration authorities) on matters of common interest, creating more permanent channels of participation (see Box 4.9 for a description of the main types of participation at central government level in Romania11).
Consultation on draft normative acts
Romania is one of the few OECD countries that has a specialised law in place obliging government to consult with citizens and stakeholders across all policy areas. Law no. 52/2003 on decisional transparency in public administration in public administration and its related Methodological Norms demand that central government authorities, such as ministries, but also local administrations, such as municipal governments, notify the public of any intention to develop a draft normative act and to consult on the draft text. There are only few exceptions when this is not necessary, for example in the area of defence, or when it would involve information that would infringe fair competition or personal data rights. An announcement on the draft law needs to be made at least 30 days before the final draft is endorsed by the competent public authority. Based on the draft act as well as obligatory background documents, all citizens and legal persons can submit their written suggestions and opinions during a period of at least 10 calendar days. In addition, following the announcement of the intention to draft a normative act, public authorities are obliged to organise a public debate, if this is requested by a legally established association or another public authority. Public authorities also have the opportunity to organise public meetings where issues of public interest are debated. These public meetings can be held on any topic that the public authority wishes to gain input on by citizens and other interested stakeholders, also in an early stage of the policy-making cycle.
Social dialogue commissions and consultative bodies
There are different permanent mechanisms for consultation with civil society organisations. According to the Administrative Code (Emergency Ordinance no. 57/2019), Government can establish consultative bodies to solve problems within its competence (Art 24.). Further, most government institutions as well as Parliament, the Presidential Administration, the People’s Advocate and other autonomous bodies have to create a “structure for the relationship with the associative environment”. Through this structure, these institutions need to consult with the representatives of the associations and foundations that operate in their sphere of competence regarding joint programmes and activities (Art. 51, Ordinance no. 26/2000). Ultimately, the institution in question can decide on the exact set-up of these offices as well as the consultative bodies, including their purpose and functioning.
The creation of the Economic and Social Council, which serves as an advisory body for the Romanian parliament and administration, is another way to get more frequent input and dialogue with regard to draft normative acts (Law no. 248/2013). This council is autonomous and was specifically created to achieve the tripartite conversation between employers’ organisations, unions, and representatives of non-governmental organisations and civil society foundations at the national level. Its main task is to review draft normative acts before they are adopted and sent to Parliament.
Lastly, most ministries at the central level as well as governing bodies at the level of the counties and the municipality of Bucharest need to draw up consultative social dialogue commissions. These commissions consist of representatives of the central or local public administration, representatives of employers’ organisations and nationally representative trade union organisations (Law no. 62/2011). They serve as a permanent platform of exchange and discussion as well as a mechanism of consultation on legislative or other initiatives of economic-social nature.
Source: Author’s own elaboration.
Good practices in terms of participation exist at all levels of government in Romania. A significant share of non-public stakeholders that responded to the OECD Survey on Open Government among non-public stakeholders in Romania sees positive developments in terms of participatory practices in the country, acknowledging that both the quality and the number of processes have increased in recent years. The government’s monitoring of Law no. 52/2003 on decisional transparency in public administration also shows that some public institutions in Romania are making some progress in implementing the law, having for example established a person or structure responsible for the relationship with civil society. Digital tools, such as the E-Consultare website (Government of Romania, n.d.[47]), contact forms, and social media engagement, are slowly gaining importance in the public sector.
Despite this, public institutions still widely see citizen and stakeholder participation as a formality, rather than a transformative new way of conducting public policy. Interviewees for the present Review highlighted that few spaces for in-depth interaction between decision makers, and citizens and stakeholders exist. As noted in an evaluation conducted by the General Secretariat of the Government in 2021, “most of the time, the initiative to launch a participatory process rests with public institutions and their predominant purpose is to fulfil legal obligations” (Government of Romania, 2021[48]). The evaluation highlights that participatory processes are mostly conducted at later stages of the policy cycle (Government of Romania, 2021[48]). The evaluation further noted that, while the current normative framework establishes legal mechanisms capable of stimulating participation and establishing a solid collaborative relationship with civil society, the use of such mechanisms fails to make a real contribution to improving the quality of public decision making (Government of Romania, 2021[48]). This was also confirmed by government stakeholders interviewed during the OECD fact-finding mission for the Civic Space Review of Romania (OECD, 2023[4]).
Consultations typically take place online and deadlines for consultation are commonly set to the minimum length of 10 days that is provided by the law (OECD, 2023[4]). In addition, both the present Review and the Civic Space Review of Romania find that participatory processes in Romania are still not fully inclusive. Processes are often dominated by the “usual suspects” with few efforts made to remove barriers and involve citizens (rather than stakeholders) and minorities, such as Roma. Draft laws are often posted online for ten days and little outreach takes place to these groups. The Civic Space Review of Romania concludes that “the process of holding consultations is perceived as formalistic, with little focus on exploring additional, more innovative methods, uneven feedback mechanisms, and a limited understanding among public officials of the benefits of participation” (OECD, 2023[4]).
While the General Secretariat has taken different initiatives to improve the consistency and quality of participatory practices, including through the adoption of Government Decision no. 831/2022 which aims to standardise and streamline the procedure for participation and to create a uniform set of standards throughout the public administration, the government is not yet “equipped with the tools and skills to cope with the expansion and dynamics of Romania’s associative environment” (Government of Romania, 2021[48]). Levels of involvement remain low and some reports (e.g. (Council of Europe, 2019[49])) have noted a general deterioration in the relations between CSOs and government officials, as well as some consultation fatigue.
This section assesses citizen and stakeholder participation in Romania. It builds on the analysis provided in the chapter on “Citizen and stakeholder participation in Romania” which is part of the OECD Civic Space Review of Romania (OECD, 2023[4]), adding a particular emphasis on individual citizens’ ability to participate. The recommendations provided here are fully aligned with those provided in the Civic Space Review of Romania.
Applying a more impactful set of participatory mechanisms at all stages of the policy cycle
With few exceptions, such as the Educated Romania project (Presidency of Romania, n.d.[50]), participation at the level of Romania’s central government is often limited to written consultation on draft normative acts (OECD, 2023[4]). Annual reports from public authorities on the implementation of Law no. 52/2003, for example, indicate that public meetings on specific policy issues do not occur frequently. There is limited space for an in-depth exchange of perspectives on the policy issue. Instead, participation mainly focuses on testing ideas already developed through consultations on written text. As a result, citizens and stakeholders cannot provide early advice and have limited influence on the agenda-setting and conception stages of law- and policymaking. Moreover, these written consultations usually take place online, which excludes digitally disconnected persons.
In fact, Romania’s legislative framework allows public institutions to apply a more diverse set of participatory mechanisms, including at an earlier stage of the policy cycle. Law no. 52/2003 on decisional transparency in public administration enables public institutions to hold public meetings on matters that a given public authority identifies as being within its competence and of public interest. In addition, the Methodological Norms of Law no. 52/2003 make explicit that the law does not intend to limit public entities’ capacity “to establish additional activities to facilitate citizens’ access to the processes of drafting normative acts and administrative decision-making” (Article 1, par 2).
Moving forward, Romania could consider exploiting these opportunities more by engaging citizens and stakeholders earlier in the policy cycle. Projects expected to have a high impact could include pre-consultations as part of their design process to give all interested stakeholders the chance to contribute to the project’s development from the very beginning. Further, Romania could consider making additional efforts at adapting participatory processes, including type, format and communication, to the concrete policy question(s) at hand and to the main target audience in order to obtain more pertinent inputs (see also Box 4.10).
To increase meaningful interactions in person, Romania could also consider reviewing Article 7(9) of Law no. 52/2003 or Art. 7(1) of the corresponding Methodological Norms on the Application of Law no. 52/2003, both relating to the triggering of public debates on draft normative acts. Currently, only legally established associations or another public institution can request public debates. Alternatively, the competent public institution can launch a public debate at its own initiative. In an effort to reduce the barriers to public debates to take place, the legal framework could be revised to broaden the scope of actors that can request a public debate, including individual citizens or groups of them.
The Federal Ministry of the Environment, Nature Conservation and Nuclear Safety (BMU) – Germany’s ministry for environmental issues – has become a pioneer in the country’s efforts to involve citizens and stakeholders in the development of environmental policy programmes and strategies at the national level.
In 2012, the Ministry created a specialised unit on citizen participation. Typically, the processes organised by this unit are a mixture of in-person deliberation and online consultation. During the deliberative process, citizens come together in small groups and are introduced to the topic by experts on the subject matter. On this basis, participants discuss the problem and try to develop suggestions and recommendations. To increase outreach, the BMU organises these events multiple times and at several locations throughout Germany. Alternatively, citizens can provide input through online consultations on the Ministry’s website.
The BMU ensures the inclusion of diverse interests and preferences in their participatory processes by reaching out to randomly dialled telephone numbers and contacts from resident registration offices, thus aiming for a representative group of citizens. Besides selection processes that aim for a representative sample of participating citizens, there are also certain selection processes for which citizens can apply to bring in their expertise. The results of these participation processes are condensed into so-called “citizen recommendations” (“Bürgerratschläge”) addressed to the BMU. The participants stay informed about how their input is being integrated as recommendations into policy papers and strategies through feedback papers. They are also notified in case these recommendations lead to political follow-up processes.
Source: BMU (n.d.[51]), Beteiligung, https://www.bmuv.de/themen/bildung-beteiligung/beteiligung.
Improving standards and procedures for engaging citizens
In its 2021 evaluation, the General Secretariat of the Government identified the need to improve the overall legal and procedural framework for participatory processes and the lack of a uniform application of Law no. 52/2003 as key challenges to rendering participation more effective (Government of Romania, 2021[48]). In this regard, the Civic Space Review of Romania (OECD, 2023[4]) identifies three focus areas to improve standards and procedures for engaging citizens. First, Romania needs to provide more complete and clear communication surrounding public consultations. This includes the provision of information regarding the circumstances, scope and aims of draft acts in accessible language, as also required by Annex 1 of the recently adopted Methodological Norms for the Application of Law no. 52/2003 (adopted through an Annex of Government Decision no. 831/2022). Going beyond the standard form provided in the Methodological Norms, public institutions could also outline the type of information sought and highlight key questions that may be up for debate. Further, Romania could focus on conveying the content in a simpler and user-friendly manner.
Secondly, the Civic Space Review of Romania identifies a need to increase the participation of citizens and non-public stakeholders (and underrepresented groups in particular) in participatory processes. Data collected by the GSG indicates that public debates were attended by less than 10 legal and natural persons in 53.3% of responding public institutions. As a first step, public institutions could be mandated to conduct public meetings and debates in a hybrid format, eliminating challenges related to travelling to the institution's headquarters. Further, there is a perception among CSOs representing vulnerable, discriminated or other excluded groups, notably the Roma community, persons with disabilities and lesbian, gay, bisexual, transgender and intersex (LGBTI) groups, of not having equal access to all ministries or other public authorities Romania could conduct targeted outreach to these groups to involve them in public decision-making (OECD, 2023[4]). Depending on the target group, this could imply adjusting communication accordingly, for example by using all national languages. Romania could consider actively seeking to engage underrepresented groups in discussions on draft laws and policies that affect them. The CONECT platform (https://conect.gov.ro/1/) containing a voluntary register of civil society organisations as well as the national register of NGOs (https://www.just.ro/registrul-national-ong/) can be important tools for public institutions to identify the right institutions to reach out to.
Thirdly, a culture of closing the feedback loop needs to be nurtured in Romanian public institutions. While the Methodological Norms established new requirements and guidance in this regard, ministries’ annual reports on implementing Law no. 52/2003 indicate that only in some cases reasons are provided when recommendations are rejected (OECD, 2023[4]). According to the Government’s own evaluation, only a third of the public authorities surveyed (33%) confirmed that they had a register to record feedback received during public consultations, while the remaining 67% did not (Government of Romania, 2021[48]). In this regard, the interviews conducted with CSOs for the Civic Space Review of Romania found that responsible authorities have sent draft acts to parliament that were modified after consultations were concluded (OECD, 2023[4]).
The recent adoption of the Methodological Norms for the Application of Law no. 52/2003 (through an Annex of Government Decision no. 831/2022) constitutes an important step towards improved application of the legal framework across the Romanian public administration. In addition to clarifying the responsibilities of public institutions and public officials, the Methodological Norms provide further detail on the different steps that are necessary for running a consultation with non-public stakeholders, including by focusing on organising, conducting and recording consultation events. They further provide guidance on communication about consultation proceedings. Notably, they mandate that all public institutions provide feedback to participants and communicate the results of each participatory process they conduct. Overall, Government Decision no. 831/2002 is exhaustive, including seven annexes with templates for public consultation, meeting and debate announcements, for collecting, analysing and providing feedback to input received, and for the contents of annual reports. The proper implementation of these new provisions will be key to improve consultations on draft normative acts. To fulfil the requirements of the Methodological Norms, public officials will have to devote more time and attention to planning and implementing participatory processes.
The OECD Citizen Participation Guidelines (2022) are intended to support the implementation of Provisions 8 and 9 of the OECD Recommendation of the Council on Open Government. They are aimed at any individual or organisation interested in designing, planning, and implementing a citizen participation process. The guidelines walk the reader through ten steps to design, plan, and implement a citizen participation process, and detail eight different methods that can be used to involve citizens in policymaking, illustrated with good practice examples.
The eight participation methods described are:
Their content is based on evidence collected by the OECD over the years and various OECD publications, as well as existing resources from academia and other organisations regarding the intrinsic and instrumental benefits of citizen participation in policymaking.
As part of the document, the OECD suggests eight guiding principles that help ensure the quality of these participatory processes: purpose, accountability, transparency, inclusiveness and accessibility, integrity, privacy, information, and evaluation.
Source: OECD (2022[45]), OECD Guidelines for Citizen Participation Processes, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/f765caf6-en.
Building capacity to improve participatory processes
Involving citizens and stakeholders requires a specific set of skills, such as communication skills. Public officials responsible for implementing participatory practices need to have the knowledge and expertise to successfully design and implement them. However, according to the 2021 GSG evaluation, the government is not yet “equipped with the tools and skills to cope with the expansion and dynamics of Romania's associative environment” (Government of Romania, 2021[48]). According to the Civic Space Review of Romania (OECD, 2023[4]), a lack of understanding of the benefits of participatory processes and the lack of their effectiveness has also led to a general lack of CSO interest in engaging with public officials and, in some cases, mistrust and hostile attitudes between officials and CSO representatives.
In Romania, numerous manuals and guidelines on how to conduct citizen participation are available (see also Chapter 5). For example, the Romanian government has elaborated A Guide to Innovative Approaches to Citizen Engagement in the Decision-making Process, based on a collaboration with the OECD Observatory of Public Sector Innovation (OPSI) (General Secretariat of the Government, 2021[52]) which contains proposals for enhancing citizen participation. However, Interviews conducted for this Review indicate that the uptake of existing guiding material remains limited. Several interviewees from the central and subnational levels were not aware of the existence of these guidelines.
Furthermore, there are currently no trainings for public officials on how to conduct meaningful participation processes. Within the area of interaction with the public, the National Institute for Administration’s (INA) offer is limited to trainings in Social Media; Communication and Public Relations; Communication in Crisis Situations; and Negotiation, and Personal Data Protection (INA, n.d.[53]). The General Secretariat of the Government only provides practical support on the implementation of Law no. 52/2003 but does not run any dedicated trainings. Moving forward, public officials in charge of relations with the associative environment and the implementation of Law no. 52/2003 could receive regular training on how to design and implement participatory processes. These trainings could be designed and delivered by the INA in collaboration with the General Secretariat of the Government. Equipped with additional human and financial resources, as recommended in Chapter 5, the General Secretariat of the Government could move towards becoming a centre of expertise on open government and provide ad-hoc support to public institutions, similar to the Centre of Citizen Participation in France (Box 4.12).
The Inter-Ministerial Directorate for Public Transformation (DITP) is the public institution in charge of the open government and participation agendas in France. In 2019, it created the Centre of Citizen Participation (Centre de la Participation Citoyenne) as a Centre of Expertise, a physical space and a community of practice for all public servants.
A Centre of Expertise: The DITP provides public officials and civil society with technical support and guidance to implement participatory processes. Public officials have access to knowledge resources, examples and templates to organise participatory mechanisms as well as ready-to-use digital tools. As part of this Centre, the DITP has dedicated teams to support the organisation of participatory processes by other public institutions as well as to train public officials and interested stakeholders.
A digital platform for participation: The DITP has established a centralised platform for participatory opportunities at the national level. The platform allows citizens to easily find opportunities and monitor the impact of their participation. It also allows public authorities to provide feedback and communicate about their participatory opportunities in a simple and harmonised platform.
A physical space: The Centre of Citizen Participation is a physical space open to public institutions, civil society and citizens. Public authorities can use this space to organise meetings or any other activity with citizens and stakeholders.
A community of practice: the DITP has put in place a digital hub to group the communities of practice related to open government and State modernisation. With more than 50 communities, the hub allows all public officials to discover and join the communities that interest them, according to topics of interest (participation, digital services, collective intelligence, design thinking etc.) or a geographical area.
Source: Author’s own elaboration based on interviews with the Inter-Ministerial Directorate for Public Transformation (DITP).
Innovating for more effective citizen participation
Many OECD countries have been embracing innovative ways of engaging citizens over recent years by applying mechanisms such as citizens’ assemblies, juries, panels and other representative deliberative processes12 that aim to better understand individuals’ priorities and concerns (OECD, 2020[46]). Evidence shows that these processes have helped public authorities make difficult decisions on a wide range of policy issues, especially those affected by political stalemates (OECD, 2020[46]).
In Romania, public bodies remain hesitant to move beyond established practices and experiment with new participatory methods. According to a GSG evaluation, only 18% of the surveyed public authorities indicated that they had taken steps to implement innovative practices to stimulate participation (Government of Romania, 2021[48]). While innovative participatory processes such as the youth participatory budgeting in Cluj-Napoca or the platform created by the Ministry of Health to measure the satisfaction of patients and compliance with their rights exist, they are often not shared across government.
Moving forward, Romania could consider providing additional incentives for public institutions to innovate. For example, as part of the Open Government Award that is suggested in Chapter 5, Romania could reward institutions that have conducted innovative participatory processes. In this regard, an example from civil society in Romania is the Resource Centre for Public Participation’s Public Participation Awards Gala which highlights “the most interesting advocacy or public consultation initiatives” (CeRe, n.d.[54]). An international example is the yearly competition “Excellent! – Competition for exemplary citizen participation” (Ausgezeichnet! – Wettbewerb für vorbildliche Bürgerbeteiligung) that is run by the German Federal Ministry for Environment. Other incentives for public officials to innovate could stem from making open government and innovation part of public officials’ hiring and career development criteria, for example through appropriate competency frameworks (see also Chapter 5 and the forthcoming OECD Innovation Scan of Romania).
Romania could further use its next OGP action plan to add commitments related to innovative participatory practices (e.g. a citizen assembly on a societal issue or future planning). To financially support innovation, Romania could also establish a pilot programme that provides seed funding for innovative approaches, such as deliberative assemblies and co-creation. Lastly, to enable peer learning among public institutions, Romania could establish a sub-group on citizen and stakeholder participation as part of the recommended cross-governmental community of practice on open government (see Chapter 5).
There are two elements that make representative deliberative processes quite from other methods of citizen participation.
Random selection of participants through a civic lottery. To be able to organise deep and substantial deliberation, the group of citizens participating in it must be relatively small, usually ranging from 15 to 100 participants. Randomly selecting citizens, stratified based on criteria such as age, gender, location, and socio-economic background, has the benefit of capturing the diversity of views, perspectives, and lived experiences of different members of society and ensuring broad representativeness of that community. Even though it is a smaller group of participants than some other participatory processes, it is designed to ensure inclusiveness and capture the views of those harder-to-reach communities and voices. See more details about this recruitment method in the Civic lottery section of these Guidelines.
Deliberation. Deliberation involves dialogue and debate, but also implies a careful consideration of a range of different arguments and opinions in a respectful way. It requires accurate and relevant information and adequate time, so that those deliberating can go into the core of the issue and find common ground
Source: OECD (2020[46]), Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave, OECD Publishing, Paris, https://doi.org/10.1787/339306da-en.
Facilitate citizen participation through an updated online platform
Many OECD countries have established dedicated platforms for citizen and stakeholder participation in recent years (OECD, 2021[8]). The use of digital platforms for participation can lead to higher levels of involvement and can be an efficient way to receive and process a high amount of citizen inputs in a systematic manner.
In Romania, information about proposed legislation and other significant policy issues has traditionally been disseminated through institution-specific portals, i.e. the websites of individual ministries and other public institutions (see also Table 6.3 in Civic Space Review of Romania (OECD, 2023[4])). In 2016, the Romanian government created a new online consultation platform called E-Consultare (http://e-consultare.gov.ro/), which was re-launched in a new version in 2019 (for an overview of all relevant online platforms, please see Chapter 5). The platform contains data on draft acts initiated by ministries and other public institutions at the central level and it includes a contact form for citizens and stakeholders to provide inputs. Between March 2019 and January 2023, 7 325 draft normative acts were published through the E-Consultare platform, 72 of which were discussed in public debates. Moreover, 1 041 suggestions or proposals were submitted via the platform (General Secretariat of the Government, 2023[55]).
However, according to the government, the platform still suffers from a non-uniform use by public institutions as the announcement of consultation opportunities has long been not mandatory (General Secretariat of the Government, 2021[56]). The website itself currently has very limited functionalities. While relevant albeit limited information is being provided, the participation itself is only possible by sending suggestions via a contact form. There is no opportunity to interact with the draft act directly or to see other participants’ input. Moreover, as the website is updated manually by the General Secretariat of the Government, there is a risk of inaccurate information. To counter these challenges and to facilitate online participation, the GSG is aiming to improve the technical functionalities of the platform to transform it into a “one-stop” portal for citizen and stakeholder participation at the level of the central government. This would entail using E-Consultare as the main platform to run digital consultations on draft normative acts (Government of Romania, 2022[9]).
With the adoption of Government Decision no. 831/2002, initial steps in this regard were made through the introduction of legal requirements for public institutions to use the platform. As of June 2022, all public institutions under the scope of Law no. 52/2003 have to publish the announcement on the planned elaboration of a draft normative act as well as an announcement related to public meetings on the platform (Article 6 of Government Decision no. 831/2022). Additionally, all public institutions have to upload their annual reports on the implementation of Law no. 52/2003 to the platform by April 30 each year (Art. 11). Furthermore, the platform will evolve to include information on the implementation of legislation on access to information by also publishing public institutions’ annual reports on Law no. 544/2001 (Art. I and III, Government Decision no. 830), thereby making it a central place to consult information on the implementation of the most relevant legislation on transparency and participation in Romania. The technical implementation of these provisions is still ongoing. Additional planned modifications include the possibility for individual public bodies to upload draft acts subject to consultation, thus eliminating the current practice of General Secretariat staff adding the information (Government of Romania, 2022[9]).
Romania’s move towards a “one-stop” shop participation portal has the potential to harmonise practices among public institutions, facilitate more interactions with citizens and stakeholders, and simplify access to participatory opportunities. However, the Civic Space Review of Romania (OECD, 2023[4]) finds that most public and non-public stakeholders are not yet familiar with the platform. To raise awareness, the government could mandate the inclusion of links to the E-consultare platform on all institutional websites. These efforts should be complemented by guidance on how to operate and use the platform, for example through a manual for public officials on how to use the platform as well as by dedicated human, financial and technical resources.
Moreover, the technical implementation of the GSG’s ambitious plans to upgrade the E-Consultare platform will be crucial and will require adequate financial and human resources also for the continuous maintenance of the platform. When implementing reforms to improve the portal, Romania could engage with users from the public and non-public spheres to ensure that the platform meets their demands. In addition, it could take inspiration from already existing websites which have proven to be impactful, such as the city of Madrid’s Decide Madrid platform. The corresponding software is offered through the CONSUL project as open source (Box 4.14) and is already being used by some Romanian municipalities, for example in Timișoara (Townhall of Timisoara, n.d.[57]).
Finally, the integration of information on the implementation of Law no. 544/2001 on free access to information already hints towards a more comprehensive use of this platform beyond participation. In the medium term, E-consultare could become the central platform to also exercise the right of access to information and the right to petition, thereby making it the first central-level platform integrating all essential open government areas online in one place. As further discussed in Chapter 5, this “open government portal” could help in mapping and navigating to other, already existing central portals in related areas, such as RUTI on lobbying activities and SEAP on public procurement.
Following the decline of trust in public institutions propelled by a series of corruption scandals in Spain, the Madrid City Council developed the CONSUL software and launched it in Madrid under the name Decide Madrid in 2015. Decide Madrid is the official open governance platform serving as a one-stop shop for all official open governance processes in the municipality, including issues of transparency, open data and participation. The platform has many distinct areas for participation – namely, through its features providing spaces for debates, citizen proposals and participatory budgeting.
The platform follows a very user-friendly approach, notably through its citizen proposals module by submitting, supporting and voting initiatives. Decide Madrid allows citizens to propose new local laws through a simple questionnaire. Subsequently, other local residents (aged 16+) are able to support their favourite proposals and prioritise the most interesting and relevant proposals. Proposals that receive support from at least 1% of the population are sent to the final voting phase. Finally, registered users can contribute to the debate on the select initiatives, vote for or against motions and provide additional comments.
Other channels of participation in the platform include:
Consultations: The government may submit important issues to consultations, as it has been the case in Madrid for the redevelopment of the main square of the city, building a pedestrian-friendly space on the main road or the redevelopment of 10 different squares of the city.
Crowd-law: All the main regulations are published on the platform. Citizens can select sentences or paragraphs and make comments, as well as to support other comments.
Participatory budgeting: Each year citizens of Madrid decide how to spend a part of the municipal budget. Citizens propose, select and vote on the most interesting projects.
Debates: There is an open space for citizen debates, where citizens create and prioritise the most interesting issues, defining their own city agenda. This is used as a space for citizen engagement and community building, as well as for citizen interviews with politicians.
The platform benefits from its open-source code, making it free for any government, or CSO, to make use of it and propose improvements. As of now, the software is being used in 35 countries by 135 institutions and serving 90 million citizens.
Source: OECD (2015[58]), Consul Project; Decide Madrid (2022[59]), Descubre la plataforma de participación ciudadana del Ayuntamiento de Madrid; Consul Democracy (n.d.[60]), Consul Democracy website.
Ensuring the appropriate use of fast-track procedures
According to Article 115 of the Romanian Constitution, the government may adopt emergency ordinances only in extraordinary circumstances, where regulation cannot be postponed and needs to motivate the urgency in their content. Law no. 52/2003 allows public institutions to adopt a draft act using a fast-track procedure without the need for public consultation if there is an emergency or exceptional circumstances which require immediate solutions. In practice, the number of such ordinances passed per year in Romania (around 100) indicates that this provision is interpreted quite broadly (Venice Commission, 2019[61]). In 2022, the Romanian government adopted 192 emergency ordinances which constitute 10.7% of normative acts that can be issued directly by the executive13. This includes also controversial laws, such as Emergency Ordinance no. 16/2022 amending Law no. 52/2003 which specified that due to security challenges the government can pass laws or ordinances through urgent procedures without parliamentary oversight and public consultations (see also the Civic Space Review of Romania (OECD, 2023[4])). This can have detrimental effects on the quality of legislation, separation of powers, and legal certainty (Venice Commission, 2019[61]), especially in light of not all draft emergency ordinances presenting substantiated reasons to justify extraordinary situations (European Commission, 2022[28]).
In a positive development to remedy these effects, Annex 6 of Decision no. 1 173/2022 on government procedures for the elaboration, approval and presentation of draft normative acts and public documents clarifies the circumstances in which emergency ordinances may be adopted, the manner in which their impact will be assessed, and the procedures for their preparation and approval, based on existing legislation and the case law of the Constitutional Court. As such, it presents important guidance on what the legislative framework requires, including through its application by the Constitutional Court, and may improve the practice.
Emergency situations may require fast-track procedures that omit consultation procedures. However, Romania continues to lack a clear definition of what an emergency constitutes (OECD, 2023[4]). Consequently, Romania could envisage further reforms to foster parliamentary oversight and ensure that stakeholder and citizen consultation remain the norm. This could include defining more narrow criteria for instances where the use of emergency ordinances is legitimate, by including criteria in both the Constitution and Law no. 52/2003. As a mechanism to facilitate implementation, this could also involve establishing a crisis protocol that defines priorities in the case of an emergency and steps to be taken.
Citizens’ ability to see, understand and monitor the decisions and actions of the government and their ability to actively contribute to them lies at the heart of the concept of open government. In Romania, since 1991, a great number of laws and regulations on open government principles, policies and practices have been adopted. Most notably, Law no. 544/2001 on free access to information of public interest and Law no. 52/2003 on decisional transparency in public administration have a long history of implementation that has led to some positive outcomes, as further discussed above.
The forthcoming creation of Romania’s first Open Government Strategy provides a unique momentum for Romania to renew the government’s relationship with citizens and civil society stakeholders and put an even greater emphasis on the implementation and enforcement of measures that aim to inform non-public stakeholders and engage with them. Putting the open government principles at the centre of all government actions and decisions will ultimately enable Romania to make Romania’s democracy more robust and foster citizens’ trust in the institutions of the State.
1. Make additional efforts to increase citizens‘ ability to see, understand and monitor the decisions and activities of government. Foster the proactive disclosure of information by focusing on increasing compliance with the requirements laid out in Government Decision no. 830/2022 concerning the types of information to be disclosed, as well as their accessibility and reusability.
Pay particular attention to potentially sensitive information, such as those relating to institutional performance, budgeting, and procurement.
Proactively disclose the most frequently requested information, such as those related to the use of public funds and the way the institution's duties are fulfilled.
2. Enhance the reactive disclosure of information.
Legally ensure the anonymity of requesters and only request them to provide the minimum amount of information needed.
Increase the efficiency and effectiveness of the ATI request process.
Improve the timeliness of responses to access to information.
Specify more concretely and/or more narrowly the conditions for applying the extended response deadline.
Explore the usage of digital tools that can support implementation, such as digital register of documents for improved information management.
Ensure the consistent application of appropriate deadlines through better institutional oversight and enforcement.
Establish a protocol for access to information in times of crisis.
Make appropriate use of exemptions to disclosing information.
Make the justifications for denying access to information more concrete by revising the standard response form for an access to information request provided in Annex 7 of the Methodological Norms of February 7, 2002, on the application of Law no. 544/2001 regarding free access to information of public interest (Government Decision no. 123/2002).
Review Law no. 544/2001 to complement existing appeal processes with an external appeal process to resolve conflicts concerning withheld information. In order to make this process effective, ensure that:
3. Increase the effective implementation of legal provisions on proactive and reactive disclosure of information.
Foster the inclusiveness of the ATI process.
Complement the websites of Romanian public institutions and authorities with guidance on the ATI process to inform citizens about their rights in easy language.
Compile guidance for public officials on how to write in plain language when disclosing information and communicating with citizens.
Disclose essential government information at the central level in the most common minority languages, such as Hungarian and Romani.
Dedicate additional resources to help public officials in designing websites in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0.
Improve monitoring and evaluation of access to information (see also Chapter 7).
Make it mandatory to collect data and information on reactive disclosure. This could include topics that are frequently requested as well as how and where the published information is used.
Regularly consult with the users of proactively disclosed information to gather their feedback, improve disclosure, and make it more meaningful for civil society.
Establish a dedicated ATI oversight body to ensure supervision, monitoring and evaluation of the ATI law.
Ensure that the oversight body has a clear mandate, sustained resources and capacity, an adequate level of independence, and enforcement capacity.
The oversight body’s mandate could include verifying that the requirement for justifications in case of denied requests and for legal response deadlines are applied correctly.
Empower public officials responsible for ATI.
Dedicate increased human resources to the ATI portfolio in public institutions.
Provide a digital tool that facilitates the management of ATI requests and the publication of information for ATI officers. For example, a website on ATI could provide an interface designated for public officials.
Establish a network of specialists on transparency among public institutions, for example based on the network of public officials on open data.
Increase the amount of trainings offered on ATI by the GSG and the National Institute for Public Administration. Among others, these could cover which metrics to consider and which data to collect to monitor and evaluate ATI processes.
4. Enable and empower citizens and stakeholders to take part in and contribute to the activities and decisions of the government. Apply a more impactful set of participatory mechanisms at all stages of the policy cycle.
Foster participation early in the policy cycle by consistently and strategically involving citizens and non-public stakeholders in the decision on available policy solutions to public challenges.
Adapt participatory processes, including type, format and communication, to the concrete policy question(s) at hand and to the main target audience in order to obtain more pertinent inputs.
Revise Article 7(9) of Law no. 52/2003 or Art. 7(1) of the corresponding Methodological Norms to broaden the scope of actors that can request a public debate, including individual citizens or groups of them.
5. Improve standards and procedures for involving citizens.
Put a focus on implementing the requirements set out by Government Decision no. 831/2022:
Provide more complete and clear communication surrounding public consultations, such as information regarding the circumstances, scope and aims of draft acts in accessible language.
Ensure that all public institutions provide feedback to participants and communicate the results of each participatory process they conduct (as mandated by GD no. 831).
Consider holding public debates and meetings online or in hybrid mode to allow as many interested parties as possible to participate and live stream them on the institutional website and/or social media platforms.
Put a specific focus on involving citizens (vs. organised stakeholders) in policy processes
Built confidence and competence of public officials to understand the benefits of regular and consistent public participation Raise awareness among public officials about existing guidance (e.g. the Guide to Innovative Approaches to Citizen Engagement in the Decision-making Process) to increase its uptake.
Organise regular trainings for relevant public officials on how to design and implement participatory processes. These trainings could be designed and delivered by the National Institute of Administration in collaboration with the General Secretariat of the Government.
6. Shift the focus from formal written consultation to more participative engagement practices by fostering innovation and experimentation with new participatory methods and practices (e.g. representative deliberative processes, hackathons, participatory budgeting, etc.).
Organise an Open Government Award (see Chapter 5) to provide additional incentives for public officials to be innovative.
Use a commitment in an upcoming OGP action plan to design and implement an innovative participatory practice (e.g. deliberation) to provide an example and inspiration for future processes.
Establish a pilot programme for innovative approaches that provides seed funding and assistance for public institutions that wish to experiment with participatory processes.
Establish a sub-group on citizen and stakeholder participation as part of the recommended cross-governmental community of practice on open government (see Chapter 5).
7. Update the E-Consultare platform to facilitate increased citizen participation.
Continue the transformation of the E-Consultare platform into a “one-stop” portal for citizen and stakeholder participation.
Embed the E-Consultare platform more into institutional websites and provide support and guidance to all relevant stakeholders to enhance the dissemination and mainstreaming of the platform.
Further extend the functionalities of the E-Consultare platform to make it a fully-fledged Open Government Portal (“Open Government Portal”) (see also Chapter 5).
8. Ensure the appropriate use of fast-track legislative procedures.
References
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Notes
← 1. This Review looks at information on Government only. Challenges related to the transparency of other institutions in the Romanian democracy, in particular financing of political parties and media ownership, are discussed elsewhere (European Commission, 2022[28]; OECD, 2022[7]).
← 2. For more information, including methodology, see also chapter 7 on monitoring and evaluation.
← 3. The law specifies for certain kinds of information how often it needs to be updated. For example, information on the budget execution needs to be updated monthly while information on public procurement contracts above EUR 5 000 should be updated quarterly (Annex 1, Methodological Norms). Further, there is an annual revision of the information in the information bulletin required by Art. 5(2), Law no. 544/2001. For all information, the date of last update needs to be displayed (Art. 26 of Methodological Norms (2002)).
← 4. Among them are: Art. 5(1), Law no. 544/2001, Government Decision no. 1 269/2021 on the approval of the National Anti-Corruption Strategy 2021-2025 and its related documents; Government Decision no. 901/2015 on the approval of the National Strategy in the field of public procurement; Government Emergency Ordinance no. 34/2006 on the award of public procurement contracts, public works concession contracts and service concession contracts.
← 5. A summary of self-reported data by public authorities states that 75.05% of them have published at least some information in open data format in 2020 (General Secretariat of the Government, 2021[17]), but it remains unclear to what extent.
← 6. Most frequently (39.9% of rejected requests), the requests are denied for other reasons. These include besides obvious reasons for refusal, such as insults, those requests that cannot be understood, those concerning general questions, those asking for the opinion of the institution or the leader regarding various topical issues, among others (Government of Romania, 2022[9]). With the adoption of GD 830/2022, many of these requests will be treated as petitions, implying that the requester will receive a more elaborate answer than the notification of rejection.
← 7. Nonetheless, certain public institutions have started putting a focus on accessible language. For example, the National Institute of Statistics’ communication strategy states that "[i]n an increasingly technological era, any national asset, such as the case of official statistics, must be adapted to a language accessible to all environments interested" (INSSE, 2018[62]).
← 8. Defined as an initial level of participation characterised by a one-way relationship in which the government produces and delivers information to the public. It covers both on-demand provision of information and “proactive” measures by the government to disseminate information (OECD, 2017[3]).
← 9. Defined as “a more advanced level of participation that entails a two-way relationship in which stakeholders provide feedback to the government and vice-versa. It is based on the prior definition of the issue for which views are being sought and requires the provision of relevant information, in addition to feedback on the outcomes of the process” (OECD, 2017[3]).
← 10. Defined as “when stakeholders are given the opportunity and the necessary resources (e.g. information, data and digital tools) to collaborate during all phases of the policy-cycle and in the service design and delivery” (OECD, 2017[3]).
← 11. The focus here lays on the central government level. Additional forms of participation, such as periodic meetings with citizens at local level as required by the Administrative Code, are beyond the scope of this Review.
← 12. A representative deliberative process is a process in which a broadly representative body of people weighs evidence, deliberates to find common ground, and develops detailed recommendations on policy issues for public authorities (OECD, 2020[46]). Common examples of one-off processes are citizens’ assemblies, juries, and panels.
← 13. According to Article 108 of the Romanian Constitution and Article 37 of GEO no. 57/2019 on the Administrative Code, the Government adopts decisions, ordinances and emergency ordinances. In 2022, the Romanian Government adopted: 1556 decisions, 37 ordinances and 192 emergency ordinances. In 2022, the Romanian Parliament passed 385 laws. The share of emergency ordinances among all normative acts – including laws passed by Parliament – was 8.6% in 2022.