Official requests for incinerators – institutions jointly violate the law on the right to information

In September 2022, Faktoje decided to verify and inquire into the procedure for awarding a concessionary contract for the construction of Tirana incinerator . The reason is related to the high cost of public money provided for the incinerator, but also to the great public attention it received following after denunciations from civil society, the media and the opposition. However, the standard procedure of seeking official information from state institutions, which according to the law lasts a maximum of two calendar weeks, ended in a ‘Ping-Pong’ ordeal that has not ended even though 5 months have passed. Part of this ping-pong of responsibilities between state institutions, the office of the Commissioner for the Right to Information became the “guardian” of the right to information.

Jona Plumbi

In December 2022, Faktoje published an investigative article on Tirana incinerator. The article entitled “Who is behind the incinerator of Tirana”, proved the violation of the law on Public Procurement by the company selected for the construction of the incinerator, Integrated Energy BV. Based on this finding, Faktoje asked the responsible state institutions, the Ministry of Finance and the Ministry of Infrastructure, if they were aware of this violation of the law.

The question remains unanswered even today.

Two requests for information

The request for information was initiated by Faktoje on September 23, 2022. A request was addressed to the Ministry of Finance, as the authority responsible for granting or not granting permission for changing the shareholders of these companies. A second request was also sent to the Ministry of Infrastructure as the authority responsible for ensuring the implementation of the contract between the Albanian state and the company Integrated Energy BV.

The law on concession contracts (Article 32), states that companies that have been created solely for the implementation of the concession contract (such as the case of the company Integrated Energy BV), then the sale of its shares requires the prior approval of the Contracting Authority (Ministry of Infrastructure and Energy) and the Ministry of Finance.

Ministry of Economy and Finance

The Ministry of Economy and Finance, after receiving Faktoje’s request, noted that the requested information on the shareholders of the company that won the Tirana incinerator tender was not available to them, so on September 26, it forwarded the request to the Ministry of Infrastructure.

With the law on its side, on October 14, 2022, Faktoje appealed the response received from the Ministry of Finance, emphasizing once again the content of Article 32 of the law on concession contracts, which obliges the Ministry of Finance to possess such information.

On October 27, the Ministry of Finance decided once again to ignore that part of the law which, in addition to the contracting authority, gives the Ministry of Finance the power to grant permits for  changes to the shareholders of the company contracted for doing public works. So, once again it replied the same was.

During this correspondence, the role of the Commissioner for the Right to Information was equal to that of a notary, who stamps every response initiated by the state institution. This is in violation of the obligation arising from the law on the right to information , which obliges the Commissioner to evaluate the facts and the legal basis of the complaint.

In the absence of a functioning process by the Commissioner for the Right to Information and after receiving the same reply from the Ministry of Finances twice, Faktoje withdrew its appeal on October 31, more than a month after sending the request for information.

However, the violation of the law on the right to information continued in another ministry, that of Infrastructure.

Ministry of Infrastructure and Energy

The Ministry of Infrastructure, unlike the Ministry of Economy, chose to completely ignore the request for information sent by Faktoje on September 23, 2022. With the ministry not replying, Faktoje filed a complaint to the Commissioner for the Right to Information on October 14, in accordance with the law on the right to information.

It took the Ministry of Infrastructure two full calendar weeks to give the Commissioner’s complaint a rather surprising response. The Ministry asked for understanding for the delay in the information since ” the director who is handling this request is outside the territory of the Republic of Albania” .

Given the lack of a legal provision for such a situation, Faktoje asked the ministry to inform us about the time it needed to respond. The ministry did not respond.

As the authority responsible for the implementation of the law on the right to information, Faktoje asked the Commissioner for the Right to Information on how to proceed with this procedure. Unfortunately, the office of the commissioner for the right to information also requested Faktoje’s understanding for the delay in the response from the Ministry of Infrastructure, as well as the time needed to receive the requested response.

Left without institutional support, Faktoje decided to wait.

Two and a half months later, the Ministry of Infrastructure returned an answer which does not answer the question, informing Faktoje that “ since 2018, when the Ministry of Infrastructure became the responsible authority for the implementation of the concession contract for  Tirana incinerator, the Integrated Energy BV company has not provided any information on the transfer of the company shares “.

To make the situation even more comical, the Ministry of Infrastructure in its response suggests to Faktoje to ask the National Business Centre whether there had been any changes of the contracted shareholders, although the question the Ministry was asked was whether the Ministry was aware of any changes of the shares, already identified by Faktoje.

The Commissioner for the Right to Information does not lack irony either. With this answer, the Commissioner considered the process of review of our complaint to the Ministry of Infrastructure completed, without evaluating the facts and the legal basis of the complaint. To Faktoje’s knowledge, none of these two institutions have been fined for refusing to provide information.

The conclusion?

Obtaining official information from state institutions often becomes impossible because the institution responsible for enforcing the law or for imposing fines on institutions that do not provide official information, does not exercise its power according to the legal obligation. Such lack of accountability and failure to provide information according to the law, discourages journalists and even more so the citizens, from sending official requests and receiving public information they are entitled by law.