Notes & positions

CALL of the civil society organizations for the declassification of the information on authors of the decisions issued by NASC

2019.07.09 Achiziții publice Victor Ursu Print version

Beginning with March 18, 2019, the decisions issued by and published on the NASC page no longer contain the names of the members of the panel who directly participated in the settlement of the appeal and in the decision-making. Coincidentally or not, the names of the members of the panel were taken out of the published decisions two days after the publication of the AGER piece with regard to the failure to solve the appeal in the case of the bus purchase. In that piece it was revealed that one of the members of the panel participated both in the settlement of the 2019 appeal (yet only by returning it without further examination, and thereby accepting the exception invoked by the Urban Bus Park), and in solving a previous appeal, in a procedure with both the same contracting authority and object (but in this case the complaint had been examined and the procurement procedure canceled). It was therefore perceived that NASC decisions lack uniformity, thus raising doubts about their substantiation and legality.

In order to avoid such "incidents" in the future, NASC decided to remove the names of the members and their signatures from the decisions and, therefore, made it much more difficult to follow the consistency of NASC decisions.

According to the Parliament Decision no. 271 of 15.12.2016 on the establishment, organization, and functioning of the National Agency for Solving Complaints (paragraph 38): "The composition of the working panels for the settlement of appeals, including the presidents, shall be approved by order of the General Director of the Agency for a period of maximum 12 months. The same composition of the panel, including the chairman, can be kept for up to 2 consecutive periods." At this time, no information on the composition of the working panels can be found on the NASC page, as no such orders as mentioned above are currently published under the heading "Decisions and Orders".

Upon the request for clarification with regard to the reasons for the decision to remove the names of the working panels' members, NASC's response was as follows:

"According to the Personal Data Protection Law no. 133 of 08.07.2011, any information relating to an identified or identifiable individual (subject of personal data) is considered to be personal data. An identifiable person is a person who can be identified, directly or indirectly, by reference to an identification number or to one or more elements specific to his or her physical, physiological, psychological, economic, cultural or social identities;

Therefore, the absence of the name and signature on the decisions published on the Agency's website is not an error, but rather it is meant to ensure the the depersonalization of personal data, which according to the same law is done through the modification of the personal data so that the details regarding personal or material circumstances no longer can be to be assigned to an identified or identifiable natural person, or that this could be done, but only under the conditions of an investigation requiring disproportionate expenditure of time, resources and labor. At the same time, the parties and participants in the complaint solving process have authentic copies of the decision with handwritten signatures."

In this situation, AGER sent a letter requesting the opinion of the specialists of the National Center for Personal Data Protection. The full answer is attached, but we will highlight the following:

"Point 72 (of Parliament's Decision No. 271 of 15 December 2016) stipulates that appeals decisions are to be published on the Agency's website within 3 days of the date on which they are pronounced, without specifying the need to depersonalize certain categories of data including names and forenames of the President and of the members of the decision-making panels.

 

[...] On the basis of the provisions laid down above, the Agency's councilors are public figures, and some information related to the public dignity (eg name, surname, place of work, etc.) is public.

[...] At the same time, it should be noted that, even according to the ECHR's reasoning, public figures have to accept interferences in their private lives to a greater extent than ordinary people, and that the more important the public figure and the researched information, the more accessible for public scrutiny they should be. Thus, although some information about the employee's actions/decisions at his place of work may constitute personal data, taking into account the need to ensure a certain transparency and accountability regime ... he must be aware from the outset that certain personal data belonging to him may be disclosed to third parties.

Last but not least, reference is made to point 4 of the Regulation 2016/679 of the European Parliament and of the Council adopted on 27 April 2016 with regard to the protection of individuals concerning the processing of personal data, and on the free movement of such data, as well as on repealing Directive 95/46/EC. It states that the processing of personal data should be done in the service of the citizens. The right to the protection of personal data is not an absolute right; it must be taken into account in relation to the function it performs in society and in balance with other fundamental rights, and in accordance with the principle of proportionality."

Thus, the National Center for Personal Data Protection concludes that "apparently, from the described circumstances, and in conjunction with the legal provisions mentioned above,  the names and surnames of the presidents and members of the complaint solving panels should not be depersonalized."

Therefore, it can not be accepted that public figures, who should take full responsibility for the decisions they make, would hide their names, thus demonstrating just the opposite, which is a lack of accountability in public affairs.

In conclusion, we strongly ask the National Agency for Solving Complaints to give up the practice of hiding the names of the complaint solving panels, and to:

1) Publish the NASC decisions containing the names of the counselors who participated in the decision-making process;

2) Publish on its web page the Order of the General Director of NASC regarding the composition of these complaint solving panels.

 

Signatories

Asociația pentru Guvernare Eficientă și Responsabilă (AGER)

Comunitatea WatchDog.md

Centrul de Resurse Juridice din Moldova

Institutul pentru Inițiative Strategice

AO ADR „Habitat”

Centrul de Investigații Jurnalistice

Institutul pentru Politici Publice

Fundația Est-Europeană

Expert-Grup

Promo-LEX

Asociația Presei Independente

IDIS Viitorul

Asociația pentru Democratie Participativa (ADEPT)

Amnesty International Moldova

A.O. „Părinți Solidari”

Centrul de Politici și Reforme din Moldova

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