TI BiH: Court confirms unlawful withholding of Marijin Dvor-Ilidza tramway reconstruction data

TI BiH requested from the Ministry access to the Contract on the Reconstruction of the Marijin Dvor-Ilidza tram line, all annexes to the contract, as well as access to the bids submitted by two Chinese companies, China Shandong International Economics and Technical Cooperation Group Ltd. and China Railway No. 10 Engineering Group, whose joint bid was assessed as the most advantageous.

The request was rejected, prompting TI BiH to file a lawsuit with the Sarajevo Cantonal Court.

The court found that the Ministry had refused to provide the requested information solely based on the contractor's statement that it did not consent to the publication of the contract, without conducting the public interest test required under the Freedom of Access to Information Act.

The ruling emphasized that the Ministry had failed to consider whether the matter was of significance only to the investor or also served the interests of the community, which it was required to do given that the project is financed with public funds and is undoubtedly of importance to the citizens of Sarajevo Canton.

In the proceedings, the Ministry argued that the contract contained information such as bills of quantities and calculations of works, prices of materials and installations, and other data that competitors could misuse and thereby jeopardize the commercial interests of the Chinese companies selected as contractors.

The court, however, concluded that such an explanation was insufficient, stressing that a public authority cannot deny access to information solely by citing the objection of a third party. Instead, it must determine in each individual case whether there is an overriding public interest in disclosing the requested information.

The reconstruction of the Marijin Dvor-Ilidza tram line is one of the largest infrastructure projects in Sarajevo Canton and was presented as a historic modernization project after more than 60 years, TI BiH said.

TI BiH noted that the media had reported that China Railway No. 10 Engineering Group had faced issues with the World Bank over irregularities in tender procedures for projects in Africa, and that companies linked to it had participated in projects that were followed by serious incidents.

"These circumstances further confirm the legitimate public interest in having full access to the contract, its amendments and the bid based on which the consortium was awarded the contract," the statement said.

All these circumstances, particularly the fact that the reconstruction is being financed with public funds, clearly point to an indisputable public interest in having access to contracts and other information concerning the implementation of the project.

Despite this, the practice of denying access to contracts related to major infrastructure projects is becoming increasingly common in Bosnia and Herzegovina, with institutions often citing the protection of the commercial interests of private, particularly foreign, companies, placing their interests above citizens' right to know how and under what conditions public money is being spent.

According to TI BiH, one of the most significant examples concerns the Ministry of Transport and Communications of Republika Srpska, which has for years refused to disclose the financial model of the contract for the construction of the Prijedor-Banja Luka motorway, also citing the protection of the commercial interests of a Chinese company involved in the project.

In that case as well, courts found that institutions cannot automatically place the interests of private companies above the public interest and citizens' right of access to information.

"This ruling once again confirms that the interests of private companies cannot automatically be placed above the public's right to know how public money is being spent. TI BiH expects the Sarajevo Canton Ministry of Transport to comply with the ruling and publish the Contract on the Reconstruction of the Marijin Dvor-Ilidza tram line, all its annexes, as well as the bid submitted by the Chinese consortium with which the contract was signed," TI BiH said.