A public authority filed petition No. 130-037-43/2014-02 with the Commissioner for Information of Public Importance and Personal Data Protection on 10 March 2014, in which it requested his opinion about an authority's option to invoke abuse of rights in connection with a particular freedom of information request filed by a citizens' association, requesting a report showing whether the budget funds, which this authority transferred to the Public Water Management Enterprise "Vode Vojvodine" and the Public Enterprise "Vojvodinasume", were used for their intended purpose, with supporting documents. The authority explained that the requester frequently addresses this authority, having filed 48 requests in 2013 and already 14 requests since the beginning of 2014, that several of employees were working full time just to reply to those requests and that the authority did not know whether the president of the Association used the information provided.
In that regard, the Commissioner sent the following notification to the public authority:
"As you stated in your letter, you are familiar with the fact that the Commissioner provides his opinion on the lawfulness of decisions or actions of first-instance authorities pursuant to complaints in individual cases, on the basis of relevant facts and circumstances, including in particular evidence presented by the first-instance authority, and he will do so in this case if and when a complaint is lodged. Thus, in order not to prejudice the outcome pursuant to a possible complaint in the case you presented in your letter, we will present only an opinion in principle regarding the institute of abuse of the freedom of information.
The Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/04, 54/07, 104/09 and 36/10) provides for several exemptions from the right of free access to information of public importance and none of these exemptions, including abuse of the right, are absolute by their nature; instead, evaluation of the prevailing interest is required in accordance with Article 8 of this Law. In accordance with Article 16, paragraph 10 of this Law, a first-instance authority has the legitimate right to pass a decision denying access to information, with explanation of such decision and a statement of available remedies, if it finds that the requirements for doing so in accordance with the law are met. As regards abuse of the right, the Commissioner would like to point out the following:
The institute of abuse of the right under Article 13 of the Law is interpreted very restrictively. Abuse of the right refers to situations when a request is unspecified and obviously unreasonable and complying with the request would impose an unacceptably heavy burden on the authority, disproportionate to the interest of the public to know, where the public authority has to make extra effort to reply to the request to an extent and in a manner that would not interfere with the normal functioning of that authority, or situations where a request is filed repeatedly for information already received or made available. Of course, the authority concerned must be capable of demonstrating this in the event of a complaint or initiation of an administrative procedure.
The volume of requested information is in itself not a sufficient reason to treat a request for information as abuse, especially when documents are available electronically and when such information relates to payments from the budget and management of public funds. In addition, the frequency with which requests are filed does not in itself constitute abuse of the right, except in cases where requests are obviously unreasonable, too vague or require disproportionately huge effort to find the requested information or where the same requests are filed repeatedly in a way which interferes with the normal functioning of an authority.
This opinion is also supported by relevant international documents and accepted standards in the field of freedom of information and freedom of access to official documents, as well as the underlying concept of the Serbian law on access to information, according to which the freedom of information is the rule, while any limitations are strictly exceptions, it being understood that the onus is on the public authority acting pursuant to a request to demonstrate the justifiability of imposing any such limitations.
The Commissioner would also like to point out that the fact a public authority receives numerous freedom of information requests often tends to be an indication that the authority in question needs to take a more active role by publishing as many pieces of information concerning its operations as possible on its official website even without specific requests.
Number: 011-00-00264/2014-02 of 17 March 2014
