One magistrates' court submitted a petition to the Commissioner for Information of Public Importance and Personal Data Protection in which it expressed its disagreement with the Commissioner's opinion published in the Publication No. 3 "Free Access to Information – Commissioner's Attitudes and Opinions" http://www.poverenik.rs/images/stories/dokumentacija-nova/prirucnik/3.publikacija/publikacijaiii.pdf,

which states that in matters of on free access to information of public importance "the existing legislative provisions do not require from a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings in the capacity of the wronged party, but this does not exclude an option of the trial court to ask the Commissioner's opinion if necessary."

With this in mind, the court demanded an answer to the following question:

"Which existing legislative provisions do not require from a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings in the capacity of the wronged party?" It also expressed an opinion contrary to the stand taken by the Commissioner.

In his reply to the court, the Commissioner inter alia stated the following:

Since the Commissioner's decisions, just as the decisions and opinions of magistrates' courts, are subject to judicial review in relevant proceedings and the merits of the arguments presented in those decisions are reviewed in those proceedings, the Commissioner would like to refrain from discussing the merits of the obviously opposed opinions, since it is not unlawful for authorities to disagree in their interpretations of the law. An answer is provided to the question addressed directly to the Commissioner.

According to Article 179, paragraph 1 of the Law on Misdemeanours ("Official Gazette of RS", No. 65/13), a petition for initiation of infringement proceedings is filed by the competent authority or by the wronged party.

According to Article 180, paragraph 1 of the Law on Misdemeanours, the wronged party is entitled to file a petition for initiation of infringement proceedings in all cases except where, under the law, the authorities referred to in Article 179, paragraph 2 – administrative authorities, authorized inspectors, public prosecutor and other authorities and organizations exercising public powers and competent for direct enforcement or supervision of implementation of regulations providing for infringements – are exclusively authorized to institute infringement proceedings.

The Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/2004, 54/2007, 104/2009 and 36/2010), which governs the exercise of the freedom of access to information of public importance, does not contain any provision that would bestow an exclusive right on a competent authority to file petitions for initiation of infringement proceedings, nor does it contain any provision that would require a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings. Lodging of a complaint in accordance with Article 22 of this Law for an alleged violation of the right of free access to information is a discretionary right of a requester of information. Thus, Article 45 of this Law, which identifies the authority in charge of overseeing the implementation of the Law, including the power to file petitions for initiation of infringement proceedings, contains no provisions that would confer this right exclusively on such authority, thereby restricting the right of the wronged party within the meaning of Article 180, paragraph 3 of the Law on Misdemeanours or making it conditional upon additional requirements. Likewise, there is no such provision that would impose conditionality in the penal provisions of the Law on Free Access to Information of public Importance (Articles 46-48).

Furthermore, the fact that Article 46, paragraph 1, item 8 of the Law on Free Access to Information of Public Importance penalises as an infringement any failure to act pursuant to a request for free access to information of public importance in accordance with the law, which also includes situations where a public authority fails to inform a requester whether it holds the requested information or when it fails to pass a resolution rejecting a request as unfounded, reaffirms the opinion that liability for an infringement is in no way linked with the Commissioner's decision pursuant to a complaint in an administrative procedure initiated for the violation of a right, which would be the case for infringements committed by failure to comply with the Commissioner's decisions, punishable under Article 46, paragraph 1, item 14 of the Law.

The provision of Article 180, paragraph 4 of the Law on Misdemeanours, which reads: "If a petition for initiation of proceedings was filed by the competent authority before the proceedings were initiated on a request of the wronged party, the proceedings will be conducted pursuant to the petition for initiation of the proceedings filed by the competent authority", reaffirms the Commissioner's opinion that the right of the wronged party to file a petition for initiation of infringement proceedings is not conditional upon the competent authority not filing such a petition. Moreover, no such conclusion can be drawn from Article 180, paragraph 3 of the Law on Misdemeanours, which obviously refers to situations where filing of a petition for initiation of infringement proceedings is the exclusive right or duty of the competent authority, which is not the case in matters of free access to information of public importance, as stated above.

Finally, the court has been informed that the Commissioner's official website at http://www.poverenik.rs/sr/prekrsajna-odgovornost.html contains several judgements of magistrates' courts regarding liability for violation of the right of free access to information made pursuant to petitions filed by the wronged parties, which have been made available to the Commissioner.

Number: 011-00-1040/1- 2014-02 of 20 November 2014