Public authorities posed the question whether the listing of e-voting information, which includes information on how individual members of the Assembly voted on the various items on the agenda as well, constitutes information of public interest and whether there is a legal obligation of the City Assembly to provide the information at the request of journalists. The refusal of the request is reasoned by stating the manner in which the publicity of Assembly sessions is ensured and that the disclosure of listings of voting information would adversely affect the independence of councillors and their free will.

The Commissioner's answer, inter alia contains the following:

The listing as a document containing information on e-voting in the City Assembly constitutes information of public interest within the meaning of Article 2 of the Law on Free Access to Information of Public Importance ("Official Gazette of the Republic of Serbia" Nos.120/04, 54/07, 104/09 and 36/10), in respect of which, it shall be deemed that a justified public interest to know exists pursuant to Article 4 of the Law, unless the public authority concerned proves otherwise. It follows that the Law allows the public authority to prove that in a particular situation there is also some other legitimate interest that opposes the interests of the public to know, and that the interest prevails, while there is an obligation to issue a reasoned ruling on rejecting of the request.

Bearing in mind possible reasons to limit the right to free access to information which are stipulated in Articles 9, 13 and 14 of the Law, whose mere existence does not automatically lead to limitation of rights without weighing the competing interests pursuant to Article 8 of the Law, the Commissioner is of the opinion that it would be very difficult to prove that accessing information from the listing of voting at the City Assembly sessions constitutes an infringement on one of the interests which are protected by the said limitations (national security, economic interests, court investigations, life, health, safety, privacy etc.).

Bearing in mind that this concerns the public office holders, arguments about the possible impact on the independence of councillors and their free will, cannot be the reason for potential restrictions on the right with reference to invasion of privacy and other personal rights, in the sense of Article 14 of the Law, considering that in that particular situation there is room to apply the exemptions set out in paragraph 2 of this Article (if it is a person, an occurrence or event of public interest, especially in case of a holder of public office or political figures, insofar as the information bears relevance on the duties performed by that person). Therefore, the fact that a councillor might be confronted because of the way he/she voted, cannot be the reason for withholding information about voting, because the performance of any public function, or performance of any public work, implies a certain responsibility that comes from acting in the name the authority which he/she represents, which significantly reduces the level of privacy in comparison to "ordinary" citizens.

The position that listings of voting information of councillors at the City Assembly sessions should be made available to the public is supported by the fact that the information is related to the exercise of public or political office, that the municipal, or city assembly sessions are public pursuant to the Self-Government Law except in exceptional situations, and that citizens undisputedly have an interest to know what position their elected representatives take when deciding on issues which are of vital importance for their livelihood.

Facts presented by a public authority in support of the argument against making available lists of voting information to the journalists, that the publicity of sessions is ensured in another manner, have not been provided for under the Law as possible reasons to limit the right of access. Implementation of Article 10 of the Law pursuant to which a public authority does not have to allow an applicant to exercise his/her right to access the information of public importance, if such information has already been published and made accessible in the country or on the Internet, is possible only if the information from the listing of voting information, at the time the request was filed, was accessible to the applicant, i.e. had already been published on the Internet.

No. 011-00-00540/2013-02 dated 13 August 2013