For the purpose of complying with the Commissioner's ruling, a public enterprise of the Republic of Serbia (PE) requested additional explanations for compliance with the order to make available information on the amount of employees' salaries and travel allowances for business travels, explaining there was a collision between the Law on Personal Data Protection and the Law on Free Access to Information of Public Importance. The PE also invoked the Commissioner's Letter of Warning number 164-00-00059/2013-07 of 3 July 2013 it received in connection with personal data processing.
The Commissioner sent the following reply to the PE:
It is true that the freedom of information and the right to privacy, i.e. the right to personal data protection as a part of the right to privacy, may often be in collision. If this is the case, in the deliberation of a request for free access to information of public importance the so-called public interest test is applied, as provided for in Article 8 of the Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/04, 54/07, 104/09 and 36/10).
In weighing the right of free access to information of public importance and the right to privacy, where the information concerned also constitutes personal data, Article 14 of the Law on Free Access to Information of Public Importance applies for the purpose of determining whether the requirements for application of the exemptions from the right to privacy provided for in items 1 to 3 of that Article are met for disclosure of such data.
As regards information on salaries, bonuses and allowances of employees in a public authority, the Commissioner's opinion in principle is that this is information which should be available to the public, since they are earned from public funds and/or paid from the budget and that there is always a strong interest of the public to know how public funds are managed. In addition, in this specific case, these are also data concerning holders of managerial posts, which means that the threshold of privacy is lower and the balance tips in favour of the right to know.
However, this is not true of all pieces of information contained in the payroll sheets, e.g. data or information concerning: bank account number, years of service, withholdings made for child support, loans, membership fees etc., information on an employee's address, unique personal identification number etc., the disclosure of which may violate the privacy of data subjects. Disclosure of these data as information of public importance would constitute excessive personal data processing, in violation of one of the main principles of proportionality of personal data processing provided for in Article 8 of the Law on Personal Data Processing ("Official Gazette of RS", No. 97/08 and 104/09-other law, 68/12- Decision of the Constitutional Court and 107/12). This is also implied in the Commissioner's Letter of Warning you invoked in your enactment.
Because of this, the order in the commissioner's ruling in question contains a clause ordering protection of the abovementioned data before disclosing the requested data concerning salaries, bonuses and allowances and other data, in accordance with Article 12 of the Law on Free Access to Information relation to extraction of information.
We would like to remind you that according to Article 28 of the Law on Free Access to Information of public Importance, the Commissioner's rulings are binding and enforceable and that complying with the order in that ruling constitutes lawful personal data processing, while failure to comply with the ruling is punishable as an infringement under Article 46, paragraph 1, item 14 of the said Law and could also contain elements of the criminal offence provided for in Article 361 of the Criminal Code".
No. 07-00-01210/2-2013-03 of 30 July 2013
