The Historical Museum of Serbia requested from the Commissioner for Information of Public Importance and Personal Data Protection to provide his opinion about whether in case of the job announcement for the Director of the Museum, the Managing Board (MB) of the Museum may decide that candidates' evidence of eligibility may be scanned and posted on the official website of the Museum, placed on the notice board and forwarded to the members of the MB and the Steering Committee.

The request further stated that the job announcement files in question included complete sets of documents submitted by the candidates, including the documents containing personal data stated in personal identification documents, certificates of nationality, evidence of no prior convictions etc. and they would be published only if and when the Commissioner gives a positive opinion.

The Commissioner replied as follows:

From the aspect of the powers conferred on him by the Law on Free Access to Information of Public Importance and Personal Data Protection, the Commissioner for Information of Public Importance and Personal Data Protection does not have the power to allow public authorities to publish documents containing personal data, which means he also cannot influence any decision to that effect made by the Museum's Managing Board.

Nevertheless, appreciating the efforts of the Museum and of the line ministry to make the procedure of selecting the director of the cultural institution transparent within the confines of the law, the Commissioner believes it is necessary to point out certain attitudes in principle which stem from the abovementioned laws, which the Museum must respect to ensure that publication of the information and documents in question does not violate any of the two rights established by these laws.

From the aspect 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), the information the Museum as a public authority holds in connection with the job announcement and hiring is indisputably information of public importance within the meaning of Article 2 of the Law.

Taking into account that the job announcement files also contain personal data within the meaning of Article 3 of the Law on Personal Data Protection ("Official Gazette of RS", No. 97/08, 104/09 –other law, 68/12-decision of the Constitutional Court, 107/2012) and that publication of such data constitutes processing of data subject to this Law, when deciding whether to make information contained in the job announcement files available to the public and, if so, which pieces of information may be published, the Museum should take into account the following considerations:

Since this is a public announcement for the office of a manager of a public authority, there is no doubt that the public has a keener interest in knowing information relevant for deciding on the selection of candidates or information relevant for the conduct of the office as such. In this context, from the aspect of Article 14 of the Law on Free Access to Information of Public Importance, it would be justified for example to publish names of the candidates, the draft program of work and the candidates' CV's or professional references, i.e. information that increases the public's involvement in the decision-making processes of public authorities and their evaluation. Since these are candidates for a public office, their expectations regarding protection of privacy most certainly cannot as high as those of e.g. candidates applying for the post of an "ordinary" civil servant or a job outside of public authorities.

In general, disclosure of other documents of all candidates, i.e. documents containing personal data, such as copies of personal identity documents, birth certificates, health certificates, evidence of no investigations pending and no prior convictions etc. without prior explicit consent of candidates and without serious reason for disclosure would be problematic from the aspect of justifiability of processing and the principle of excessiveness, which means it would also be contrary to Article 8 of the Law on Personal Data Protection.

Such documents or information contained in them could be made available to the public upon filing of a request for free access to information only if in a particular case it could be demonstrated that there is a strong public interest in their disclosure, when the interest of the right to know prevails over the protection of the right to privacy or the right to personal data protection as a part of the right to privacy. This includes one of the cases stipulated by Article 14 of the Law on Free Access to Information of Public Importance, e.g. if a candidate contributed to disclosure of such information by his/her behaviour or if there is reasonable doubt as to the correctness of an authority's decision regarding the compliance of a candidate with a certain requirement of the job announcement etc.

As regards publishing of decisions of the Museum or other public authority passed during the hiring procedure, it would probably be impossible to demonstrate there is no justified interest of the public to know or there is another prevailing interest as a possible reason to limit this right, since this is information which shows whether an authority complied with the procedure and requirements of the hiring procedure when selecting the director, but even when such documents are published it should be ensured that personal data which affect privacy and are not relevant for the conduct of office are first protected and made unavailable to the public, such as address information, unique personal identification numbers etc.

Handling of candidates' documents in the process of making a selection decision pursuant to a job announcement necessarily requires certain safeguards, in accordance with Article 47 of the Law on Personal Data Protection.

Number: 011-00-691/2013-02 of 5 November 2013