In its petition VIII Su No. 47/12-12 of 21 March 2014, a court requested from the Commissioner for Information of Public Importance and Personal Data Protection to provide his opinion on the scope of personal data protection in documents submitted according to the Law on Free Access to Information of Public Importance, particularly in judgements, with the aim of ensuring uniform treatment and preventing double standards, since, this matter was, in their opinion, not provided for in the law.
In that regard, the Commissioner informed the court as follows:
A decision about which information contained in a particular document may be made available to the public as information of public importance and to which extent is made on a case-by-case basis, taking into account specific circumstances. The same applies also to information contained in court judgements, including personal data.
Since information concerning the names of parties in court proceedings who are natural persons is also deemed to be personal data, making such information available to the public constitutes personal data processing which must be lawful according to the Law on Personal Data Protection ("Official Gazette of RS", No. 97/08 and 104/09-other law, 68/12- Decision of the Constitutional Court and 107/12). For processing to be lawful, the basis for personal data processing must be provided for by the law or the data subject must have given his/her consent for processing.
The Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/04, 54/07, 104/09 and 36/10) (hereinafter referred to as "LFAIPI") is one of the legal bases for personal data processing which in its Article 14, paragraph 1, items 1-3 stipulates exceptions from the right to privacy, and thus also the right to personal data protection as a part of the right to privacy.
In view of the foregoing, a decision whether the names of parties in court proceedings should be made available to the public as information of public importance should be based on the public interest test referred to in Article 8 of LFAIPI, i.e. on a weighing of interests between the right of the public to know and protection of the right to privacy or other legitimate rights and interest referred to in Article 9 of LFAIPI.
Firstly, as regards names of officials who participate in proceedings that are contained in judgements, the Commissioner's opinion in principle is that such persons by virtue of their office cannot reasonably expect to be afforded the same level of privacy protection than the so-called common citizens and that their names should be available to the public, since it is information concerning their conduct in public office, i.e. the discharge of public duties, rather than information concerning a person's private life. The basis for disclosure of such information is contained in Article 14, paragraph 1, item 2 of LFAIPI. This includes names of officials, i.e. holders of public offices, such as judges, prosecutors, lawyers, court appointed experts and sworn-in-court translators.
As regards names of suspects, if the public interest test is performed, considerations in favour of disclosure of such information may be the fact that a suspect's behaviour gives sufficient justification for disclosure of such information or that such information has already become public, or the suspect is a person of public interest or he/she committed criminal offence(s) prosecuted ex officio or criminal offences which cause serious threat to the society or prejudice a public interest, as well as any other facts that may be fall under the exceptions provided for in Article 14, items 2 and 3 of LFAIPI. In this context, a valid and enforceable criminal conviction provides a further reason to make the names of suspects available to the public.
As regards names of other participants in the proceedings, especially witnesses, a court's decision whether such information should be made available must also be based on a specific assessment, such as whether persons can be identified by publishing only names and surnames, what type of court proceedings is conducted, whether the persons in question are underage or belong to other vulnerable populations, whether the proceedings have been ended with a valid and enforceable judgement, whether this may affect the statements of other persons who have not yet been heard etc.
The court must certainly already be aware that there are other legal bases for disclosing the names of suspects, for example if an injunction involving public availability of a judgement is imposed.
When making information contained in judgements available to the public, the main personal data processing principles set out in Article 8 of the Law on Personal Data Protection must also be taken into account, including the principle of proportionality. This means that no other personal data should be publicised in addition to a person's name and surname insofar as there is no legal basis for the publication of such information or it would constitute excessive processing (address information, unique personal identification number etc.).
If there is no public interest in disclosing the names of parties in the proceedings, such as the names of litigants, the court has a duty to protect their names, i.e. to depersonalise the judgement before making it available as information of public importance, in which case it is also necessary to protect personal data from which the data subject may be identified.
Taking into account the foregoing, from the aspect of LFAIPI there is no general answer to the question which data should be protected in court judgements while handling a request to access information of public importance; instead, the court should consider such situations on a case-by-case basis.
In this context, it should be noted that even if a court has its own rules about data anonymization, this must not prejudice or affect a decision of the court hen it handles a particular request to access information. As regards anonymization of documents, the Commissioner's Bylaw on data anonymization is available at: http://www.poverenik.rs/sr/o-nama/akti-o-radu-sluzbe/aktuelni-akti/1706-pravilnik-o-anonimizaciji-podataka-o-licnosti.html
The Commissioner did not have and could not have had a different opinion about publishing of judgements, not least because he has also been in charge of protecting rights regarding personal data processing since the enactment of the Law on Personal Data Protection. The Commissioner's public announcements concerning excessive data processing included cases which involved publication of photos of arrests and other personal data of certain persons, the need to protect underage victims of criminal offences about whom the media published more information than necessary and admissible and other situations different from the case in question, such as the availability of a judgement for war crimes.
Number: 011-00-00320/2014-02 of 31 March 2014
