The Commissioner for Information of Public Importance and Personal Data Protection sent a letter to the Serbian Prime Minister in which he suggested that the Government delete from the text of the Regulation on Office Operations of Public Administration Bodies the recently adopted provisions which provide for the classification label "Official" as one of the possible labels of confidentiality affixed to documents in addition to those provided for by the Law on Data Confidentiality (Internal, Confidential, Top Secret and Official Secret).

On this occasion, the Commissioner chose to set aside the ongoing public debate as to whether the introduction of the label "Official" constitutes another form of data confidentiality in formal terms or in terms of substantive law; however, he noted these provisions in any cases concerned the constitutionally protected right to information, i.e. the right to access information held by the government. In this context, he recalled that Article 51 of the Constitution, which guarantees this specific right, provides that the right shall be exercised "in accordance with the law." It is evident from this provision that the Constitution explicitly requires for this right to be governed by a law. Hence, it cannot be restricted or governed by a piece of secondary legislation. However, in this case the use fluid, vague and imprecise wording of "sensitive" and in particular "warrants limited distribution", whether viewed from grammatical, logical or legal points of view, seems to point to the conclusion that the said Decision, i.e. a piece of secondary legislation, purports to "govern" issues pertinent to the exercise of the constitutional right to information and this is done in a manner that is not provided for by any law.

The Commissioner notes that the issue with the contested provisions of the Regulation does not simply boil down to an abstract legal matter and is likely to cause quite unnecessary practical problems, both with regard to the public perception of transparency of the Government and administration and with regard to the exercise of rights by the public. He therefore recommends that the Government repeal these provisions as soon as possible.