Source: "Nin" magazine
Interview: Rodoljub Sabic, Commissioner for Information of Public Importance and Personal Data Protection
I sought protection from the competent authorities only once, several years ago. I did that although I did not consider the threats to be particularly serious even then because they were not addressed to me but to my family members. And the response of the competent authorities was such that it was obvious that even if threats had been serious, I could have hardly expected any assistance and protection
Six years after establishment of the institute of the Commissioner for Information of Public Importance, Mr. Rodoljub Sabic said for “Nin” magazine that Serbian citizens are increasingly exercising the freedom of information. It is evident that they are increasingly exercising it in continuity. Taking into account the specific situation which shows that Serbia lacks strong democratic mechanism for public control over Government’s actions and functioning of public authorities and that this mechanism is absolutely vital, it is very important that this trend continues. And I would like to emphasize again that we insist on the duty of the Government to publish as many pieces of information as possible on a proactive basis, in advance, without specific requests from citizens.
In your experience, are the media or citizens themselves persistent enough to persevere in their requests submitted to institutions?
The annual report for 2010 I submitted to the National Assembly stated among other things that more than 2,000 complaints were submitted to the Commissioner in that year. This is 55% more than in the previous year and as many as seven and a half times more than in 2005. These figures confirm that the number of persons ready to persistently insist on their right is constantly increasing. And this information is invaluable from the aspect of real democratization of the society. Because the more citizens are ready to insist on the real exercise of rights enshrined in the Constitution and the law of this country, considering these rights to be substantive rather than cosmetic and refusing to accept that these rights depend on someone’s “good will”, the higher the chances to make the process of democratic transition sounder and faster.
How has the public perception of the importance of publicity of information changed over time?
This was a “battle” which the Commissioner fought with relatively modest powers and with absolutely modest resources. The first seven months I had no associates and later I had only five associates almost until the second half of 2009. Even now, when I have about thirty associates, their number is still two times lower than envisaged. To illustrate the situation better, taking into account the powers conferred, this number is lower than in similar authorities in any other former Yugoslav republic both in relative and in absolute terms.
The situation is similar as regards powers. For example, while the Serbian Commissioner does not even have the power to institute infringement procedures before a competent authority against violation of the right to free access to information, the Slovenian Commissioner holds the proceedings himself and imposes sanctions.
This is why that “battle” had to be based and largely was based on support from the public, citizens, the civil sector and, of course, the media. Through frequent public presence, the Commissioner compensated for the deficit in resources and powers. When support from the public in numerous, various forms was stronger, the level of “understanding” was also higher.
How has the attitude of institutions towards disclosure of information to the public changed over recent years, if it basically changed at all?
It has not been changing as fast as it should, but it has been changing continually. It is a continuous, progressive and irreversible process. I do not believe that the results achieved thus far can be annulled. The focus of the “battle” should be shifted to the affirmation of the modern concept of freedom of information. According to this concept, this right implies much more than specific handling of requests for access to information – the duty of all levels of the Government to publish on a proactive basis as many pieces of information as possible on its operations, particularly those on disposal of public finance and public resources, without requests from citizens. It is commendable that there are good examples in this regard. Because of the importance of the institution, I would like to single out the Information Booklet of the National Assembly as a very positive example.
Which institutions are now the most accessible for cooperation with citizens and the media? And which would you single out as the least cooperative?
Citizens and the media themselves should determine which institutions are the most accessible for cooperation with them. As regards complaints, the citizens and the media lodged them against public authorities at all levels. Still, most complaints were lodged against government bodies, organizations and agencies of the Republic of Serbia, above all ministries. For example, the highest number of complaints was lodged against the Ministry of Internal Affairs, followed by the Ministry of Finance, the Ministry of Justice and the Ministry of Agriculture, Forestry and Water Management.
Of course, these data are indicative, but still we should draw general conclusions from them. A typical example is the Ministry of Internal Affairs. The large number of complaints lodged against this Ministry is the result of the fact that by far the highest number of requests to access information was submitted to it, to which it replied without any problem in most cases. There are ministries to which much lower number of requests was submitted and, accordingly, fewer complaints against them were lodged with the Commissioner. These include the Ministry of the Environment and Spatial Planning and the Ministry of Finance, which have serious problems in connection with the exercise of freedom of information.
What kinds of pressures have you been facing during your term of office as the Commissioner?
If you meant direct, open pressures, there were none. I have not faced something I would qualify that way so far. In a wider context, the issue is relative and the answer to your question depends on how one sees different unpleasant situations. Of all unpleasant situations I have experienced, I might consider chronic denial of conditions necessary for proper functioning of the institution of the Commissioner as at least indirect pressure.
Of course, there have been other unpleasant situations. I think that most of them should not be considered serious in the context of real pressure. Such were, for example, anonymous insults or threats and even two car accidents which resulted from rather unusual breakdowns of my official vehicle. There were many situations when behaviour of Government officials was unexplainable in the same context. As a typical example, I would like to remind you of the rude, vulgar insults the Director of the public enterprise “Putevi Srbije” once directed to me because of my support to legitimate requests from the media to access information which would confirm the operation of the “road mafia”. He was imprisoned several years after that, but it is certainly indicative that no one in the Government found it appropriate to condemn his behaviour or at least to distance themselves from it.
Do you feel pressured by the conferring of another power (personal data protection), resulting in an excessive volume of your operations?
The new powers, wider and more complex than the previous ones, have, of course, been an additional burden. It would be an additional burden for anyone, particularly for an institution which operated in completely inadequate conditions even before that. But, regardless of that, I have not experienced it as pressure. I understood it as an expression of a choice by the Government and the Assembly which is increasingly supported by examples in comparable law. Similar organizational and functional arrangement according to which one authority ensures protection of the right to free access to information and the right to personal data protection exists, for example, in England, Slovenia, Hungary… But, of course, I expected that the choice would be confirmed by provision of adequate material, logistic and human resources. Unfortunately, this did not happen.
How do you perform additional tasks for which you still lack the necessary capacities?
In the only manner possible, considering the limits imposed by objective circumstances. In the course of drafting of the Law on Personal Data Protection, the Government itself stated in the rationale to the Bill that implementation of the law would imply increasing of the Commissioner’s budget and significant increase in the number of associates, which is particularly important. For reasons that are difficult to fathom, this has not happened. I do not know why, maybe because of a gross omission of the Ministry of Finance throughout 2009. An adjustment of the Commissioner’s human resource plan was not endorsed and I could employ no new associates to perform tasks under the new powers. This implied that performance of new tasks could only be improvised on a shoestring.
In 2010, the situation improved significantly, but it is still far below the optimum level. Still, we managed to make up for most of the tasks we failed to perform due to lack of elementary conditions, at least as regards the Commissioner's duties.
Does the manner in which personal data protection is regulated constitute a good basis for your operations or does it make your operations more difficult?
The normative framework is far from satisfactory. We passed the Law on Personal Data Protection, but it is not fully harmonised with EU standards. We have not passed laws which would regulate issues of data protection in certain particularly sensitive fields, such as processing of biometric data, video surveillance and private safety sector. There are issues with laws in the field of education, healthcare etc. Also, some of the laws that have been passed are associated with a host of various issues, such as the Law on Electronic Communications. As regards the necessary secondary legislation, only that for which the Commissioner was responsible was passed within the statutory time limit. Passing of secondary legislation within the sphere of competence of the Government or ministries has been delayed or such secondary legislation has not been passed at all. Particularly worrying in that regard is a two-year delay in passing of the Decree on Protection of Particularly Sensitive Data, which makes special protection of this category of data envisaged by the law still just an empty proclamation.
Much still remains to be done. We must pass or amend a number of laws and regulations. And for that to be effective, necessary human and other resources must be provided to the supervisory institution, namely the Commissioner, and, perhaps most importantly, citizens and those who hold personal data must be educated. Our citizens are used to giving their personal data all the time, even copies of documents, without clear notion about why they give the data, how they would be further treated and whether they might be abused.
Activity of a number of entities is necessary, based on a clearly defined strategy instead of unorganized activity. After repeated insisting by the Commissioner, the Government adopted the Personal Data Protection Strategy, the draft of which was prepared by the Commissioner in cooperation with EU experts, but the “adopted” Strategy is a dead letter because the Government failed to pass the Action Plan for its implementation, although the time limit for that expired a long time ago.
Are you satisfied with the results achieved by operations of the Commissioner’s Office after six years?
Statistics show that almost 12,000 cases have been registered, of which about 10,500 have been resolved. They show that in about 91% of cases the Commissioner’s interventions produced results and requesters received previously denied information. They also show that the number of complaints lodged with the Commissioner is constantly increasing. The highest number of complaints so far has been lodged in 2010, over 2,000, but almost 1,000 of those complaints have been lodged during the first quarter of that year.
These are the figures. And since no one should evaluate their own work, I shall refrain from doing so. But I am certainly satisfied because I can say that operations of the institution I manage were highly praised by CoE and EU monitors, independent experts, associations of journalists and other civil sector entities. And, most importantly, they are praised every day by many so-called “common” citizens. Affirmation of an initially completely anonymous institution as a public authority in which citizens have confidence, as evidenced by the high and constantly increasing number of requests for the protection of rights, is the most valuable result of my associates’ and my work. It is a success. And an objective failure is the fact that in spite of my persistent efforts, I failed to motivate any of the several successive governments elected in recent years to provide full, proper support to this institution.
