Abuse of right

One magistrates' court submitted a petition to the Commissioner for Information of Public Importance and Personal Data Protection in which it expressed its disagreement with the Commissioner's opinion published in the Publication No. 3 "Free Access to Information – Commissioner's Attitudes and Opinions" http://www.poverenik.rs/images/stories/dokumentacija-nova/prirucnik/3.publikacija/publikacijaiii.pdf,

which states that in matters of on free access to information of public importance "the existing legislative provisions do not require from a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings in the capacity of the wronged party, but this does not exclude an option of the trial court to ask the Commissioner's opinion if necessary."

With this in mind, the court demanded an answer to the following question:

"Which existing legislative provisions do not require from a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings in the capacity of the wronged party?" It also expressed an opinion contrary to the stand taken by the Commissioner.

In his reply to the court, the Commissioner inter alia stated the following:

Since the Commissioner's decisions, just as the decisions and opinions of magistrates' courts, are subject to judicial review in relevant proceedings and the merits of the arguments presented in those decisions are reviewed in those proceedings, the Commissioner would like to refrain from discussing the merits of the obviously opposed opinions, since it is not unlawful for authorities to disagree in their interpretations of the law. An answer is provided to the question addressed directly to the Commissioner.

According to Article 179, paragraph 1 of the Law on Misdemeanours ("Official Gazette of RS", No. 65/13), a petition for initiation of infringement proceedings is filed by the competent authority or by the wronged party.

According to Article 180, paragraph 1 of the Law on Misdemeanours, the wronged party is entitled to file a petition for initiation of infringement proceedings in all cases except where, under the law, the authorities referred to in Article 179, paragraph 2 – administrative authorities, authorized inspectors, public prosecutor and other authorities and organizations exercising public powers and competent for direct enforcement or supervision of implementation of regulations providing for infringements – are exclusively authorized to institute infringement proceedings.

The Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/2004, 54/2007, 104/2009 and 36/2010), which governs the exercise of the freedom of access to information of public importance, does not contain any provision that would bestow an exclusive right on a competent authority to file petitions for initiation of infringement proceedings, nor does it contain any provision that would require a requester of information to lodge a complaint with the Commissioner before filing a petition for initiation of infringement proceedings. Lodging of a complaint in accordance with Article 22 of this Law for an alleged violation of the right of free access to information is a discretionary right of a requester of information. Thus, Article 45 of this Law, which identifies the authority in charge of overseeing the implementation of the Law, including the power to file petitions for initiation of infringement proceedings, contains no provisions that would confer this right exclusively on such authority, thereby restricting the right of the wronged party within the meaning of Article 180, paragraph 3 of the Law on Misdemeanours or making it conditional upon additional requirements. Likewise, there is no such provision that would impose conditionality in the penal provisions of the Law on Free Access to Information of public Importance (Articles 46-48).

Furthermore, the fact that Article 46, paragraph 1, item 8 of the Law on Free Access to Information of Public Importance penalises as an infringement any failure to act pursuant to a request for free access to information of public importance in accordance with the law, which also includes situations where a public authority fails to inform a requester whether it holds the requested information or when it fails to pass a resolution rejecting a request as unfounded, reaffirms the opinion that liability for an infringement is in no way linked with the Commissioner's decision pursuant to a complaint in an administrative procedure initiated for the violation of a right, which would be the case for infringements committed by failure to comply with the Commissioner's decisions, punishable under Article 46, paragraph 1, item 14 of the Law.

The provision of Article 180, paragraph 4 of the Law on Misdemeanours, which reads: "If a petition for initiation of proceedings was filed by the competent authority before the proceedings were initiated on a request of the wronged party, the proceedings will be conducted pursuant to the petition for initiation of the proceedings filed by the competent authority", reaffirms the Commissioner's opinion that the right of the wronged party to file a petition for initiation of infringement proceedings is not conditional upon the competent authority not filing such a petition. Moreover, no such conclusion can be drawn from Article 180, paragraph 3 of the Law on Misdemeanours, which obviously refers to situations where filing of a petition for initiation of infringement proceedings is the exclusive right or duty of the competent authority, which is not the case in matters of free access to information of public importance, as stated above.

Finally, the court has been informed that the Commissioner's official website at http://www.poverenik.rs/sr/prekrsajna-odgovornost.html contains several judgements of magistrates' courts regarding liability for violation of the right of free access to information made pursuant to petitions filed by the wronged parties, which have been made available to the Commissioner.

Number: 011-00-1040/1- 2014-02 of 20 November 2014

A public authority filed petition No. 130-037-43/2014-02 with the Commissioner for Information of Public Importance and Personal Data Protection on 10 March 2014, in which it requested his opinion about an authority's option to invoke abuse of rights in connection with a particular freedom of information request filed by a citizens' association, requesting a report showing whether the budget funds, which this authority transferred to the Public Water Management Enterprise "Vode Vojvodine" and the Public Enterprise "Vojvodinasume", were used for their intended purpose, with supporting documents. The authority explained that the requester frequently addresses this authority, having filed 48 requests in 2013 and already 14 requests since the beginning of 2014, that several of employees were working full time just to reply to those requests and that the authority did not know whether the president of the Association used the information provided.

In that regard, the Commissioner sent the following notification to the public authority:

"As you stated in your letter, you are familiar with the fact that the Commissioner provides his opinion on the lawfulness of decisions or actions of first-instance authorities pursuant to complaints in individual cases, on the basis of relevant facts and circumstances, including in particular evidence presented by the first-instance authority, and he will do so in this case if and when a complaint is lodged. Thus, in order not to prejudice the outcome pursuant to a possible complaint in the case you presented in your letter, we will present only an opinion in principle regarding the institute of abuse of the freedom of information.

The Law on Free Access to Information of Public Importance ("Official Gazette of RS", No. 120/04, 54/07, 104/09 and 36/10) provides for several exemptions from the right of free access to information of public importance and none of these exemptions, including abuse of the right, are absolute by their nature; instead, evaluation of the prevailing interest is required in accordance with Article 8 of this Law. In accordance with Article 16, paragraph 10 of this Law, a first-instance authority has the legitimate right to pass a decision denying access to information, with explanation of such decision and a statement of available remedies, if it finds that the requirements for doing so in accordance with the law are met. As regards abuse of the right, the Commissioner would like to point out the following:

The institute of abuse of the right under Article 13 of the Law is interpreted very restrictively. Abuse of the right refers to situations when a request is unspecified and obviously unreasonable and complying with the request would impose an unacceptably heavy burden on the authority, disproportionate to the interest of the public to know, where the public authority has to make extra effort to reply to the request to an extent and in a manner that would not interfere with the normal functioning of that authority, or situations where a request is filed repeatedly for information already received or made available. Of course, the authority concerned must be capable of demonstrating this in the event of a complaint or initiation of an administrative procedure.

The volume of requested information is in itself not a sufficient reason to treat a request for information as abuse, especially when documents are available electronically and when such information relates to payments from the budget and management of public funds. In addition, the frequency with which requests are filed does not in itself constitute abuse of the right, except in cases where requests are obviously unreasonable, too vague or require disproportionately huge effort to find the requested information or where the same requests are filed repeatedly in a way which interferes with the normal functioning of an authority.

This opinion is also supported by relevant international documents and accepted standards in the field of freedom of information and freedom of access to official documents, as well as the underlying concept of the Serbian law on access to information, according to which the freedom of information is the rule, while any limitations are strictly exceptions, it being understood that the onus is on the public authority acting pursuant to a request to demonstrate the justifiability of imposing any such limitations.

The Commissioner would also like to point out that the fact a public authority receives numerous freedom of information requests often tends to be an indication that the authority in question needs to take a more active role by publishing as many pieces of information concerning its operations as possible on its official website even without specific requests.

Number: 011-00-00264/2014-02 of 17 March 2014

The Court requested the Commissioner for Information of Public Importance and Personal Data Protection under act No. VIII Su. 42-36/13 dated 5 August 2013 to provide clarification regarding the implementation of provisions on abuse of the rights governed by the Law on Free Access to Information of Public Importance.

As the reason, the Court stated that, within a short period, it had received a large number of access reqests from natural persons for the issuance of a large number of trancripts of court documents and their forwarding via the post, in which case the the Government's Ordinance on the Costs of Procedure applies, despite the fact that ''within the regular procedure'' governed by the Rules of Procedure of the Court, as stated by the Court, interested parties may file a reqest for issuing transcripts of certain court documents, for which adequate court fees have been prescribed, even though they have not previously adressed the court of jurisdiction via ''regular channels''. The court has highlighted that this reduces court revenues from court fees, that this constitutes a violation of the provisions of the Rules of Procedure of the Court and the Law on Court Fees, and presented its position that the Ordinance cannot be ''above'' the Rules of Procedure of the Court and the Law on Court Fees.

In the request for the Commissioner's opinion, the Court presented its position that there is no place for access to information requests, where a natural person addressed the court to obtain a transcript of a certain document or another information ''via the regular procedure falling within the jurisdiction of the court and where the court acted upon it".

In this regard, the Commissioner has sent the following reply to the Court:

''Firstly, the right to free access to information of public importance, pursuant to Article 5 of the Law on Free Access to Information of Public Importance ("Official Gazette of the Republic of Serbia" Nos. 120/04, 54/07, 104/09 and 36/10) includes the right of the requester to be informed whether the public authority holds the requested information, the right to examine the document containing the requested information, the right to make a copy of the document and the right to receive the copy at the indicated address. Therefore, the right to access information of public importance does not include the right of the requester to receive a transcript of the document.

The exercise of the rights of parties, or other interested persons, to access information contained in court files on other grounds, i.e. pursuant to regulations governing the work of court bodies and court procedure, does not preclude their right to free access to information of public importance which is guaranteed to everyone, under equal conditions, pursuant to Article 51, Paragraph 2 of the Constitution of the Republic of Serbia and Articles 5 and 6 of the Law on Free Access to Information of Public Importance.

The very fact that the requester, who at the same time has or has had the status of a party to court proceedings, has decided to access information contained in court files pursuant to the Law on Free Access to Information of Public Importance and the Bill of Costs from the Government's Ordinance on the costs of exercising of this right, and not pursuant to the Rules of Procedure of the Court, in which case the court fees apply, cannot be the reason to withhold information with reference to abuse of the right under Article 13 of the Law.

Provision of Article 13 of the Law on Free Access to Information of Public Importance is interpreted quite restrictively and it applies only to situations where the request is manifestly unreasonable, where acting upon the request would present an unreasonable burden for the authority, disproportionate to the public interest to know, where the authority previously invested additional efforts to comply with the request to the extent and in a manner that would not disturb the normal working process of the authority or in the situation where the applicant repeatedly requires the same information or information already obtained, which is something that the public authority must prove in case of appeal, i.e. administrative proceedings.

In the proceedings for free access to information of public importance an authority, i.e. court, may prove that the information has already been made available to the requester, provided that the content of the request is identical. This does not mean that the court may refer to this reason when rejecting a request for copies of documents in a situation where it has previously allowed the requester only to read the files i.e. examine the documents, because these are materially different rights.

The issue of the effects of implementation of the Law on Free Access to Information of Public Importance on court revenues from court fees is not something the Commissioner can deal with, because he is mandated to protect the exercise of right to free access to information of citizens and other persons in accordance with the law. It is undisputable that this is a factual issue that requires adequate normative or practical financial solutions, therefore the line ministry for judiciary and administration and monitoring of implementation of the Law should primarily be responsible for its resolution. For several years now, the Commissioner has referred to this issue in his reports to the National Assembly, unfortunately, executive power failed to respond and the necessary effects are absent."

No. 011-00-00528/2013-03 Date: 9 August 2013

Talking about possible misuse of right to access information of public importance, Article 13 of the Law on Free Access to Information of Public Importance (Official Gazette of the RS no.120/04), it should be assessed by the first instance body in legal procedure following the submitted specific request, before the Commissioner as the second instance body, taking into consideration all of the available facts and circumstances in relation to the request.  The Commissioner expresses his attitude on this issue in his decision based on possible complaint.

In general, we can, however, agree that a  question of abuse of the right to free access to information of public importance should be asked, whenever the requirements are too vague or they cover extremely bulky documents, or necessitate disproportionately big efforts of the bodies observing the procedure, or unreasonable and frequent requests hinder normal work of those bodies, and at that time the body in power is making extra efforts in the procedure and showing readiness to present  the requested information.  However, having in mind the possibility of potential abuse of provisions of Article 13, they should be interpreted in extremely restrictive manner. As an example, in comparative law, such limitations of rights to free access to information are applied only extremely, but some national legislations do not even know them.

(The answer is contained in the letter sent to a government body, no. 011-00-37/2007-03 of 23.04.2007.)