Classified document/information

Tax Administration has requested the Commissioner for Information of Public Importance and Personal Data Protection to give an opinion regarding the publication of information about the debts of media companies and their founders – natural persons - for public revenue charges.

In his response, the Commissioner has presented only a general position, since the position on whether certain information should be publicly available, in a concrete case, based on the relevant facts and circumstances, is taken when deciding on appeals as a second instance authority.

The Commissioner has stressed in his response that when deciding on claims the Tax Administration, being the first instance authority, should take into consideration that the rights to free access to information, pursuant to Article 8 of the Law on Free Access to Information of Public Importance (LFAIPI), may exceptionally be subject to limitations prescribed under this Law if it is necessary in a democratic society for the purpose of protection against serious violations of an overriding interest based on the Constitution or law and that no provision of this Law shall be construed as to limit the rights to a greater extent than is strictly necessary.

The Ministry, by submitting the brief No. 012-00-1/37/2011-02 of 18 May 2011, asked the Commissioner for Information of Public Importance and Personal Data Protection to "define" whether the Ministry is obliged to provide a response to the request for access to information of public importance which relates to documentation submitted to the Ministry in the process of recording chairmanship, taking into mind the provision of Article 10 of the Foreign Trade Law by which such information is confidential, and the provision of Article 9 5) of the Law on Free Access to Information of Public Importance.
The Commissioner's Response No. 011-00-216/2011-03 dated 23.05.2011 states, inter alia, the following:
„ The confidentiality label of a document or information is only one of the conditions which are important in terms of limitations of the right to free access to information of public importance. In order to limit access to such document – information, in addition to this, formal condition, according to Article 9 (1) 5) of the Law on Free Access to Information of Public Importance, it is essential that other, material condition, is fulfilled, and that is that its disclosure could seriously legally or otherwise prejudice the interests that are protected by the law and prevail the access to information interest. This does not refer to the hypothetical possibility of occurrence of damage, but to the actual, real damage. In addition, it should be bear in mind the provision of Article 8 of the Law, whish states that the rights provided for in this Law may, in exceptional circumstances, be subject to limitations set out in this Law if that is necessary in a democratic society and in the extent really necessary.
Thus, possible refusal of the applicant's request based on Article 9 (1) 5) of the Law implies the obligation of first instance authority, burden of proof is on it by the Law, to prove that the access to requested information could seriously damage legally or otherwise prejudice the interests that are protected by the law, which is not recognized in the submitted request, and to prove that these interests prevail the access to information interest, by applying interest test referred to in Article 8 of the Law."
(Abstract, Commissioner's Response No. 011-00-216/2011-03 dated 23.05.2011)

The court, by submitting the brief No. VIII 347/11 dated 16.05.2011, asked the Commissioner for Information of Public Importance and Personal Data Protection to "peruse the nature of the document" of the Military District Command from 1995 submitted enclosed bearing a confidentiality label, so as the court could act upon the request for free access to information of public importance, having in mind the provisions of Article 9 (1) 5) of the Law on Free Access to Information of Public importance.
The Commissioner's Response No. 011-00-213 /2009-03 dated 20.05.2011, states, inter alia, the following:
„ The confidentiality label of a document or information is only one of the conditions which are important in terms of limitations of the right to free access to information of public importance. In order to limit access to such document – information, in addition to this, formal condition, according to Article 9 (1) 5) of the Law on Free Access to Information of Public Importance, it is essential that other, material condition, is fulfilled, and that is that its disclosure could seriously legally or otherwise prejudice the interests that are protected by the law and prevail the access to information interest. This does not refer to the hypothetical possibility of occurrence of damage, but to the actual, real damage. In addition, it should be bear in mind the provision of Article 8 of the Law, whish states that the rights provided for in this Law may, in exceptional circumstances, be subject to limitations set out in this Law if that is necessary in a democratic society and in the extent really necessary.
Thus, possible refusal of the applicant's request based on Article 9 (1) 5) of the Law implies the obligation of first instance authority, burden of proof is on it by the Law, to prove that the access to requested information could seriously damage legally or otherwise prejudice the interests that are protected by the law, which is not recognized in the submitted request, and to prove that these interests prevail the access to information interest, by applying interest test referred to in Article 8 of the Law."
You are surely familiar with the fact that maters regarding data confidentiality in Serbia, including the procedure for determination of data confidentiality, label and degree of confidentiality, declassification and procedure for declassification and similar are regulated by the Data Secrecy Law ("Official Gazette of RS" No.104/09).
One of the manners to declassify under the Article 25 of the Data Secrecy Law is declassification under a decision of relevant authority, that is the Commissioner for Information of Public Importance and Personal Data Protection. However, this declassification is based on a decision made by the Commissioner acting upon appeal or complaint, in accordance with the Law on Free Access to Information of Public Importance and Personal Data Protection Law, where only an authorized public authority, acting upon the decision of the Commissioner made in that procedure, declassifies data or document containing secret data and enable the applicant to exercise his right. Therefore, the Commissioner is not authorized for declassification in the situation described in your request, i.e. to peruse the nature of the document as stated in the request.

(Abstract, Commissioner's Response No. 011-00-213 /2009-03 dated 20.05.2011)

The Commissioner for Information of Public Importance in his letter addressed to the Government of the Republic of Serbia indicated that within the short period of time, following the draft Law on Police, another law came into the procedure of the National Assembly, proposed by the Government of the RS, the statutory solutions of which are in contravention with solutions set forth under the Law on Free Access to Information of Public Importance.  In his press release of 26 October 2005 Commissioner said:

„Like similar laws in democratic world, our Law also provides for that citizen, requiring information, does not have to prove his importance about it.

Under provisions, such as the one of the Art. 5 of the draft Law on Police and Art. 153 of the draft Law on Infractions, the obligation of proving "justifiable" or "legal, or "legally based" or "reasonable importance", may cause unnecessary confusion, thus opening possibilities for the restriction of the rights of citizens.

It would be much better those proposals on new laws, relating to access to information, contain provisions addressing the Law on Free Access to Information of Public Importance, instead of controversial solutions. It is difficult to understand the logic behind proposing of such solutions, since there could be no doubt that in case of conflict the priority must be given to the Law on Free Access to Information of Public Importance, as lex specialis for the issues in question. Besides, the Declaration on Availability of Information, jointly adopted in December 2004 by Special Referee of the United Nations for Freedom of Opinion and Expression, representative of the OESC for freedom of media, and Special Referee of the Organisation of American States for Freedom of Expression, explicitly states, that in case of contravention, the Law on Availability of Information has priority over the all other law.

All the government bodies have to contribute to affirmation of democratic principles contained within the Law on Free Access to Information of Public Importance, in particular the Government and National Assembly".

From the press release of the Commissioner of 26 October 2005

From the aspect of implementation of this Law, whether a certain authority was in charge of producing a document is not the key issue. The very fact that a public authority holds a document in connection with its operation implies an obligation for that authority to provide access to that document when requested.

The issue of providing access to a document in possession of one public authority and drawn up by another public authority can be relevant if the creator of the document marked it as confidential or secret; in such cases, it is logical that the creator should remove any confidentiality marks and make the document available if the reasons for denying access, as set out in the Law, are not met.

The Commissioner understands difficulties which have some governmemt bodies because of the volume of required documents and because of the limited human and other resources available for processing the requests. These problems can to a certain extent be alleviated by efficient and effective compliance with the provisions of the Law. However, please note that the Commissioner cannot influence the choice of the addressee made by the information seeker in the event that a certain piece of information or a certain document is available to more than one authority. In this regard, the Commissioner can only continue calling on all public authorities to abide by the Law or to take the consequences set out in the Law, without any exceptions.

The answer is contained in the letter sent to a government body, no. 011-00-23/2006-03 of 20.06.2006.)