Decisions - Legal interest

The applicant addressed the Commissioner for Information of Public Importance and Personal Data Protection on 6 June 2011 for an opinion whether the immediate family members (spouse, children, sisters) have right to insight into the autopsy report of the deceased, who had died under mysterious circumstances, as stated in the request.

The Commissioner's Response No. 011-00-252 /2009-03 dated 6.06.2011, states, inter alia, the following:
"Article 14 of the Law on Free Access to Information of Public Importance ("Official Gazette of RS" Nos.120/04, 54/07, 104/09 and 36/10) stipulates that applicant's right to access information of public importance shall not be fulfilled if it would thereby violate the right to privacy, the right to reputation or any other right of a person that is subject to information, except if the person has given his consent.
According to Article 10 (6) of the Personal Data Protection Law ("Official Gazette of RS", Nos. 97/08 and 104/09-other law), a consent to process personal data (process includes insight or making available in other way) on data subject who has deceased, can be granted by spouse, children who have reached the age of fifteen, parents or siblings, or legal heir.
All above mentioned gives rise to an affirmative response to your question that the said family members have right to insight into the autopsy report of the deceased.
In addition, another explanation:
The right to insight into an autopsy report and/or obtaining a copy of it, may be exercised by filing a request for free access to information of public importance to the institution that holds it, according to the Law on Free Access to Information of Public Importance. In that case, the requested information made available to an applicant, in this case to you", might be available to any other potential applicant, as a representative of the public, which implies your waiver of the privacy of the deceased.
In case if you do not want the information requested to be available to the public, but only to you, then you can exercise your right to insight and/or obtaining a copy of document pursuant to the Personal Data Protection Law, also by filing a request to the institution that holds the document.
If the institution fails to act upon your request or refuse your request, regardless of the basis on which you filed your request, you may submit an appeal to the Commissioner.
You can find more information on how to exercise both rights on the Commissioner's website:  www.poverenik.rs, where you can download forms of requests and appeals. "

(Abstract, Commissioner's Response No. 011-00-252 /2009-03  dated 6.06.2011)

According to the Law on free access to information of public importance («Official Gazette of the RS» No. 120/04), a justified importance of the public to know, in principle, exists as for all information at the disposal of the public authorities. The enquirer does not have to evidence his importance to know certain information, nor to prove justifiability of his importance. According to the Art. 15 section 4 of the Law, the government body must not ask the enquirer to state his reasons for the request submission.

If the government body withholds to the enquirer access to certain information, it's duty is to prove that it is in the concrete case justifiable in order to protect the priority importance. Such reasons may be: security reasons, defense of the country, revealing of the offender, conduction of court proceedings, protection of privacy and others, in any case - reason explicitly provided for under the Law.

It is in particular necessary to emphasize that under the Art. 4 of the Law it is laid down that the public authorities must never withhold access to information relating to endangering and protection of life and health of people and environment. Therefore, with respect to such information, the authorities are not allowed to assert that the public does not have justifiable importance to know such information.

From the press release of the Commissioner of 4 July 2005

As regards the right of a third party who has not identified itself as a minority shareholder to access information contained in a sale agreement concluded between the parties to a privatization process, one should keep in mind the provisions of Article 4 of the Law on Free Access to Information of Public Importance (Official Gazette of the Republic of Serbia No. 120/04), under which there is a legal assumption of justified importance of every information seeker to access public information and it is incumbent upon public authorities to prove the opposite, if they deem it to be the case. A public authority does not have the option of denying access by proving that the public does not have justified importance to know the information requested if such information concerns cases of jeopardizing or protection of public health and the environment.

A sale agreement concluded between the parties to a privatization process, as a document produced in connection with the Agency's operations, is deemed to be information of public importance within the meaning of Article 2 of the Law on Free Access to Information of Public Importance.

The confidentiality mark which is, as you say, generally attached to such agreements is not in itself a sufficient reason to deny access to information contained therein.

In order to preclude or restrict free access to information of public importance, a public authority must be able to prove that this is done to thwart a serious violation of a predominant importance under the Constitution or under a law, as set out in Article 9 of this Law, or to protect the privacy and other personal rights in accordance with Article 14 of the Law.

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