Is the information of public importance?

Under Act No. 71/13 dated 24 September 2013, a Citizens Association requested the opinion of the Commissioner for Information of Public Importance and Personal Data Protection on whether the information about a list of centres for social work, which have in the course of 2012 removed children from their families for safety reasons, and the number of children removed by each centre from their family on those grounds, can be considered confidential or public. It has been emphasized that the data have been withheld for centres where the number of removed children is less than three, and that the Association does not intend to obtain personal information about children and their families.

In this regard, the Commissioner has notified the Association as follows:

Pursuant to Article 4 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), there is a legal assumption of the existence of a legitimate public interest to know in relation to all information held by public authorities, with the possibility for the authority to demonstrate that in that particular situation there is a contravening overriding interest.

Exemptions from the right to access information prescribed by articles 9, 13 and 14 of the Law are not absolute and do not automatically lead to the denial or limitation of exercise of rights without prior weighing the contravening interests and potential adverse consequences, in accordance with Article 8 of the Law.

In relation to the information in question, the Commissioner is of the opinion that it would be very difficult to prove that, the publication of the names of centres for social work which have temporarily removed children from their families due to safety reasons as well as statistical data on the number of the children at each centre, violates the right to privacy of children and their families or any other important good of a person.

Statistical and anonymized data do not constitute personal data within the meaning of Article 3 of the Law on Personal Data Protection ("Official Gazette of the Republic of Serbia " Nos. 97/08 and 104/09-other law, 68/12- decision of the Constitutional Court, and 107/12) and their publication, as a type of data processing, is not in contravention to this Law.

Regardless of the number, identification of the children removed from families by communicating the number of such cases in the territory of one of the centres for social work, and thereby violation of privacy of the children and their families, would hypothetically be possible only based on the comparison of the data with previously disclosed other information on the same cases, and it is a matter to be assessed and proven on a case by case basis.

No. 011-00-00629/2013-02 dated 27 September 2013.

Public authorities posed the question whether the listing of e-voting information, which includes information on how individual members of the Assembly voted on the various items on the agenda as well, constitutes information of public interest and whether there is a legal obligation of the City Assembly to provide the information at the request of journalists. The refusal of the request is reasoned by stating the manner in which the publicity of Assembly sessions is ensured and that the disclosure of listings of voting information would adversely affect the independence of councillors and their free will.

The Commissioner's answer, inter alia contains the following:

The listing as a document containing information on e-voting in the City Assembly constitutes information of public interest within the meaning of Article 2 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), in respect of which, it shall be deemed that a justified public interest to know exists pursuant to Article 4 of the Law, unless the public authority concerned proves otherwise. It follows that the Law allows the public authority to prove that in a particular situation there is also some other legitimate interest that opposes the interests of the public to know, and that the interest prevails, while there is an obligation to issue a reasoned ruling on rejecting of the request.

Bearing in mind possible reasons to limit the right to free access to information which are stipulated in Articles 9, 13 and 14 of the Law, whose mere existence does not automatically lead to limitation of rights without weighing the competing interests pursuant to Article 8 of the Law, the Commissioner is of the opinion that it would be very difficult to prove that accessing information from the listing of voting at the City Assembly sessions constitutes an infringement on one of the interests which are protected by the said limitations (national security, economic interests, court investigations, life, health, safety, privacy etc.).

Bearing in mind that this concerns the public office holders, arguments about the possible impact on the independence of councillors and their free will, cannot be the reason for potential restrictions on the right with reference to invasion of privacy and other personal rights, in the sense of Article 14 of the Law, considering that in that particular situation there is room to apply the exemptions set out in paragraph 2 of this Article (if it is a person, an occurrence or event of public interest, especially in case of a holder of public office or political figures, insofar as the information bears relevance on the duties performed by that person). Therefore, the fact that a councillor might be confronted because of the way he/she voted, cannot be the reason for withholding information about voting, because the performance of any public function, or performance of any public work, implies a certain responsibility that comes from acting in the name the authority which he/she represents, which significantly reduces the level of privacy in comparison to "ordinary" citizens.

The position that listings of voting information of councillors at the City Assembly sessions should be made available to the public is supported by the fact that the information is related to the exercise of public or political office, that the municipal, or city assembly sessions are public pursuant to the Self-Government Law except in exceptional situations, and that citizens undisputedly have an interest to know what position their elected representatives take when deciding on issues which are of vital importance for their livelihood.

Facts presented by a public authority in support of the argument against making available lists of voting information to the journalists, that the publicity of sessions is ensured in another manner, have not been provided for under the Law as possible reasons to limit the right of access. Implementation of Article 10 of the Law pursuant to which a public authority does not have to allow an applicant to exercise his/her right to access the information of public importance, if such information has already been published and made accessible in the country or on the Internet, is possible only if the information from the listing of voting information, at the time the request was filed, was accessible to the applicant, i.e. had already been published on the Internet.

No. 011-00-00540/2013-02 dated 13 August 2013

The concept of information of public importance pursuant to the Serbian 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) entails that the information is embodied, i.e. contained in a document, regardless to the type of information medium. If there are no documents containing amendments to legislation, (working version, pre-bill, bill and the like) pursuant to the provisions of Article 16, paragraph 1 of the Law, a public authority shall upon the request for information inform the applicant of that fact. Strategic documents, action plans, work programmes and the like which contain information on the dynamics of adoption or amendments of legislation, can also be understood to be public information pursuant to this Law.

Apart from that, even if amendments to a law have not yet been compiled as a document, i.e. are not formally information of public importance within the meaning of Article 2 of the Law on Free Access to Information of Public Importance, basic decency and principles of good administration require the public authority to notify the applicant of the current stage of the amendment process of the law.

In the case of EC Regulation 1049/2001, the European Court of Justice adopted a broader interpretation of the concept of public information, in the sense that the interpretation that a decision of a requested institution refers only to access to documents as such is wrong. Recent legislation on access to information also refers to access to information held by public authorities, regardless of whether it is contained in a document/documents. In addition, pursuant to Serbian legislation, the fact that documents are in the preparation or compilation stage, itself is not a reason for exclusion from access. Access to such documents could hypothetically be limited before their issuance or adoption by applying Article 9, paragraph 2 of the Law, only provided that this could adversely affect the decision-making process, undermine the proposed legislative solutions and the like.

Bearing in mind the definition of the term "information of public importance" under Article 2 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), civil servants' business cell phone numbers are information of public importance, as such information was created in the work or related to the work of a public authority, that it is certainly contained in a document connected to records or payment of costs, and it is in possession of the given authority , and the public interest to know it, within the meaning of Article 4 of this Law, is always deemed to exist, unless proven otherwise by that public authority.
Starting from the fact that this is about business phones of civil servants which, in performing their duties act on behalf of the authority, or exercise authority, that costs of business phones are certainly pay from the budget, and that the nature of business of tourist inspection often requires emergency acting and action outside regular working hours, and that these servants are in managerial positions, it is hardly possible to challenge, within the meaning of this Law, that the public has no right to access this information, simply because they are personal data.
The Commissioner's principled position that contact information of civil servants, their names and the duties they perform, should be available to the public, is based on the provision of Article 14 (1) 2) of the above mentioned Law, stipulating exemptions from the right to privacy, where such information relates a person, phenomenon or event of public interest, especially in case of holder of public office or political function, insofar as the information bears relevance on the duties performed by that person.
(Abstract, Commissioner's Opinion, No.: 011-00-00570/2011-03 dated 09.12.2011)

Views and opinions with regard to implementation of law given by public authorities, either at request of a person or expressed through individual decisions, are unquestionably very important information for which there is the public interest. This is why this has to be made available to all, even without explicit request. This is binding by provisions about publication of information booklets from Article 39. of the Law on Free Access to Information of Public Importance, as well as point 2. paragraph 2. point 11) of the Guide for Publication of Information Booklet of State Bodies ("Official Gazette of RS " No. 57/05), according to its provisions, issued opinions of authorities, made decisions, appeals and similar are obligatory contained in Information Booklet of a state body.
Acting of a state body in accordance with these legal obligations and publication of said types of information in its Information Booklet and its regular update as per provisions of the Guide, the question of abuse of information obtained for commercial proposes by publishing houses and public journals, as a requester of information, would be pointless. At the same time, the principle of equality of access to information of public importance would be adhered to.
(Abstract, Commissioner's Response to a public authority No.  011-00-7  /2006-03 dated 29.03.2006)

Content of the right to have information, according to Article  5 of the Law on Free Access to Information of Public Interest  ("Official Gazette of the  RS" no.120/04) covers the right of the applicant requesting  information, to be told if the body in power owns certain information of public importance, that is, if it is otherwise available to that body, then the right to make that information available to the applicant, by enabling him to gain insight into documents containing the information,  the right to have a copy of that  document, as well as the  right to have that document copy delivered to him, on his request, by mail, fax or in some other way. Simultaneously, as information of public interest in the sense of this Law, according to Article 2, one understands every information at disposal of the body in public power, that has been created during work or in relation to the work of that body in power, contained in a certain document, pertaining to everything about which the public has justified interest to know.

If the  content of the submitted request pertains to a copy of the existing document  which the body in power has,  the right of the applicant is undisputable according to the Law on Free Access to Information of Public Importance, to have the copy of that document with requested information be put at his disposal according to that Law.

If it is about request for issuing Land Registry Certificates or about request for issuing some other public ID, it is not a request for accessing information of public importance, because issuing of an ID means its compilation based on the data from public registries, following a specially arranged procedure.

(From the reply of the Commissioner to the body in power no. 07-00-232/2- 2005-03 dated November 25, 2005 and no. 011-00-18 /2005-01 dated November 25, 2005)

Information from Reports on funds spent on business trips abroad are information of public importance within the meaning of the Art. 2 of Law on Free Access to Information of Public Importance («Official Gazette of the RS» No. 120/04), since they arise in relation with the work of government body and are contained within a certain document.

In principle, all information regarding the disposal of budgetary funds, including those on funds spent on business trips, is information of public importance and must be available to the public.

The quoted data, i.e. information on persons who travelled abroad, on place, duration and purpose of the trip, way of payment of charges, do not belong by themselves to the category of information the access to should be denied to. However, if along with those, the requested document contains also some other information which penetrate into privacy matters (e.g. bank accounts numbers, residence addresses and the like), which might be restricted pursuant to the provisions of the Art. 14 of the Law on Free Access to Information of Public Importance, it would be necessary to act according to the provision of the Art. 12 of that Law and withdraw such information at issuing a copy of the solicited document.

(The answer is contained in the letter sent to a government body, no. 06-00-29/2006-04 of 09.05.2006.)