Information contained in final court decisions undoubtedly presents information of public importance as stipulated in Article 2, Paragraph 1 of the Law on Free Access to Information of Public Importance ("Official Gazette of the RS" no. 120/04, 54/07, 104/09 and 36/10) hence it is created in the work process of the Court, as a state authority as stipulated by this Law, and embodied, i.e. contained in certain documents in the possession of the Courts and relates to issues of which the public has a justifiable interest to be aware. The existence of such an interest is always assumed, as stipulated in Article 4 of the Law, and the state authority has a legal obligation to, in the event of denying this right when protecting some other right of prevailing interest, prove such a fact. In the case of final court decisions, such a situation would be very difficult to conceive.
Accessibility of information of public interest, which also implies to information contained in court decisions, in compliance with the above stated Law, is ensured by two processes. The first is on request of the entity seeking information, according to the procedure stipulated by this Law, which also establishes the procedure for protection of this right, by lodging of complaint to the Commissioner, or by filing of administrative dispute to the Administrative Court, when public authorities stated in Article 22, Paragraph 3 of the Law are concerned.
In the case of information which has already been publishes and is available in the country (in public media, publications, etc.) or is on the internet, the state authorities do not have an obligation to forward it, upon request, to the entity seeking the information, but the are obliged to inform the entity of where such information can be found, i.e. where and when the requested information has been published, except if this is of common knowledge.
The second is for the state authority to publish the information derived during is work process or related to it on a proactive basis, so that everybody has access to it on the Internet presentation of the relevant body without any special request, in compliance with Article 39 of the Law, in the manner stipulated in the Commissioner's Instructions for the publishing of Information Memorandum, („Official Gazette of the RS“no. 57/05). This legal obligation also pertains to Courts.
Related to information of public importance, the question of copyright, in the Commissioner's opinion, can not be raised because this information is the product of the public sector, derived from pubic authority performance, that is to say from the execution of public functions. Also, the practicing of right to access to this type of information is based on the principle of equality and non-discrimination of journalists and public media (Article 6 and 7 of the Law).
Regarding the use of electronic edition of the Court Practice Bulletin, that is to say the exclusive right of a certain company, a question is raised regarding the so called re-use of information. Related to this the Directive 2003/98 ЕC on the re-use of public sector information, states the following: public sector bodies should be encouraged to make accessible for re-use all he documentation they posses. In the process of establishing of re-use of documentation principle, the public sector bodies should respect the rules of competition, avoiding conclusion of exclusive agreements with private partners, i.e. conditions for re-use of information should be nondiscriminatory for similar re-use categories, and prevention of a free exchange of information between public sector bodies for the purpose of performance of public functions should not be allowed.
(Abstract from the Commissioner's reply to the state authority, no. 011-00-150 /2010-03 dated June 6th, 2010)
