Should the Ministry enable access to information regarding inspection controls, that is, Inspectors' minutes, according to the Law on Free Access to Information of Public Importance, having in mind the provisions from Article 32 of the State Administration Act („Official Gazette of the RS" no.s 20/92...49/99) according to which the Inspector is obliged to keep as a business secret data discovered during supervision?
General attitude of the Commissioner regarding the quoted question is as follows:
The Ministry here represents the first degree body that in this administrative matter about availability of information of public importance should as first evaluate the basis of the submitted application, based on specific facts, taking care of the following:
The information contained in Inspectors' Minutes are doubtlessly the information of public importance, in the sense of Article 2 of the Law on Free Access to Information of Public Importance („Official Gazette of the RS " no.s 120/04 and 54/07), because they have originated from the work of the state authority and are contained in a certain document, for which the public has justified interest to know. This Law in Articles 9, 13 and 14 also prescribes conditions and reasons due to which certain information can be limited, according to the provision of Article 8 of the Law, in order to protect some superior legitimate interest.
So, Article 9 point 5 envisages the possibility to decline the requestor the right to freely access information of public importance, if that would make accessible a document for which the regulations or official enactments based on law have determined to be kept as state, official, business or other secret; that is, which is available only to a certain circle of people, and because of which disclosure difficult legal or other consequences could occur for the interests protected by the law, dominating the interest for accessing the information. The same possibility has been envisaged in point 2 of the same Article, besides else, in case when this would endanger, hinder or aggravate discovery of a criminal act, proceeding with the legal actions or other legally regulated procedure.
That means that confidentiality label is not the only and sufficient condition due to which a body in power could decline access to requested information in order to protect the dominant legitimate interest (state security, health, privacy, proceeding with the legal action or other procedure), but it is necessary to determine if that interest would be seriously violated by accessing the information.
Specifically, one should determine if due to disclosure of information from the Inspection Supervision Minutes, which otherwise represent a public document, heavy legal or other consequences might derive for the interests protected by the law, in the sense of quoted Article 9 point 5, and if those interests dominate the interest for accessing information, in the sense of Article 8 of the same Law. The same pertains also to the reasons from point 2 of this Article.
The same principles are expressed for instance also by the Council of Europe Ministerial Committee's Recommendation, R. no.2002, speaking about the „need to avoid allowing the document secrecy to automatically disable insight into that document in the future", and that the body in power acting according to the request of the entity requesting the information must assure itself that the conditions for that document's secrecy have really been completed, by application of „interests' balancing" test.
It is obvious that there would be no dillemas in actions of the authorities, if the provisions of the Law on State Administration, to which the Ministry points out in its letter, have been harmonized with the Law on Free Access to Information. However, even at the current state of affairs such dilemmas are redundant, having in mind that the Law on Free Access to Information of Public Interest lex specialis regarding the matter of availability of information of public interest, which is also based on adequate international documents, declarations and recommendations.