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)