A municipality requested the Commissioner for Information of Public Importance and Personal Data Protection to issue an opinion on the handling of the request for access to information of public importance where the request relates to information on the agreements related to the disposal of municipal office space since the agreements contain information on renters and whether it is necessary to obtain their prior consent in order to submit the data to applicants, and whether the agreements must be copied considering that there are dozens of them, or how to proceed in order to comply with the Law on Free Access to Information of Public Importance and the Law on Personal Data Protection.

In this regard, the Commissioner has sent a reply in which he expressed a principled stand on this issue:

It is undisputed that the information in the agreement between a municipality and office space tenants constitutes public information, 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 there is a legal presumption of a justified interest of the public to know, pursuant to Article 4 of the Law. The Law actually gives an opportunity to the public authority to limit or deny access to the information when it determines and proves that there is a predominant legitimate interest referred to in Articles 9 and 14 which would be violated if access to information is granted.

Having in mind that this is very specific information regarding the disposal of municipal office space, i.e. disposal of public resources in case of which there is always a strong public interest to know, including the names of persons with whom the authorities conclude legal transactions, it would be difficult for an authority to prove the contrary under the guise of protection of the right to privacy, given that these situations or events are covered by the exemptions to the right to privacy under Article 14, paragraph 1, item 2 of the Law and that persons doing business with the state may not expect the same level of privacy protection as ordinary citizens.

Bearing in mind that lease agreements for office space contain other personal data which the public should not have an interest to know and which processing would be excessive, i.e. disproportionate to the purpose, in acting upon a request for access it is necessary to protect and make unavailable the personal data from the agreement which general availability could violate the right to privacy, for example information on residence address, Personal Identification Number [JMBG], no. of ID card and the like, pursuant to Article 12 of the Law on Free Access to Information of Public Importance regarding the extraction of information. Protection of the data is required under the principle of proportionality, which is one of the basic principles of personal data processing referred to in Article 8 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, 107/12), since the disclosure of and/or otherwise making available of information, i.e. personal data, constitutes personal data processing in terms of Article 3 of the Law on Personal Data Protection.

Given the above, i.e. the possibility for a public authority to protect in the above presented manner the personal data which processing would be excessive and infringe on privacy, the public authority is not obliged to obtain the consent of concerned persons for processing of their data before submitting the copies of a lease agreement to the applicant.

The manner of exercise of the right to access, pursuant to the Law shall be determined by the applicant, therefore the obligation of submitting a copy of the agreement depends on the content of the request , i.e. whether only a permission to examine the agreement is sought, a copy or both. In addition, the agreement number, i.e. the mere volume of information required shall not be cause to deny the exercise of applicant's rights, by recalling, for example, the abuse of the right referred to in Article 13 of the Law, which provisions must be interpreted extremely restrictively, i.e. to be used only in situations when the request manifestly contains an unreasonable task for a public authority, i.e. constitutes an abuse of the public authority.

Number: 011-00-00333/2013-03 dated 15 May 2013