The Law on Free Access to Information is mostly used by ''ordinary'' citizens, whereby making an important contribution to the control of authorities. However, the awareness of the right to personal data protection is not good, in fact it is far from satisfactory, says the Commissioner Rodoljub Sabic, in a conversation with Vojislav Tufegdzic.
Following eight years of its inception, the Office of the Commissioner for Information of Public Importance and Personal Data Protection has finally been allotted adequate working premises by the Government of the Republic of Serbia. According to the Commissioner, Rodoljub Sabic, this will allow for the employment of the required number of staff to increase the efficiency of the Office. ''The Government has, especially having in mind the view of the previous Government on the issue, made a very concrete step forward which is the main prerequisite to increase the efficiency of the Commissioner's Office", says Sabic, adding that numerous citizens are addressing the Commissioner, and that there are more than 25 000 registered formal cases at this moment, about 3 500 of which are active.
What is the predominant profile of complaints?
Of course, not all cases are based on citizens' complaints, however the vast majority is. The number of cases in the field of free access to information, which is more than 21 000, is significantly higher than the number of those in the field of personal data protection, although the latter number is steadily increasing.
In the field of free access to information, most complaints are related to the withholding of information in connection with the handling of public money and goods for various purposes – budgets, budget expenditures, procurements, privatizations etc.
In the field of personal data protection there are no reasons, which are the basis for complaint, that stand out, and in majority of cases proceedings are instituted by the Commissioner himself, ex officio. They are related to all fields – health care, education, insurance, banking, security checks; and to all possible types of data processing – video surveillance, biometrics, direct marketing etc.
Do the citizens understand their rights better nowadays?
I have on several occasions said that, in my view, the most important result of the affirmation and implementation of the Law on Free Access to Information is the fact that the Law is by far, in about two thirds of cases, used by ''ordinary'' citizens. These, of course, include not only complaints filed to the Commissioner, but also thousands of requests filed to authorities at all levels which are more and more approved without the need for the Commissioner's intervention. In this way, citizens provide a very important contribution to the control of the government by the public, which is very important in a democratic society.
The situation is worse with regards to personal data. Awareness of the right to data protection and instruments for its protection is still far from a satisfactory level. However, it has seen obvious improvements. The number of Commissioner's cases in this area may serve as an illustration. In 2009, there were 83 cases, in 2012 there were 1 405 of cases, and in the first seven months this year there were up to 1138 of cases.
The privacy of citizens is often debated, and there are claims that it is primarily threatened by public institutions and enterprises. Have there been any changes here?
In normal conditions, the conversation on threats to a value, privacy for example, entails the violation of a system of established rules. Such a conversation is not easy to lead in our conditions. We would have to, say, have laws which would regulate video surveillance, biometrics, security checks, activities of the private security sector... And we do not have them. We would need to have an Ordinance on the Protection of Sensitive Personal Data, and we do not have it. We have, at least on paper, the Strategy of Personal Data Protection, but it is being forgotten for three years that the Action Plan for its implementation should be adopted. I guess that this should be enough, that I need not give more examples.
The number of omissions and oversights of competent authorities in the course of the previous four, five years are really significant. The current Government shall have to make a significant effort to change the attitude to these issues. Otherwise, we will definitely face problems in terms of negative evaluations in EU negotiations, and which is more significant, in terms of serious risks of violation of rights of a large number of citizens which are guaranteed under the Constitution and the law.
Do the companies in pursuit of their business interests violate the privacy of their employees, and the people which could be ''interesting'' to them in terms of their business activities?
To be succinct - yes! At least many of them do, for sure. There is an impression that citizens do not trust the claims of the police and BIA (Security Intelligence Agency) that they are safe in terms of phone tapping. Are there examples which corroborate these suspicions?
The main problem is that they can only ''believe'' or ''not believe'', and a society that wants to be democratic does not need belief but certainty. We must have mechanisms that guarantee that the secrecy of communication is deviated from only due to reasons and in a manner provided for by the Constitution – on the basis of a court decision. Currently, we do not have such a mechanism and for this reason, more than a year ago, the Ombudsman and I proposed to the authorities a ''package'' of 14 measures which implementation we consider the minimum prerequisite for the establishment of such a mechanism. The ''package'' received strong verbal political support. Concrete support is still pending.
In Serbia, whistleblowers are heroes in the media, and just up to the extent that the media find them interesting. They are mainly left to suffer the consequences of their actions on their own. Can it be expected that they will have a safer status any time soon?
The need to protect the people who speak out about corruption, criminal, irrationality or another type of violation of a public interest in their environment, and who, at least here in Serbia, almost as a rule have a rough time of it because of that, is the topic which has intrigued me for years. I have spoken and written about it on several occasions, and personally I have strived to assist them. In some cases, unfortunately not very often, I managed to do.
Coincidentally, I was in a position to do a bit more, to be the leader of a project resulting in the Model Law on the Protection of Whistleblowers. The Model is the final result of the Project which was implemented for several months and which was realized by the Commissioner with the support of Great Britain and the Netherlands. Project implementation included round tables and discussions in 10 major cities of the Republic of Serbia where contact and quality communication were established with several hundreds of people – whistleblowers, journalists, representatives of the judiciary, representatives of the civil sector, etc. More than 50 NGOs have contributed to the implementation of the Project in various manners.
The Model Law itself was compiled by the Working Group in which I included top experts in different areas of law, who had an opportunity to consult renowned international experts. The Model Law was very highly rated by a number of participants of the large international conference ''Protection of Whistleblowers'', held in Belgrade on 23 and 24 May 2013. One of the distinguished participants of the Conference, Benjamin Buckland (DCAF), said: ''Serbia has got an opportunity to have one of the most progressive laws on the protection of whistleblowers soon". I agree with his opinion and I wish to believe that the Government will agree with it, as well. We will see.
In any case, the Model shall be of use if not to us, than to others. Namely, Transparency International have recently requested us to make available the Project to them because they wish to offer it as a ''matrix'' to other states that do not have such a law.
The Government of the Republic of Serbia has not accepted your amendment to the Bill on Infringements which proposes extension of the statute of limitations. You stated in it that line ministries failed to institute any infringement proceedings in the course of 2011 and 2012, including in case of most drastic infringements, and that those proceedings may not be instituted any longer. How would you describe the successfulness and level of collaboration with the state?
I regret that the amendment was not accepted and I do not understand the reason why. The information I have provided indicates that the offenders have actually been ''pardoned'' in advance. In such a situation, the current level of implementation of the Law on Free Access to Information of Public Importance has been ensured virtually without any contributions that sanctions are supposed to provide to the implementation of a law. It has been ensured by frequent, critical public statements of the Commissioner and in particular by the pressure of the media and the public. This has been necessary and good, however this certainly must not replace the elementary principle of a legal state – that one should take answer for infringements.
I remind you that these infringements by the nature of things are no longer committed by ''ordinary'' citizens, but by officials, i.e. official persons, i.e. persons which have been elected and paid to ensure implementation of legislation. This fact should highlight the importance of their liabilities of any kind, including the liability for infringements. The liability should be the rule, the principle, and its lack due to the status of limitation just a rare exception. Unfortunately, the situation is reverse.
What is the number of enforced binding and enforceable rulings of the Commissioner?
Were there any cases where the Government of the Republic of Serbia had to ensure their enforcement? The success rate of the Commissioner's interventions is over 91 percent. It is indicative that in almost two thirds of cases the Commissioner does not even have to adopt formal decisions, because, after receiving his request for a statement, the authority immediately allows access to previously withheld information. In some cases enforcement is objectively impossible, which is when the authority fails to mention at the beginning of the proceedings that, for example, it no longer holds the document, that the said document has been destroyed, or forwarded to another authority... However, in a certain number of cases, authorities knowingly fail to comply with the Commissioner's orders even though they are legally binding.
The Commissioner is not in charge of the instruments which should ensure enforcement - others are, and unfortunately, they have not been used so far. The Government which has a statutory obligation to enforce the law in order to ensure its implementation has not done so and neither have the line ministries who are to institute infringement proceedings against the offenders. In such circumstances the said success rate, which is significant even according to the criteria of old democratic states, gains on value.
Entrefilet: Murder of a judge is not a state secret
A text containing a claim that the unsolved murder of the judge Nebojsa Simeunovic constitutes a state secret has recently appeared in the newspapers. Based on what?
I find the alleged news very irritating. It is simply unbelievable that something like that got published. At the very least we should have been informed who said that this is a secret, pursuant to which law and on the basis of which legitimate reasons. Almost a decade and a half after that horrible crime we still do not know the truth about it, and on top of that, somebody is spinning a yarn about I do not know what alleged state interests. I find it really hard to see any sense in that.