Access to Information Contained in Lists of Disability Allowance Beneficiaries
The Association of Disabled Persons filed a request for free access to information of public importance to the city administration requiring photocopies of lists of beneficiaries of personal disability allowance for war and peace veterans and of beneficiaries of family disability allowance for the purpose of reconciliation of records.
Acting on an appeal filed by the Association against the failure of public authorities to act, in accordance with Article 236 of the Law on General Administrative Proceedings, the Commissioner assessed whether the request is justified and found that it should be rejected on the following grounds:
What is undisputable is that the appellant’s request submitted to the public authority pertains to information created in operations or in connection with operations of the public authority and that the public authority does not deny it holds such information, as well as that such information as information of public importance within the meaning of Article 2 of the Law on Free Access to Information of Public Importance is a legitimate object of interest of an appellant or the public.
On the other hand, the type of information in this specific case is such that it undoubtedly contains personal data within the meaning of Article 3 of the Law on Personal Data Protection (“Official Gazette of the Republic of Serbia”, Nos. 97/08 and 104/09-other law), the access to which could violate the right to privacy and other personal rights, and which can be the reason to restrict the right to free access to information of public importance in accordance with Article 14 of the Law on Free Access to Information of Public Importance.
Article 14 of the Law on Free Access to Information of Public Importance stipulates that public authorities will not enable a requester to exercise the right to access information of public importance if it would thereby violate the right to privacy, the right to reputation or any other right of a person, except in the cases referred to in items 1), 2) and 3) of the said Article, i.e. if a person for whom information is requested gave his/her consent, if the information pertains to a person, an occurrence or an event of interest for the public or if a person’s behavior, particularly regarding his/her private life, gave rise to a request for information.
Taking into account that the appellant in this case requested photocopies of lists of beneficiaries of personal disability allowance for war and peace veterans and of beneficiaries of family disability allowance for the purpose of reconciliation of records, the Commissioner found that in this specific case the information requested is personal data within the meaning of the Law on Personal Data Protection, more specifically particularly sensitive data referred to in Article 16, paragraph 1 of this Law which can be processed only with express consent from a person to whom they pertain or in cases stipulated by he law, and since the quoted exception referred to in Article 14 of the Law on Free Access to Information of Public Importance cannot be applied, access to this information should not be allowed. This Commissioner’s opinion would not jeopardize the requester’s right to access information pertaining to funds from the budget paid as disability allowance and similar information, i.e. depersonalized lists containing the amounts of payments, which was obviously not an object of interest of the appellant in this specific case; the object of interest were personal data on beneficiaries for record-keeping purposes.
(from the Commissioner’s ruling, No.:07-00-00264/2010-03 of 10 February 2011)
Accessibility of Final Court Decisions and Legal Opinions and Copyrights
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)
Question of possible misuse of right to access information of public importance
Talking about possible misuse of right to access information of public importance, Article 13 of the Law on Free Access to Information of Public Importance (Official Gazette of the RS no.120/04), it should be assessed by the first instance body in legal procedure following the submitted specific request, before the Commissioner as the second instance body, taking into consideration all of the available facts and circumstances in relation to the request. The Commissioner expresses his attitude on this issue in his decision based on possible complaint.
In general, we can, however, agree that a question of abuse of the right to free access to information of public importance should be asked, whenever the requirements are too vague or they cover extremely bulky documents, or necessitate disproportionately big efforts of the bodies observing the procedure, or unreasonable and frequent requests hinder normal work of those bodies, and at that time the body in power is making extra efforts in the procedure and showing readiness to present the requested information. However, having in mind the possibility of potential abuse of provisions of Article 13, they should be interpreted in extremely restrictive manner. As an example, in comparative law, such limitations of rights to free access to information are applied only extremely, but some national legislations do not even know them.
(The answer is contained in the letter sent to a government body, no. 011-00-37/2007-03 of 23.04.2007.)
Free access to information contained in a sale agreement to a third party who has not identified itself as a minority shareholder
As regards the right of a third party who has not identified itself as a minority shareholder to access information contained in a sale agreement concluded between the parties to a privatization process, one should keep in mind the provisions of Article 4 of the Law on Free Access to Information of Public Importance (Official Gazette of the Republic of Serbia No. 120/04), under which there is a legal assumption of justified importance of every information seeker to access public information and it is incumbent upon public authorities to prove the opposite, if they deem it to be the case. A public authority does not have the option of denying access by proving that the public does not have justified importance to know the information requested if such information concerns cases of jeopardizing or protection of public health and the environment.
A sale agreement concluded between the parties to a privatization process, as a document produced in connection with the Agency's operations, is deemed to be information of public importance within the meaning of Article 2 of the Law on Free Access to Information of Public Importance.
The confidentiality mark which is, as you say, generally attached to such agreements is not in itself a sufficient reason to deny access to information contained therein.
In order to preclude or restrict free access to information of public importance, a public authority must be able to prove that this is done to thwart a serious violation of a predominant importance under the Constitution or under a law, as set out in Article 9 of this Law, or to protect the privacy and other personal rights in accordance with Article 14 of the Law.
(The answer is contained in the letter sent to a government body, no. 011-00-23/2006-03 of 20.06.2006.)
The obligation of a governmnet body to provide access to documents issued by another public institution
From the aspect of implementation of this Law, whether a certain authority was in charge of producing a document is not the key issue. The very fact that a public authority holds a document in connection with its operation implies an obligation for that authority to provide access to that document when requested.
The issue of providing access to a document in possession of one public authority and drawn up by another public authority can be relevant if the creator of the document marked it as confidential or secret; in such cases, it is logical that the creator should remove any confidentiality marks and make the document available if the reasons for denying access, as set out in the Law, are not met.
The Commissioner understands difficulties which have some governmemt bodies because of the volume of required documents and because of the limited human and other resources available for processing the requests. These problems can to a certain extent be alleviated by efficient and effective compliance with the provisions of the Law. However, please note that the Commissioner cannot influence the choice of the addressee made by the information seeker in the event that a certain piece of information or a certain document is available to more than one authority. In this regard, the Commissioner can only continue calling on all public authorities to abide by the Law or to take the consequences set out in the Law, without any exceptions.
The answer is contained in the letter sent to a government body, no. 011-00-23/2006-03 of 20.06.2006.)
Question is it a report on funds spent on business trips abroad considered as information of public importance within the meaning of the Law on Free Access to Information of Public Importance, and if this is so, is the government body in that case obliged to provide detailed information with respect to the name and surname of persons who travelled on business, their workplace, employment, total length of service, place, duration and purpose of the business trip and way of payment of travel costs and other.
Information from Reports on funds spent on business trips abroad are information of public importance within the meaning of the Art. 2 of Law on Free Access to Information of Public Importance («Official Gazette of the RS» No. 120/04), since they arise in relation with the work of government body and are contained within a certain document.
In principle, all information regarding the disposal of budgetary funds, including those on funds spent on business trips, is information of public importance and must be available to the public.
The quoted data, i.e. information on persons who travelled abroad, on place, duration and purpose of the trip, way of payment of charges, do not belong by themselves to the category of information the access to should be denied to. However, if along with those, the requested document contains also some other information which penetrate into privacy matters (e.g. bank accounts numbers, residence addresses and the like), which might be restricted pursuant to the provisions of the Art. 14 of the Law on Free Access to Information of Public Importance, it would be necessary to act according to the provision of the Art. 12 of that Law and withdraw such information at issuing a copy of the solicited document.
(The answer is contained in the letter sent to a government body, no. 06-00-29/2006-04 of 09.05.2006.)
Question of proving importance
According to the Law on free access to information of public importance («Official Gazette of the RS» No. 120/04), a justified importance of the public to know, in principle, exists as for all information at the disposal of the public authorities. The enquirer does not have to evidence his importance to know certain information, nor to prove justifiability of his importance. According to the Art. 15 section 4 of the Law, the government body must not ask the enquirer to state his reasons for the request submission.
If the government body withholds to the enquirer access to certain information, it's duty is to prove that it is in the concrete case justifiable in order to protect the priority importance. Such reasons may be: security reasons, defense of the country, revealing of the offender, conduction of court proceedings, protection of privacy and others, in any case - reason explicitly provided for under the Law.
It is in particular necessary to emphasize that under the Art. 4 of the Law it is laid down that the public authorities must never withhold access to information relating to endangering and protection of life and health of people and environment. Therefore, with respect to such information, the authorities are not allowed to assert that the public does not have justifiable importance to know such information.
From the press release of the Commissioner of 4 July 2005
Question of the relation between the Law on Free Access to Information of Public Importance and other laws
The Commissioner for Information of Public Importance in his letter addressed to the Government of the Republic of Serbia indicated that within the short period of time, following the draft Law on Police, another law came into the procedure of the National Assembly, proposed by the Government of the RS, the statutory solutions of which are in contravention with solutions set forth under the Law on Free Access to Information of Public Importance. In his press release of 26 October 2005 Commissioner said:
„Like similar laws in democratic world, our Law also provides for that citizen, requiring information, does not have to prove his importance about it.
Under provisions, such as the one of the Art. 5 of the draft Law on Police and Art. 153 of the draft Law on Infractions, the obligation of proving "justifiable" or "legal, or "legally based" or "reasonable importance", may cause unnecessary confusion, thus opening possibilities for the restriction of the rights of citizens.
It would be much better those proposals on new laws, relating to access to information, contain provisions addressing the Law on Free Access to Information of Public Importance, instead of controversial solutions. It is difficult to understand the logic behind proposing of such solutions, since there could be no doubt that in case of conflict the priority must be given to the Law on Free Access to Information of Public Importance, as lex specialis for the issues in question. Besides, the Declaration on Availability of Information, jointly adopted in December 2004 by Special Referee of the United Nations for Freedom of Opinion and Expression, representative of the OESC for freedom of media, and Special Referee of the Organisation of American States for Freedom of Expression, explicitly states, that in case of contravention, the Law on Availability of Information has priority over the all other law.
All the government bodies have to contribute to affirmation of democratic principles contained within the Law on Free Access to Information of Public Importance, in particular the Government and National Assembly".
From the press release of the Commissioner of 26 October 2005
Procedure of government bodies in case of already published information
As for information already available to the public, under the provision of the Art. 10 of the Law on Free Access to Information of Public importance („Official Gazette of the RS" No.120/04), it is laid down that the authority is not obliged to enable the applicant to exercise his right to access to information, if information in question is already published and available in the country or at Internet, but the government body in that case is obliged to answer the request of the applicant, to indicate the information vehicle or number of the official gazette where information was published, save for it is generally known.
The notion "generally known", within the meaning of these provisions, aside from the conditions regarding availability to a large number of citizens, certainly depends on a range of concrete circumstances, such as, for example, on who the enquirer is, is the enquirer a person to whom the official gazettes are available at work place due to the nature of the job he performs, if the person is in employment, then, on his educational level, profession etc. The circumstance that the applicant himself referred to the provision as a possible information source, quoting the official gazette which had published it, indicated a possible availability of information to him, and in such a case, the government body will in its reply to the enquirer only confirm where the information is contained and published. This holds true provided that the said regulation actually contains the information required in the request. Such a situation, however, does not discharges the public authorities from proceeding, i.e. providing answer to the enquirer.
In case when general deeds of the enterprise or other person are concerned, which are not officially published, and at the time of requiring cannot be found, or are not available on other information vehicle (website, advertisement board and the like), information cannot be withheld referring to the provisions of the Art. 10 of the Law, with explanation that such general deeds used to be displayed at advertisement board of the enterprise prior to entering into force.
(The answer is contained in the letter sent to a government body, no. 07-00-76/2005-04 of 30.09.2005. and no. 011-00-18/2005-01 of 25.11.2005.)
Does the right to access information of public importance understand the right to have Land Registry Certificates?
Content of the right to have information, according to Article 5 of the Law on Free Access to Information of Public Interest ("Official Gazette of the RS" no.120/04) covers the right of the applicant requesting information, to be told if the body in power owns certain information of public importance, that is, if it is otherwise available to that body, then the right to make that information available to the applicant, by enabling him to gain insight into documents containing the information, the right to have a copy of that document, as well as the right to have that document copy delivered to him, on his request, by mail, fax or in some other way. Simultaneously, as information of public interest in the sense of this Law, according to Article 2, one understands every information at disposal of the body in public power, that has been created during work or in relation to the work of that body in power, contained in a certain document, pertaining to everything about which the public has justified interest to know.
If the content of the submitted request pertains to a copy of the existing document which the body in power has, the right of the applicant is undisputable according to the Law on Free Access to Information of Public Importance, to have the copy of that document with requested information be put at his disposal according to that Law.
If it is about request for issuing Land Registry Certificates or about request for issuing some other public ID, it is not a request for accessing information of public importance, because issuing of an ID means its compilation based on the data from public registries, following a specially arranged procedure.
(From the reply of the Commissioner to the body in power no. 07-00-232/2- 2005-03 dated November 25, 2005 and no. 011-00-18 /2005-01 dated November 25, 2005)
The obligation of a governmnet body to provide access to documents forwarded to competent bodies which perform supervision
With respect of possibility of discharging public authorities from the duty to forward to the enquirer information, which, according to a certain regulation is already being forwarded to competent bodies which perform supervision, regular control and take appropriate measures, the Law on Free Access to Information of public importance does not envisage the possibility of exclusion or restriction of access to information for that reason only.
(The answer is contained in the letter sent to a government body, no. 011-00-18/2005-01 of 25.11.2005.)
Does the Law on Free Access to Information of Public Importance pertain to Belgrade University and to the other institutions performing educational activity according to the Law on Public Services and Special Laws?
The government body within the meaning of the Art. 3 of the Law on Free Access to Information of Public Importance ("Official Gazette of the RS" No.120/04), aside from being a government body, is also a legal entity, established or financed in full or mostly by the government authority.
Pursuant to that, Universities and other educational establishments founded by the Republic and being finances fully or mostly from the budget of the Republic of Serbia, are public authorities within the meaning of the Law on Free Access to Information of Public Importance, and this Law does apply to them.
(The answer is contained in the letter sent to a government body, no. 011-00-12/2005-03 of 18.10.2005.)
Is there an obligation by the state body regarding compilation of the information booklet about operations, in a situation when that body has a web-site presentation, which is considered to be more rational solution?
The existence, form and contents of Information Booklet are explicitly defined by the provisions of the Art. 39 of the Law on Free Access to Information of Public Importance. Under the same Article, the obligation of the government body to enable the person concerned to have insight into the Information Booklet, or to furnish him with a copy of it.
Accordingly, the Law hasn't left it to the will of the body in power to evaluate if this document shall be compiled and published, or to evaluate the issue regarding rationality of such solution, but it has prescribed that as express legal obligation of the state body.
(The answer is contained in the letter sent to a government body, no. 021-01-5/2006-03 of 02.02.2006.)
Does the obligation to compile information booklet on operations pertain to public utility company of the City, that is, of the Municipality?
The obligation of producing Information Booklet on Work under the Art. 39 of the Law on Free Access to Information of Public Importance, laid down for the authorities under the Art. 3, section 1, subsection 1 of this Law.
The government bodies referred to under the Art. 3, section 1, subsection 1 of the Law on Free Access to Information of Public Importance ("Official Gazette of the RS" No. 120/04), within the meaning of this Law, are the government authorities, local self-government bodies and organisations, empowered to execute public competences.
In our legal system, vesting of the public competences in our legal system is performed exclusively by the Law.
Under the Art. 2 of the Law on Public Utility Service ("Official Gazette of the RS" no. 16/97 and 42/98), municipality, city, i.e. the City of Belgrade regulate and provide conditions for carrying out of public utility service operations and their development.
According to the Law on Local Self-Governance ("Official Gazette of the RS", No. 9/02, 33/04 and 135/04), regulation and providing of carrying out public utility service and their development are operations which originally fall within the scope of activities of the municipality, and are not regarded as vested operations.
On the basis of the mentioned afore derives, that Public Utility Enterprise is not a government body within the meaning of the Art. 3, section 1, subsection 1 of the Law on Free Access to Information of Public Importance, and that it does not have a statutory obligation to publish Information Booklet on Work under the Art. 39 of that Law.
Certainly, it does not imply that the said enterprise, as public authority body within the meaning of the Law on Free Access to Information of Public Importance, should not, for the purpose of providing information to the public, i.e. customers of its services, release as much information as possible on its work, especially on the procedures for deciding rights and obligations of citizens and legal entities, as customers of the utility services, and all other information the public has got importance to know.
(The answer is contained in the letter sent to a government body, no. 011-00-21/2005-03 of 19.12.2005.)
Does The Directorate for Child and Social Welfare and Primary Health Care Head of the City of Nis has the obligation to prepare and publish the information bulletin?
The obligation to prepare and publish the information bulletin within the meaning of Article 39 of the Law on Free Access to Information of Public Importance ("Official gazette of the RS" no.120/04) is prescribed for public authorities within the meaning of this Law. Under Article 3, paragraph 1, sub-paragraph 1) of the Law they include: government authorities, territorial autonomy authorities, self-government authorities and organisations vested with public authority.
Under Article 25 of the Law on Local Self-Government ("Official Gazette of the RS" no. 9/02, 33/04 and 135/04), the bodies of the municipality, as the self-government unit are: municipal assembly, mayor and municipal council. Under Article 21 of the same Law, the provisions referring to the municipality, shall apply to the city, unless otherwise provided by the law.
On the basis of the above provisions, the obligation to prepare an activity information bulletin prescribed by the Law on Free Access to Information of Public Importance for local self-government bodies, i.e. municipalities or the corresponding city bodies (which, within the meaning of this law are considered to be government authorities), refers to the bodies of local self-government: city municipality, mayor and city council.
Within this meaning, there is no special obligation of these authorities to prepare their own information bulletins. However, since this obligation refers to the mayor, who, by the virtue of his office, directs and harmonises the operations of the municipal administration and ensures that the delegated activities and decisions of the municipal assembly are implemented, the information on the activities of the city administration must be contained either in a joint or separate or separate information bulletin, which is an organisational or technical issue.
If, under the Charter of the City of Niš, the Directorate for Child and Social Welfare and Primary Health Care is a separate city administration body, within the meaning of the Law on Free Access to Information of Public Importance, it is a separate public authority which is obligated to act upon the requests for access to information.
(The answer is contained in the letter sent to an aplicant, no. 011-00-5/2006-03 of 09.03.2006.)
Issue of access to information with the authority's opinion provided on the application of regulations
Positions and opinions relating to the application of the law provided by the authorities upon the request of a person or expressed through adopted individual decisions are, undoubtedly, very important pieces of information of public importance. This is the reason why they must be made available to everybody even without a specific request. This is mandated by the provision on the publication of information bulletin referred to in Article 39 of the Law on Free Access to Information of Public Importance, as well as Section 2, paragraph 2, sub-paragraph 11) of the Instructions for the Publication of Information Bulletin on the Activities of a Government Authority ("Official Gazette of the RS" no.57/05), under which the issued authorities' opinions, decisions, appeals etc. shall be a mandatory element of the contents of the information bulletin on the government authority's activities.
By way of the body`s action in accordance with the above legal obligation and publishing of the above types of information in its activity information bulletin and its regular updating according to the provisions of the Instructions, the issue of the abuse of obtained information for commercial purposes by publishing companies and the media, as applicants for information, would be rendered irrelevant. At the same time, the principle of equality in access to information of public importance would be honoured.
(The answer is contained in the letter sent to a government body, no. 011-00-7/2006-03 of 29.03.2006.)
The obligation of the public enterprises to expose in public data on debts of citizens for rendered public utility services (name and surname of citizens and amount of debt)
Data on debts of citizens for rendered public utility services might be deemed information of public importance. However, the category of information concerned is information which penetrate into privacy and for that purpose they are subject to certain limitations pursuant to the provisions of the Article 14 of the Law on Free Access to Information of Public Importance.
In accordance with that, out of data which are being communicated to the public, should be excluded such data, on the basis of which might be identified citizen(s), save for upon his/their explicit consent (which is objectively less possible) or when he/they by his/their behaviour gave a reason for such information to be released (e.g. by asserting that his/their statutory obligations are settled regularly, denying the existence of debt towards the public enterprise concerned and the like).
The said limitations under the Art. 14 must not always be applied. For example, as far as persons of importance to the public are concerned, especially state or government officials, provided the information is important with respect to the function performed by such persons. Certainly, the existence of relevant circumstances and conditions should be assessed in each individual case.
(The answer is contained in the letter sent to an aplicant, no. 011-00-8/2006-03 of 08.04.2006.)
