The Commissioner for Information of Public Importance and Personal Data Protection annulled the decision by which the National Fund for Health Insurance refused to submit data to Transparency Serbia on the value of conducted procurements to counter the pandemic. TS previously filed a complaint with the Commissioner against the fund for refusing to fulfil the request. The Commissioner also instructed the fund to determine “whether there are all conditions to exclude or restrict free access to information”, and if so, “whether in this particular case and what severe legal or other consequences could realistically occur if the requested information is made available to the public.”
In July 2020, Transparency Serbia requested the fund data on procurements from the first half of 2020, which the fund had not announced. First of all, these are the procurements carried out based on the previous Law on Public Procurement provision. That provision enabled the procuring entities not to conduct any of the procurement procedures in case it is necessary to protect human life and health, but with the duty to provide the extent to which the application of the principles of transparency and competition is possible. Also, TS requested data on other exempted procurements (e.g. based on interstate agreements, donations from commodity reserves).
The fund refused to submit the requested information. In addition, it labelled the request “inadmissible”, which cannot be accurate in any case because it is undoubtedly information created in the process of fund’s work and is in its possession. As the only reason for refusal, the fund states that the requested information is contained in documents marked with the secrecy degree of “strictly confidential”, according to the conclusion of the Serbian Government of 15 March 2020 (SP 05 number: 00-96 / 2020-1). It is impossible to verify the truthfulness of this claim because the government did not publish that conclusion. Transparency Serbia requested this act from the government on 15 April 2020, but the government ignored the request, and the administrative dispute on the claim of TS was not resolved.
Declared secrecy of documents can only be a formal basis for restricting the right to access information. An essential foundation for such restriction should be established as well - that such secrecy is necessary to protect another overriding interest, which has a constitutional and legal basis which the Commissioner confirms.
For the National Fund for Health Insurance to properly consider the request for access to information, Transparency Serbia believes that the fund should take the following facts into account: