Important Decision for Access to Information in Serbia

Transparency – Serbia (official chapter of Transparency International) estimates that today's Decision of the Commissioner for Information, in response to our complaint for missing to deliver the contract on managing the Smederevo Steel Plant, is very important from the standpoint of the future of free access to information in the Republic of Serbia. The implementation of this decision should confirm two important principles – that data on disposing with public property should be public and that the organic Law on Free Access to Information should have priority over the conflicting norms of other laws.

The chronology of the proceedings of the Ministry of Economy, related to this contract, clearly shows not only the intention to hide specific data from the public but also the desire to establish a dangerous precedent for similar cases – the complete exclusion of the freedom of access to information on contracts signed by state organs and state enterprises with private partners. Even if some data from the contracts that we requested should be protected to safeguard the interests of the Republic of Serbia or its private partner, that can be done only by legally prescribed measures and on a level sanctioned by law, and certainly not by denying the fact that contracts signed by the state and state enterprises are information of public importance.

TS received Today the Decision of the Commissioner for Information of Public Importance and Protection of Personal Data, adopted in response to the complaint of our organization against the Ministry of Economy .

We would like to remind that, after the publication of news on the contract signing between the Republic of Serbia, the Steel Plant Smederevo and the HPK Engineering B.V. Company, on managing the Steel Plant, after its unsuccessful privatization and the encouraging announcements on the future business of this company, TS requested a copy of the contract . We expected that this contract would be delivered promptly, as it was done in the case of documentation on previously unsuccessful sales of the Steel Plant.

The Ministry of Economy firstly stalled with the delivery of the copy of the Contract, by promising to do so „by an additional 40 day deadline“ . Since there was no answer even after the expiration of that deadline, we filled a complaint. Despite this, the Ministry hasn't complied with the Law on Free Access to Information, because it hasn't delivered the requested data nor has it adopted a decision to deny the request. Instead, an informal answer with the claim that the Ministry can't deliver this Contract, which stipulates the rights and obligations to property owned by the Republic of Serbia, because it is allegedly excluded from the Law on Free Access to Information by the Decision of the Commission for Protection of Competition .

Immediately afterwards, we indicated, not only that the information was unjustifiably denied, but that this could represent a dangerous precedent . Namely, this is a matter of denying information on the basis of the provision of the Law on Protection of Competition (Article 45). This provision’s purpose is to protect the identity of persons that report possible violations of competition and protection of legitimate business interests of private companies that turn to the Commission. The mere fact that the protection of data secrecy was requested by one state organ and one public enterprise is disturbing. The fact that the Ministry requested that the Commission implement the clause on secrecy in this case after it had received a complaint from the Commissioner for presenting its opinion on it, confirms that the clear intention behind it is to hide information. Namely, when we compared the dates from the Decision of the Commissioner and the Decision of the Commission for the Protection of Competition , the Commissioner delivered a Complaint to the Ministry on 13May, the Request for Protection was submitted by the Ministry on 18May 2015, the Ministry stated this in its answer to the Commissioner on May 19 2015, as an excuse for its refusal to deliver the Contract.

The disrespect for rules on access to information is even more drastic when considering  the fact that the documents were not delivered, not only to our organization, but also to the Commissioner for Information, which is a public organ with the right to access all important documents in the possession of authority organs, including those that are labeled with the highest secrecy level, so that it can independently decide whether the reasons for confidentiality overpower the right of the public to access the information.

The Commissioner's Decision in this case is important from several aspects. First, this Decision confirms the  stated standpoint that contracts signed by state organs and public enterprises are information of public importance, that the public has a justified interest to know the contents of these contracts and that the state organ must prove the contrary in order to deny access.

Second, and even more important is the fact that the Commissioner's Decision has a confirmed legal position, based on the constitutional principle of unity of the legal system of the Republic of Serbia, as well as on the basis of relevant documents of international organizations, that the adequacy of the Request for Free Access to Information must be appreciated from the aspect of the provisions of the Law on Free Access to Information, that is in this matter lex specialis compared to all other laws that limit these rights.

Transparency – Serbia

Belgrade, 1 July 2015