BIA did not follow orders
ExpiredDecision of the Commissioner for the Information of Public Importance may be an international precedent
BIA did not follow orders
Exactly a year ago, acting as Commissioner for the Information of Public Importance, I signed a resolution that attracted great public attention. It was a resolution on ordering the Security and Intelligence Agency (in Serbian: Bezbednosno-informativna agencija - BIA) to give the NGO Youth Initiative for Human Rights the information about the number of people whose communications were monitored in 2005.
In accordance with the law, the Youth Initiative for Human Rights made a formal request to the Security and Intelligence Agency. The law prescribes that the requested piece of information must be provided to the claimant within 15 days or rejected in a legal way; BIA failed to either. To reject a request legally means to pass a resolution containing legal reasons for rejection, a rationale and a legal remedy concerning the concrete matter. BIA only sent a short, informal memo to the claimant saying that it was not able to provide the requested information as this was contrary to Article 9 Paragraph 5 of the Free Access to the Information of Public Importance Act. The memo was not signed by the Director or the authorized person but by the third person, which is contrary to the same law.
It was obvious from the start that BIA had ignored practically all provisions of the law concerning actions that should be taken when access to information is requested. However, more interesting than the procedure itself was whether BIA's reference to Article 9 Paragraph 5 was justified. This provision, among other provisions of this law, envisages that a government body may refuse to provide a requested piece of information if this “will provide access to a piece of information or a document that, pursuant to a law-based regulation or official document, should be kept confidential as a state, official, business or other secret, i.e. it should accessible only to a specified group of people, and if its disclosure may cause serious legal or other damage to the interests protected by the law which outweigh the interest in getting access to information”.
Therefore, in addition to the condition that the information or document must be a state, official, business or other secret, in order to restrict public access to information there is another condition, that its disclosure may cause serious legal or other consequences.
Having found that providing access to a piece of information for a limited, small number of will not cause any, especially serious harm, I concluded that the complaint of the Youth Initiative for Human Rights was justified and passed the aforementioned resolution. Moreover, I thought that the readiness of BIA to make such a piece of information public would have a therapeutic effect on our public, which still carries the load of traumatic experiences concerning misuses by secret services.
According to Article 28 of the Free Access to Information Act, resolutions of the The Commissioner are legally binding and, when necessary, their execution is ensured by the Serbian Government. Nevertheless, BIA failed to carry out the order, and the Serbian Government failed to ensure its execution, as requested by the Youth Initiative. Meanwhile, the Supreme Court of Serbia rejected the complaint filed by BIA against the Commissioner's resolution. The matter stopped there and, with time, drifted to oblivion.
However, the whole incident has recently resurfaced when something similar happened in Montenegro. A few months ago, the Montenegrin Administrative Court, acting as per complaint of the NGO Affirmation Network (MANS) annulled the resolution of the National Security Agency (ANB) on rejecting the request to make public the information about the number of persons whose communications were monitored in 2005. Serbian public may find it interesting that in the court proceedings, MANS referred to the fact that an identical situation, Serbian Information Commissioner ordered that the information be given to the claimant and that the Serbian Supreme Court rejected BIA's complaint against the resolution. Montenegrin Administrative Court did not want to try in the dispute of “full jurisdiction” and did not competently resolve the matter to the very end. However, it did annul the ANB's resolution as illegal, as “there was no proof that disclosure of the requested information would cause more damage to the interests of national security than the public interest in its publicising” and ordered ANB to pass a new resolution.
It goes without saying that we were also interested in the final outcome. In fact, one of the possible scenarios was indeed curios. The resolution of the Serbian Commissioner might become a “precedent” on the international level, although it was not acted upon in the country of its origin. It would be rather difficult to find a similar example, which is why I waited for the outcome in Montenegro with great anticipation. And a few days ago ANB made public, i.e. provided MANS with the information that 45 persons were tapped and 5 persons were under surveillance in Montenegro in 2005.
I am not aware to what extent Montenegrins the decision of the Serbian Commissioner really affected the final decision-making. However, what happened in Montenegro is, indeed, interesting to us - not because it will or will not affect the situation in Serbia but because of other, more important reasons. First, because the event was in fact a new, very important experience in the affirmation of the right to free access to information and participation of the public in the civil control of secret services and then, because the time will show that disclosure of this piece of information did not harm national security. Sooner or later, these experiences will undoubtedly be useful to us too. Written by Information Commissioner
