Source: "Danas"
In connection with the text "Food for Thought" ("Danas" daily, 18 August 2009)
Rodoljub Sabic
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In a text titled "Food for Thought", the author, Mr. Gajin, made the following opening statement: "My understanding of the Bill on Personal Data Confidentiality is considerably different from the attitudes which the Commissioner for Information of Public Importance and Personal Data Protection presented about certain provisions of this Bill". That statement is true, I have nothing to add to it and I honestly feel a bit sorry because of that. Namely, I have recently written another Bill which deals with the same subject together with the young colleague and Prof. Dr. V. Vodinelic and Dr. Milenkovic, senior lecturer. At that time, we had the same attitudes as regards restriction of powers of the Commissioner and the Ombudsman set under the law. We then also agreed about the necessity of existence of other mechanisms, i.e. public authorities, which would also supervise this area and which would operate under control of the Government and the Parliament. We shared the pleasure of the fact that the Bill was supported by the Coalition of NGOs for Freedom of Access to Information, the entire professional community and, in the end, by several thousands of citizens who enabled it to became a formal Bill submitted to the Assembly by their signatures. I still have not backed on the attitudes which we shared then, but the young colleague obviously has.
My colleague Mr. Gajin said a lot of things. I agree with some of them, but I mostly disagree with what he said. Since I do not want to spend too much time and space, for this occasion I would really like to know why the young colleague suddenly, out of the blue, claims that "approval" which the Commissioner should in the future have to perform his duties actually means an "identity document". Without a hint of malice, I cannot think of anyone who would "translate" the word "identity document" in this way. Indeed, not only is the word "identity document" - which is, of course, not a synonymous word for an approval - not mentioned in the Law, but it clearly states that the Government Service shall decide on "approval" under a "decision", which can hardly fall under an "identity document". But, even if we assume that it is an inept formulation and the authors really had in mind an identity document, which would really require utter benevolence, we might ask ourselves what the meaning of that provision is. There is only one Commissioner, he is appointed by the National Assembly, a decision on his appointment is published in the Official Gazette and he already has one private and two official identity documents. What would be the purpose of an "approval" which is not an approval, but an "identity document"? What would it prove? Is the rationale of the "approval", i.e. an "identity document", to "confirm" the state of affairs in which neither the Commissioner nor anyone else can exercise their rights and duties under the Law unless "competent authorities" issue them an "identity document"?
I must also comment on the generous decision of the young colleague to offer a bit of "food for thought" to the "ignorant" Serbian Commissioner and the professional community. In connection with that, I would also like to repeat on this occasion that two facts are particularly striking in connection with the new law. The first concerns the possibility of those "supervised" to suspend the powers of a "supervisor" (Article 40, paragraph 3), for which - and I fully stand by this - there is no precedent in comparative law. In the text "Strengthening by dying out" published in "Danas" daily on 14 August 2009, I listed 15-20 states which not only do not restrict the right of a supervisory authority to access information, but they also emphasize it by formulations such as "regardless of a degree of secrecy ..." or "state or official secrets shall not prevent ...", "right of unrestricted access to ...", "regardless of a degree of confidentiality ...". We can easily expand this list, we can make it two or three times longer. And the young colleague has a much simpler task ahead of him. He should name only one country in the democratic world in which someone thought of tampering with the basic principles of administrative law by giving a first instance authority a possibility to suspend powers of a second-instance authority.
The second fact is even more important. Laying down formally the "democratic" criteria for what can constitute a secret and enshrine them in the law is not a problem. The problem is to ensure those criteria are met in practice. For that purpose, there are various authorities in comparative law controlled by the Government and the Parliament, which, unlike the Commissioner and the Ombudsman, do not deal with human rights, but perform supervision and ensure that set criteria and rules on confidentiality are met. However, the current Bill envisages nothing of the sort. On the contrary, it "originally" envisages that in our country it will be performed by some kind of Government "service" (Article 87). And it should certainly be undisputable that no expert service has or can have supervisory and inspection powers, those are the rudiments in organization of the Government. And is all talk of real inspection not completely pointless without that? Setting aside the restriction of the Commissioner's and the Ombudsman's powers, does that arrangement not offer an illusion instead of real inspection?
Without an answer to these two questions, unnecessary extensive and relatively (in)accurate paraphrasing of a multitude of various provisions which do not relate to those questions is not "food for thought", but at best a practically indigestible substitute.
