Source: "Danas"
I am writing to you regarding the text of Mr. Zoran Lazarevic, attorney and trustee of ’Dr Milan Jovanovic Batut’ Institute for Public Health, titled „Serious Case of Law Underestimation“, which was published in your publication on February 2nd, 2010.
In his commentary on my article „Torlak and Batut do not provide information of public importance“ published in ’Danas’ on January 15th, 2010, Mr. Lazarevic finds that „mister commissioner should be reminded that according to the law in question (Law on the Free Access to Information of Public Importance) there is a right to being informed and a right to not provide the information requested, and that he, and I emphasize again, the courts behind him, are the ones that determine which one of the two rights are valid on a case-by-case basis“.
Mr. Lazarevic, also, informs the public that: „in case mister commissioner does not distinguish between the two, the Institute does – there is a difference between questioning the validity of the supplier selection process and the content of the contract (which is a question of the legality of the process) and raising the question of the supposed „threat to the health of the population“. That is why any effort to equate the legality of the process of supplier selection and „population health“ is fruitless“.
Mr. Lazarevic also reminds me that the Commissioner, according to the Article 35 Paragraph 1 Line 5 of the Law on the Free Access to Information, has the authority to decide on the complaint of each party whose rights according to the aforementioned law had been denied, and says: „The Commissioner, however, instead of using the previously-mentioned legal authority, which he had not used thus far, is opening a public debate... on the actions undertaken by this institute, and rudely qualifies them as ’anthological’, as a ’pearl’,... which contains a serious note of underestimation of the law and the legal attitude of this Institute...“
Besides this, Mr. Lazarevic, in the larger part of the text, more than a half of it, presents the information on the position and the activities of the ’Batut’ Institute related to public procurement process, the information about its relations with the National Institute for Health Insurance and the ’Torlak’ Institute, provides reassurance that the contract for procurement of vaccines signed with the ’Torlak’ Institute is in sync with all of the public procurement procedures and that it does not contain any discrepancies with the announced public tender, etc.
With this, larger part, of the text I do not have to deal with as the readers can estimate the value of these claims and reassurances themselves. But, I am obliged to answer the claims which ’say’ that the Commissioner „does not know“ the things he should know, and that he „does not distinguish“ between the things he should, and, especially, „rudely qualifies“ certain attitudes, which „contains a serious note of underestimation of the law“.
When it comes to the „right to not provide the information requested“ mentioned by Mr. Lazarevic, it does not exist. There is only a right to information and the possibility to limit or deny that right. But, only, as it was nicely stated in Art. 8 of the Law: „if that is necessary in a democratic society, in order to protect from serious injury the interest based in the Constitution or the law.“ So, limiting is possible, but only as an exception and only due to reasons stated in Articles 9, 13, 14 of the Law. And, only in a manner stated in Law, since the body that decides to deny access to information is, as stated in Art. 16: „obliged to make an official decision regarding the denial of the request, to issue an official explanation of the decision, and to provide various other legal solutions to the party who requested the information“. The ’Batut’ Institute did not refer to any of the reasons stated in law, or make an official decision that it was supposed to make.
And, of course, I used the authority to which Mr. Lazarevic reminded me of for no reason, and made a decision in which I requested the ’Batut’ Institute provide the information to the party who asked for them. That decision is, by law, final and binding. Will the „legal attitude“ of the ’Batut’ Institute be that this does not apply to them, we need to wait and see.
Why does Mr. Lazarevic start a discussion on the difference between, on one hand, the public debate and the legality of the procurement process and the content of the contract, and, on the other hand, the endangerment of the health of the population, I do not understand. I did not deal with this issue either in my text in ’Danas’ or in general. I only addressed the right to information of the party requesting the access to the contract, as is stated in Art. 2 of the Law: „the information that is in possession of a certain public authority, related to its activities or that occurred during the work of this authority, which is contained in a certain document“. In this context, for the Commissioner, the content or even possible irregularity of the contract in question is not important.
And, finally, we come to the main ’accusation’, to the alleged rough and tasteless qualification of the ’legal attitude’ of the ’Batut’ Institute. Let me remind you of what this is about and leave it up to the readers to determine the validity of these accusations. So, the ’Batut’ Institute denied to provide the contract on the procurement of the vaccine, failed to justify this using one of the relevant clauses in the Law and failed to issue an official decision. The Institute informed the party requesting the information with an informal letter in which one cannot discern any legal attitude „... that the information in the contract is not related to the endangerment or protection of the health of the population..., nor it is of such nature which would justify the interest of the public to know them“.
Is it wrong to qualify this answer as ’anthological’? What else can one say to the claim that the information from the contract on vaccine procurement „is not related to the protection of the health of the population“ or that the information on the procurement of anything for which billions of dinars of public funds are being spent „is not of such nature that would justify the interest of the public to know them“? As a person who is familiar with our rich ’repository’ of various ’excuses’ used for limiting the public’s right, I thought this one was, in the present situation, a rare ’pearl’. I could have also said that – it is a serious case of underestimation of common sense of the citizens of this country.
