The Court requested the Commissioner for Information of Public Importance and Personal Data Protection under act No. VIII Su. 42-36/13 dated 5 August 2013 to provide clarification regarding the implementation of provisions on abuse of the rights governed by the Law on Free Access to Information of Public Importance.

As the reason, the Court stated that, within a short period, it had received a large number of access reqests from natural persons for the issuance of a large number of trancripts of court documents and their forwarding via the post, in which case the the Government's Ordinance on the Costs of Procedure applies, despite the fact that ''within the regular procedure'' governed by the Rules of Procedure of the Court, as stated by the Court, interested parties may file a reqest for issuing transcripts of certain court documents, for which adequate court fees have been prescribed, even though they have not previously adressed the court of jurisdiction via ''regular channels''. The court has highlighted that this reduces court revenues from court fees, that this constitutes a violation of the provisions of the Rules of Procedure of the Court and the Law on Court Fees, and presented its position that the Ordinance cannot be ''above'' the Rules of Procedure of the Court and the Law on Court Fees.

In the request for the Commissioner's opinion, the Court presented its position that there is no place for access to information requests, where a natural person addressed the court to obtain a transcript of a certain document or another information ''via the regular procedure falling within the jurisdiction of the court and where the court acted upon it".

In this regard, the Commissioner has sent the following reply to the Court:

''Firstly, the right to free access to information of public importance, pursuant to Article 5 of the Law on Free Access to Information of Public Importance ("Official Gazette of the Republic of Serbia" Nos. 120/04, 54/07, 104/09 and 36/10) includes the right of the requester to be informed whether the public authority holds the requested information, the right to examine the document containing the requested information, the right to make a copy of the document and the right to receive the copy at the indicated address. Therefore, the right to access information of public importance does not include the right of the requester to receive a transcript of the document.

The exercise of the rights of parties, or other interested persons, to access information contained in court files on other grounds, i.e. pursuant to regulations governing the work of court bodies and court procedure, does not preclude their right to free access to information of public importance which is guaranteed to everyone, under equal conditions, pursuant to Article 51, Paragraph 2 of the Constitution of the Republic of Serbia and Articles 5 and 6 of the Law on Free Access to Information of Public Importance.

The very fact that the requester, who at the same time has or has had the status of a party to court proceedings, has decided to access information contained in court files pursuant to the Law on Free Access to Information of Public Importance and the Bill of Costs from the Government's Ordinance on the costs of exercising of this right, and not pursuant to the Rules of Procedure of the Court, in which case the court fees apply, cannot be the reason to withhold information with reference to abuse of the right under Article 13 of the Law.

Provision of Article 13 of the Law on Free Access to Information of Public Importance is interpreted quite restrictively and it applies only to situations where the request is manifestly unreasonable, where acting upon the request would present an unreasonable burden for the authority, disproportionate to the public interest to know, where the authority previously invested additional efforts to comply with the request to the extent and in a manner that would not disturb the normal working process of the authority or in the situation where the applicant repeatedly requires the same information or information already obtained, which is something that the public authority must prove in case of appeal, i.e. administrative proceedings.

In the proceedings for free access to information of public importance an authority, i.e. court, may prove that the information has already been made available to the requester, provided that the content of the request is identical. This does not mean that the court may refer to this reason when rejecting a request for copies of documents in a situation where it has previously allowed the requester only to read the files i.e. examine the documents, because these are materially different rights.

The issue of the effects of implementation of the Law on Free Access to Information of Public Importance on court revenues from court fees is not something the Commissioner can deal with, because he is mandated to protect the exercise of right to free access to information of citizens and other persons in accordance with the law. It is undisputable that this is a factual issue that requires adequate normative or practical financial solutions, therefore the line ministry for judiciary and administration and monitoring of implementation of the Law should primarily be responsible for its resolution. For several years now, the Commissioner has referred to this issue in his reports to the National Assembly, unfortunately, executive power failed to respond and the necessary effects are absent."

No. 011-00-00528/2013-03 Date: 9 August 2013