The school asked the Commissioner for an opinion whether it should fulfil the request of an attorney of student's parents, who attends this School, by which it is asked for minutes of the school's Team for children protection against violence and other notes and statements regarding problems in the school, as these documents also contain personal data of students.
The Reponses states that the Commissioner, as a Protector of right to free access to information of public importance and right to personal data protection, make decisions in second-instance procedure and in that procedure he takes a stand in a specific case upon appeal, based on relevant facts and circumstances, which he will do in this case as well, if it comes to an appeal, therefore he presented only his principled position about the requested:
First of all, regarding the School's obligation to act upon a request, the Law on Free Access to Information of Public Importance ("Official Gazette of RS" Nos.120/04, 54/07, 104/09 and 36/10), obliges the School, as a public authority, to act upon each request for access to information, regardless of whether it grants the request or refuses the request; while in the firth case it is not obliged to issue a decision, but only to make an official note as a proof of acting (Article 16 (9) ), and in the later case it is obliged to issue a decision with rationale for such decision and information on legal remedy ( Article 16 (10)). The obligation of acting upon request exists even where a public authority does not hold requested information, but it is obliged to inform an applicant about it and act in accordance with Article 19 of the Law.
There is no dispute that the information contained in minutes of the school's teams, and other records created in the work of the School, are considered information of public information within the meaning assigned by Article 5 of the Law on Free Access to Information of Public Importance and as such, they can be a legitimate subject of requests for free access to information of public importance, by any person, including parents, or their attorneys, in accordance with Article 5 of the Law. In view of such information, there is a statutory presumption of justified interest of the public to know (Article 4).
At the same time, the Law in Articles 9 and 14 prescribes conditions and reasons for limitations of the right to free access to information of public importance, in part or in its entirety, where burden of proof is on acting body, namely the school. The school is obliged, in this specific case, where it alone recognizes the obligation to protect personal data using the so-called public interest test referred to in Article 8 of the Law, to outweigh prevalence of interests, between the right of the public to know, on the one hand, and other possible legitimate right or interest (from Articles 9 and 14 of the Law), such as the right to privacy or safety or any other vital interest of a person, on the other side.
Starting from the fact that access to, for example, school records could infringe the privacy of students or their families, the school will assess in a specific case whether conditions for application of exemptions specified in Articles 14 1) to 3) of the Law (for example, it is a phenomenon or event of public interest) are fulfilled, and if the school assesses that they are, the information will be made available to the applicant, and vice versa. Even if the school makes an assessment to allow access to documents, it is obliged to take into account protection of personal data, and in this regard, application of one of the basic principles of data processing, the principle of proportionality referred to in Article 8 of the Personal Data Protection Law ("Official Gazette of RS" Nos. 97/08 and 104/09-other law), and not to allow access to that personal data in respect of which the public should not have an interest to know, or which prevails over the public's right to know, such as data on ethnicity, social status, health status, address data etc., by protecting such personal data in documents prior to access.
Also, from the point of implementation of the Law on free Access to Information of Public importance it should bear in mind that one can not question the public's right to know under the guise of privacy, bearing in mind that there is always a possibility to anonymise personal data contained in documents or its protection by covering or extraction of sensitive data, in accordance with Article 12 of the Law on Free Access to Information that regulates partial access to information.
In acting upon requests for access to information, it should also have in mind that the term of information of public importance implies obligation of the authority that requested information made available to the applicant must be available to any other applicant or generally available to the public, as opposed to requests for exercising right in accordance with the Personal Data Protection Law, in connection with the processing of own personal data, that it the applicant, in which case the access is allowed only to data subject or his legal representative, if the applicant is a minor.
(Abstract, Response to the applicant, No.011-00-270/2012-03 dated 02.04.2012)