The Commissioner for Information of Public Importance and Personal Data Protection ordered the Ministry of Mining and Energy to send a copy of the Memorandum of Understanding signed on 18 December 2013 between public enterprise Elektroprivreda Srbije and AMPLEX EMIRATES LLC to a journalist of the Balkan Investigative Reporting Network.

In connection with that ruling and also taking into account the fact that he has recently passed several similar rulings, the Commissioner reminded that the right of the public to information on operations of public authorities and public enterprises, as well as on management of public funds is guaranteed by the Constitution and the Law on Free Access to Information of Public Importance and that exercise of this right can be limited only in exceptional cases, for justified reasons set by the law.

The reasons for denial or limitation of freedom of information are specified by the provisions of Articles 9-14 of the Law. When a public authority that received a request for access to information finds that one of these reasons exists, it may limit exercise of the right of free access to information but such decision must be based on real instead on abstract, hypothetical reasons and must be really necessary to protect against serious violation an interest based on the law or the Constitution which is at that moment prevailing over the right of the public to know.

The Law explicitly sets out that the fact that information or a document is formally marked as confidential is not sufficient to limit the right of the public. The Law also requires an additional, material element – that disclosure of information could result in serious legal or other consequences for an interest based on the law which is prevailing over the right of the public to know.

This is why the Commissioner warned on several occasions that Serbian public authorities and state-owned enterprises should not make arrangements with foreign entities if such arrangements imply that provisions of commercial agreements are an attempt to compromise Serbian mandatory law.

Insofar as it is unacceptable that "confidentiality" in connection with such activities is also expanded to information and documents for which it has not even been formally envisaged, i.e. the content of which implies just the opposite. In this specific case for example, the Memorandum of Understanding between public Elektroprivreda Srbije and AMPLEX EMIRATES LLC explicitly sets out that the Memorandum "shall be governed by the laws of the Republic of Serbia and shall be interpreted according to them" and that information will be available to the public "on order of the Ombudsman or in the procedure of enforcement of the law which regulates the issues of the right of access to information of public importance".

Unfortunately, public authorities and state-owned enterprises obviously do not take much account of the standards of the Law on Free Access to Information which are binding for them, so in several similar cases, without actual need to do so, the Commissioner had to carry out enforcement procedure and order publishing of "confidential" information, although even the formal content of documents was not an obstacle for that.