Many citizens, media, NGOs and representatives of political parties have asked the Commissioner for Information of Public Importance and Personal Data Protection for clarification as to whether public notaries have the status of public authorities within the meaning of Article 3 of the Law on Free Access to Information of Public Importance (LFAIPI), whether the duties provided for in that Law applied to them and whether it was possible to file complaints against them or seek protection of rights by the Commissioner to obtain access to information.
As public notaries will have an important role in the forthcoming presidential election by certifying the signatures of the citizens who sign the nominations of presidential candidates, the public is naturally showing an increased interest in their activities and it is understandable that concerns have already been raised about potential refusal to provide services, denial of rights etc.
However, while it is undeniable that public notaries exercise public powers and that information about their (un)lawful or (un)fair actions in the pre-election process is vital for the public, they are not subject to the Law on Free Access to Information and it is not possible to seek redress from the Commissioner if they refuse provide information.
When defining the status of public authorities within the meaning of the LFAIPI, the legislator obviously intended for this status to be acquired also on the basis of delegated public powers. It is undeniable that the Law on Public Notaries delegates public powers to public notaries and, on that basis, virtually all legal interpretations (logical, systemic, comparative law or targeted) would point to the conclusion that public notaries are subject to the Law on Free Access to Information.
However, this conclusion cannot be drawn because of the way in which Article 3 of the LFAIPI is worded. Namely, the law uses the term “organisation with delegated public powers” and a public notary is an individual, a natural person, an expert appointed by the Minister; he or she does not have legal personality and most certainly is not an organisation.
The Commissioner highlighted this issue already several years ago, at the time when the issue of natural persons with delegated public powers (public notaries, private bailiffs) began to emerge. This issue should have been addressed through amendments to the Law that had been in parliamentary procedure at the end of 2012. Unfortunately, the bill was withdrawn from parliamentary procedure and has never been resubmitted.
For this reason, in November 2014 the Commissioner sent a petition to the National Assembly, asking it to issue an authentic interpretation or, preferably, pass relevant legislative amendments to ensure that activities of public notaries are (with relevant safeguards for the personal data they process, of course) are subject to the Law on Free Access to Information. Unfortunately, the Assembly ignored this initiative.
In this specific case, the Commissioner is of the opinion that the Chamber of Public Notaries, in accordance with its statutory role, which includes protecting the reputation of their profession, supervising the work of public notaries and ensuring they conduct their activities diligently and lawfully, should make every effort to allay the potential concerns and to inform the public of the outcome.
