Commissioner for Information of Public Importance and Personal Data Protection submitted a request to the Government of Serbia to ensure, via direct enforcement, in accordance with Article 28, paragraph 4 of the Law on Free Access to Information of Public Importance, compliance with the Commissioner's decision under which the company "Železara Smederevo d.o.o." was ordered to submit to the journalist of the Crime and Corruption Reporting Network copies of the Agreement between "Železara Smederevo d.o.o." and Bremer International Limited, concluded in 2013, and the Agreement between "Železara Smederevo d.o.o." and Bremer Trading Limited, concluded in 2015, as well as the documents from which one can learn when and how much money was paid by "Železara Smederevo d.o.o." to the said companies.
In this particular case, Železara Smederevo has first responded to the request for information by saying that the documentation related to the request is held in the dislocated archives and not in the seat of the authority, and that it needs the additional time limit provided by law, to respond to the request.
Then, even after the expiry of the extended time limit it did not respond to the request, so the requester filed an appeal with the Commissioner. In its reply, at the request of the Commissioner, Železara proposed that the appeal of requester should be rejected. The Commissioner, however, found the appeal justified and allowed it. Železara did not, which is a statutory obligation if one wants to deny the right of access to information, in any way prove that making the requested information available to the public (in whole or in part) could seriously legally or otherwise prejudice the interests protected by the law. It only referred to the fact that it concluded a confidentiality agreement with foreign partners and that it cannot comply with the request because of that.
On this occasion as well, the Commissioner stresses that, in general, the idea that our national public enterprises may be exempt from statutory liabilities towards the public by concluding confidentiality agreements with foreign partners is doubly inadmissible.
Firstly, formally and legally inadmissible since it is legally impossible to exclude the application of peremptory norms of public law via the norms of commercial law, agreed in binding agreements.
Secondly, because the acceptance of such a possibility would actually mean a wide open door for hiding from the public eye the information that the public has an undeniable right to know, including misuse and even crime and corruption, by simply concluding a "confidentiality" agreement.
The public's right to know is based on the Constitution and governed by law. It does not depend on the provisions of commercial agreements. This right is exercised and restricted according to the requirements and in the manner established by the Law on Free Access to Information of Public Importance. The provisions of the Law also provide for the possibility of limiting the public’s right to know, in order to protect the legitimate interests of foreign partners, however it does not provide for a possibility of limiting or even excluding the access to information that is unquestionably a legitimate subject of public interest under the guise of these interests.
