Commissioner for Information of Public Importance and Personal Data Protection issued a resolution ordering the High Public Prosecutor's Office in Belgrade to provide the information to a journalist from the Whistleblower Portal, on the case which is conducted by the Prosecutor’s Office, against Sinisa Mali, which would disclose the following:
- the respective case number, which criminal offences prompted and at what stage the case currently is, what actions the Prosecution has undertaken in the case, and whether Sinisa Mali was interrogated and when,
- what the Prosecution has undertaken further to the Report of the Anti-Corruption Agency, dated August 2016,
- at what time the Prosecutor’s Office received the report from the Administration for the Prevention of Money Laundering on the controlling of Sinisa Mali’s financial activities, where the Administration had acted at the notification reported by the Hypo Alpe-Adria Bank in 2009, and what has been undertaken thereof.
High Public Prosecutor's Office had previously denied the request of the information seeker on the grounds that it was a case founded on the basis of the report of the Anti-Corruption Agency, and classified as "strictly confidential", which was why the information seeker lodged a complaint with the Commissioner.
During the course of the proceedings, the Prosecution did not provide any evidence, no concrete information to underpin the classification as "strictly confidential" in a manner that would, at least formally, be in accordance with the Law on Data Secrecy. Also, it did not specify when, or which authority (the Prosecution, Agency or any third party) allegedly had put that classification. It provided no evidence as to the existence of any such decision determining the confidentiality, which, according to Art. 11, of the Law on Data Secrecy, is mandatory.
Of course, even if the Prosecution had provided evidence that the information’s classification as "strictly confidential" was made at least formally in accordance with the law, in order to justifiably deprive the information, it would still have been obliged to prove that the disclosure of the requested information might have serious legal or other consequences against the interests protected by law, as prescribed by Art. 9, of the Law on Free Access to Information of Public Importance.
The Prosecution did not do this, and under the specific circumstances, that is not even possible.
The Law on Data Secrecy stipulates that the status of "strictly confidential" may be given to certain information if necessary "for the prevention of serious damage to the interests of the Republic of Serbia".
The claim that the interests of the Republic of Serbia could have suffered a damage, and particularly “serious damage” due to the public disclosure of information on the case number, or whether the Prosecution undertook anything with a view to the suspected legality of the property acquisition, or the execution of criminal offenses by any officials, is quite obviously in conflict not only with the law, but also with the elementary logic.
