On the basis of a large number of questions from the journalists and the media, the Commissioner for the Information of Public Importance states that some contradictory and unclear statements of those responsible in connection with the access to information from the concession agreement for the Horgos-Pozega motorway have created uncertainties with a part of the public about the facts relevant in this legal matter, as well as about the contents and scope of the Law on Free Access to the Information of Public Importance, which may have adverse consequences that surpass the borders of an individual case. In connection with this, the Commissioner would like to point out that when making a decision he has not dealt with the issues such as the justifiability of the concession, the choice of the road line, the need to assess the agreement, etc., but only with the issue of the right of the public to know. Pointing out that he has unambiguously expressed and justified his position with regards to this right in the decision he has made, Commissioner Rodoljub Sabic still considers it his obligation to reply publicly to at least two of the most frequently asked questions, which he did in the following manner:
“In which way will the decision of the Commissioner be executed and will it be executed at all?”
The decisions of the Commissioner are legally binding and the body to whom they may concern should execute them by the rule. In case that there is a need to ensure the execution of the decision, this is not done by the Commissioner himself, but rather by the law it is the obligation of the Government of Serbia. In the concrete case, the Minister for Infrastructure has already informed me that he has filed a complaint against my decision with the Supreme Court of Serbia and since the action does not postpone the execution, he has submitted a request to me to allow postponement of the execution of the decision until the finalisation of the proceedings. Since the Commissioner, as I said, has no executive authorities, I passed this request to the Government of Serbia. I have, of course, a completely defined position both on the justifiability of the request for the postponement and on the chances of the ministry as the complainant with regards to the success in the dispute, but I do not want to prejudice the positions of those in charge by publicly stating my position.
On the basis of what has the Commissioner ordered a free access to the information, particularly bearing in mind that the competent ministry is claiming that the agreement has stipulated that the information in it represent a business secret?
After the request of the Assembly of AP Vojvodina for the access to the information, the ministry spent the statutory period of 15 days in an unacceptable, even punishable, “silence of the administration.” Then, again outside the law, after the expiry of the set period, it extended the deadline to 40 days, only for this one to pass again without the effect foreseen by the law. Neither has the requested information been provided, nor a decision on the declining of the request has been passed. Thus, from the procedural point of view, literally all the relevant provisions have been violated .
From the substantive legal point of view it is important that the fact that some information marked as a secret (official, business and state one) or as a confidential one should not be mystified. Our law stipulates this fact as a possible basis for limiting the freedom of access to information, but not as an automatically binding one. It is not sufficient by itself, because along with this formal condition, the law asks for another one. And this one is that revealing of the secret may indeed cause a significant damage to the other legally protected interest which outweighs in comparison to the right of the public to know. This circumstance should be assessed in each concrete case by the body to which the request has been submitted and in case of an appeal by the Commissioner as well. In the concrete case I find it obvious that the right of the public to know everything about the conditions under which an exceptionally valuable resource of the country is put at somebody's disposal absolutely outweighs over the reasons for the protection of some completely abstract confidentiality.
In connection with the manner in which the confidentiality has been regulated by the concession agreement, it is intriguing that literally all the information about the construction of the motorway is confidential. It is unclear what our party was guided by when agreeing all of this and what our interest would be for this total confidentiality which is unusual under contemporary conditions even for the contracts the subjects or which are weaponry or military equipment.
Finally, free access to information is not in contradiction even with the provision of item 24.2 of the concession agreement which regulates the “confidentiality.” Namely, although rigid, it does stipulate several exemptions to the confidentiality, among which there is “when this is requested by the regulations.” Thus, not even the contracting parties have agreed on the possibility of limiting access to the information when the request for the information is based on our existing regulations or the laws, which was precisely the case in the concrete situation.”
