Source: "Danas"
A few months ago, Andjelka Popovic passed away after childbirth at the Gynecological Clinic in Kragujevac. Had I, and I had not, even though my associates and I are literally buried under piles of documents, forgotten about this case, Jugoslav Cosic would have reminded me in the TV show ‘'Poligraf'', where I have been recently invited as a guest.
On that occasion, among other things, he asked me to comment on the fact that HC ‘'Studenica'', Kraljevo has, notwithstanding my orders, failed to hand down A.P.'s husband her documentation. I told him that the Turks have an appropriate expression for that, and that such behavior is most easily referred to as ruffian behavior.
Immediately after the show, I received a very interesting e-mail from a well-known and notable activist of civil society and blogger community, B.S., also known as Krugolina Borup or ‘'Mother Courage''. It read, among other, as following:
"I am writing to draw your attention to the fact that this is not only the official stand of HC''Kraljevo'' , but the general official stand of the Inspection of the Ministry of Health as well. Namely, I met with Dana Mihailovic, Head of Inspection Servic,e and she mentioned this very case, when she told me that Rodoljub Sabic was in the wrong and that only personal data subject can have access to such documentation (but must not make copies).Having in mind that Andjelka had passed away, I asked whether her husband had the right of access? She responded that he didn't, and that medical records are an official secret and that patient privacy is protected by that rule.''
This warning tells us that we are not only dealing with ruffians but with ‘'experts'' as well. As the latter can create faulty notions on people's rights, I will have to take more steps concerning that matter.
Firstly, I think that it is a good idea to pose a few questions to the ‘'experts''. For example, are they aware that Article 28 par.1 of the Law on Free Access to Information of Public Importance reads as follows- ‘'the rulings and conclusions of the Commissioner shall be binding'' ? Have the ‘'experts'' ever heard of a country in which legally binging rulings of a relevant body depend on whether those that the rulings refer to like the rulings or not?
Whether the ‘'experts'', who are obviously prone to mystification of ‘'official secret'', know what is laid down in Art. 9 subpar. 5 of the Law on Free Access to Information of Public Importance? If they know that the provision stipulates that the applicant shall not be allowed to exercise his right to access information or document qualified by regulations or an official document based on the law as a state, official, business or other secret but only if an additional prerequisite is applicable - if ‘'its disclosure could seriously prejudice the interests protected by the law and outweigh the access to information interest''?
So the main question is not whether a document can bear the formal label ‘'official secret''. That fact is not, in itself, automatically, relevant grounds to restrict access to information. The formal grounds require basic, material grounds as well. Whether both conditions, formal and material, are met in every case should be determined. That is firstly to be done by the body to which the citizen filed an access request, then by the Commissioner for Information acting upon appeal, followed, if necessary, by reaction of the Supreme Court. Hence, in every situation where a request for access is the case, the document or information formally labeled as ‘'secret'', should not be made available to the public only if the secret ‘'conceals'' a legitimate interest, which could be endangered by revealing, and which in that case outweighs the public's right of access .
Even the ‘'experts'' should be familiar with the fact that, relating to limitations on the right of access to information, we incorporated into our legislative system an instrument known in comparative law of the democratic world as ‘'public interest test'', in the fifth year of the enforcement of the Law on Free Access to Public Information.
Since the''experts'' mention ‘' privacy protection'' we have to ask ourselves whether they have at least read the Law on Personal Data Protection? Because if they had, they would at least be familiar with (Art. 8) that personal data may be processed (copied, rewritten, duplicated....,or otherwise made available) only with the permission of the personal data subject. And they would also have to know that consent for data processing of a deceased person can be given by his or her spouse (Art. 10).
Was a professional lapse the real cause of A.P.'s death? I really do not know. What I know is that an evident failure to recognize what the legitimate interest for withholding information in this case is, especially to her husband, who has a manifold claim to it, only nurtures already existing doubts regarding this case. And I also know that the obstruction of citizens to exercise their rights by ‘'experts'' and ruffians should not ‘'go'' unpunished, because what they are ‘'doing'' nurtures already existing great distrust in laws and institutions of this country.''Author the Commissioner for Information
