Source: "Danas"
Reactions
A conversation with the State Secretary Mr. Slobodan Homen was published in your paper under the title ''Military and official secret to be abolished'' as of 5th August 2009. The topic was Draft Law on Confidential Information. Considering the fact that the conversation was expressively affirmative, and that your journalist missed the oportunity to ask for answers to some open questions, I find it my obligation to ask you to publish my reaction as follows:Pursuant to the applicable Law on Free Access to Information of Public Importance the Commissioner for Information of Public Importance has an unlimited right to access every document and media. These powers of the Commissioner which are implicit for his position, being crucial for his work, are based on the Law and are not subject to anyone's consent or approval. In the previous practice - which is now years long - no one has ever questioned these powers. The Draft Law on Confidentiality of Information aims to change the position of the Commissioner for Information qualitatively. Pursuant to the Draft there will be no ex lege right of access to any document labeled confidential. Instead of this, he ‘'has the right to authorization'' (whatever this means) which can be denied in some cases.
In all sincerity, if it were not for this law I would never believe that there are real people who seriously believe that the state Commissioner for Information needs an authorization of ‘'the competent'' to access a document marked ‘'internal''. But as they are real, it would only be right, that they provide answers to some questions. The commissioner's job, i.e. one of his capacities is to order, when necessary, declassification- removal of confidentiality label from certain information- regardless to the level of confidentiality. Deciding whether or not it is justified is not only the Commissioner's right, but also his obligation. In any case when he receives a request for such an action, it is on the Commissioner to make the decision. How can he do his job if he can be deprived of the possibility to inspect the ‘'disputable'' document?
„The interesting" question is the question of the Draft's relation to Article 20 Section 2 of the Constitution of the Republic of Serbia, which guarantees that the level of human rights cannot be decreased. Commissioner's powers set out in the Law on Free Access to Information of Public Importance, are not personal powers, those are powers of a public organ established to protect human rights. Is the obvious drastic limitation of these powers in line with the abovementioned provision of the Constitution?
As of 1st January 2009 the powers of the public body Commissioner for Information of Public Importance were extended to supervision of implementation and enforcement of European standards in the field of personal data protection. Position and powers of supervisory authorities in the field of personal data protection are determined by relevant international documents. They are very wide and clearly defined. Article 3 of the Directive 95/46 EC stipulates that the supervisory authority even has investigative powers, and also powers of access to data forming the subject-matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties. It does not envisage any limitations and therefore comparative law does not contain a precedent for limitations similar to those suggested in our country, to the contrary. In order to illustrate we do not have to go too far, it is enough ''to look over the fense''. For example, in laws on personal data protection of the neighboring countries, the right to access information of the supervisory authority is governed by the following formulations- Art. 32 of the Personal Data Protection Act - ‘'regardless to the degree of confidentiality'', Art. 53 of the Slovenian law - "regardless to confidentiality or secrecy...", in Art. 22 of the law of Bosnia and Herzegovina - "state or official secrets shall not be an impediment..." and Art. 66 of the law in Montenegro - "regardless to the degree of secrecy..." This is only right as it is impossible to do such work without this.
If the Law on Confidentiality is adopted as suggested, it will definitively have a negative effect on exercising and protection of human rights and also on estimates of EU monitors regarding harmonization of our laws with EU standards.
