Source: Danas
In connection with the text "Sabic's Powers larger than President's" ("Danas", 12 August 2009)
Rodoljub Sabic
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To begin with, in connection with the "delicately" chosen headline, I must remind about two facts. The said powers are not Mr. Sabic's powers, but the powers of the Commissioner for Free Access to Information and Personal Data Protection of the Republic of Serbia. And those powers are "larger" than the President's in the same sense as the powers of a traffic policeman in regulation of traffic are larger than the powers of both the President and the Commissioner.
If I wanted to sound witty, I might say that the initial evaluation of your collocutor that "both the Commissioner and the Ombudsman are given larger powers under the new law and that they have the right to access all information" seems to indicate that he is a dogmatic Marxist. They famously believed that "a state dies out by becoming strong" and he seems to believe that, conversely, the Commissioner and the Ombudsman are becoming stronger by limitation of powers.
Pursuant to the currently applicable Law on Free Access to Information (Article 26), the Commissioner has the right to access every piece of information without limitation and he does not need anyone's approval for that. And the Bill on Data Confidentiality envisages (Article 38) that he will need in the future approval to access information marked by any degree of confidentiality. It also envisages (Article 40 paragraph 30) situations in which authorities he must supervise under the Law will be able to deny him access to information. Your readers can evaluate themselves whether it is strengthening or weakening of a position.
As regards "value" of other "arguments", I will comment only one, it will be enough. Thus, your collocutor says: "Article 25 not only gives the Commissioner and the Ombudsman the right to access all information owned by public authorities, but it also gives them the powers they have not had so far. The position of the Commissioner is considerably strengthened and now he has the powers he has not had so far under the Law on Free Access to Information. For example, the Commissioner can revoke confidentiality mark placed by a public authority and give information to a requester."
Please, read that Article 25 in order to convince yourself that nothing of the above is true. The Article does not deal with anyone's right to access to information. The Ombudsman is not even mentioned in it. It does not give new powers to the Commissioner or to the Ombudsman. The Commissioner cannot revoke confidentiality mark; instead, it is done by a public authority to which the Commissioner order to do so, as it has been done so far. Information cannot be given to a requester by the Commissioner but by a public authority to which it was ordered to do so, as it has been done so far. And if an authority does not give information to a requester, the Commissioner still cannot make it do that. I do not know how it is possible that your collocutor "does not know" that the Commissioner has had the right to order making a document marked as a secret available to the public for five years, since the Law on Free Access to information has been passed. For example, ministers of police, defence and other officials, who declassified top secret documents several times when they were acting on such orders, are familiar with that. The general public is also familiar with that.
The value of other "arguments" is similar, so I would not like to deal with them. In any case, two facts are particularly striking in connection with the new law. The first concerns the possibility of a "supervised" to suspend the powers of a "supervisor" (Article 40, paragraph 3), for which there is no precedent in comparative law, particularly from the aspect of personal data protection. Not only do laws on personal data protection of other countries not restrict the right of a supervisory authority to access information, but they also govern it by formulations which emphasize that right.
As an illustration, Article 32 of the Law on Personal Data Protection of Croatia reads: "regardless of the degree of secrecy ...", Article 53 of Slovenian Law: "regardless of confidentiality or secrecy ...", Article 22 of the Law of Bosnia and Herzegovina: "state and official secrets shall not be an obstacle ...". Article 66, Montenegro: "regardless of the degree of secrecy ...", Article 44, FYR Macedonia: "any data ...", Article 19 of Greek Law: "regardless of the type of confidentiality ...", Article 26 of Hungarian Law: "state or official secrets shall not prevent ...", Article 24, Portugal: "every necessary information ...", Article 36, Estonia: "the right to unlimited access ..", Article 39, Finland: "regardless of the degree of confidentiality ...".
The second fact is even more important. Namely, it is not enough only to formally lay down the criteria for what can constitute a secret. It is also necessary to ensure those criteria are met in practice. For that purpose, there are various authorities in comparative law controlled by the Government and the Parliament which perform supervision and ensure that.
However, the Bill does not envisage that general supervision of its implementation will be performed by an authority similar to those from comparative law. On the contrary, it "originally" envisages that in our country it will be performed by some kind of Government's "service". And regardless of its high-sounding name - "Council's Office" - an expert service is an expert service, it neither has nor can have supervisory inspection powers. And without that, all talk of real inspection is completely pointless.
