Rodoljub Sabic
PERSONAL ATTITUDE
It is well known and often confirmed by surveys and evaluations of authoritative entities, including anti-corruption specialized NGO networks such as Transparency International, intergovernmental anti-corruption associations such as the Group of States against Corruption of the Council of Europe - GRECO or renowned audit firms such as PricewaterhouseCoopers, that insiders or whistleblowers, as they are more often called in the world, can give an extremely important contribution to the fight against corruption. Several years ago the said auditing firm published the results of a survey carried out in 40 countries worldwide, which showed that in about 43% of cases corruption and frauds were disclosed owing to insiders and some subsequent surveys confirmed even higher contribution of insiders in the fight against corruption. Every serious concept of the fight against corruption in the modern world among other things implies considerable contribution insiders give to disclosure of cases of corruption and abuses.
Of course, a state which expects such or similar contribution from insiders must also have laws which would protect them against abuses, particularly from various forms of "responsibilities". Many states have passed such laws a long time ago. Unfortunately, Serbia still does not have such laws although it has numerous examples of people who spoke out and disclosed corruption in their environment and after that were exposed to various, most often unpleasant forms of "revenge" because of "disclosure of secrets". Ever since I became the Commissioner for information, I have been advocating their legal protection. Unfortunately, although I have not been alone in that, it has not yielded any results so far. Thus I saw the current review of the Amending Law to the Law on Free Access to Information as a very good opportunity to make the first important step in protection of insiders by adequate amendment. Particularly since a well articulated arrangement already exist in the amendment to the Bill which the Ombudsman submitted.
But the Government as the backer of the Law refused to endorse that amendment. It also refused to endorse another amendment pertaining to the same issue which was written by a deputy. In both cases the reason for rejection was the same and rather difficult to understand - Serbia still does not have the Data Confidentiality Law. However, in the competent Committee of the Assembly the majority of deputies of the ruling coalition supported the latter amendment, which is rather unusual in our country. Looking for an explanation for that, one need not look further than the rationale of the amendment which can practically be reduced to one sentence: "This will ensure compliance with the GRECO Recommendation".
But the same argument also existed in the rationale of the Ombudsman's amendment, among a number of other arguments. Why was it not supported (as well)?
The scope of this document does not allow an elaboration on the Ombudsman's amendment, which I believe is very good, as everyone will be able to affirm by e.g. accessing it at www.ombudsman.rs. I would strongly recommend it, but on this occasion I will comment only on the latter amendment because, as it is, it appears to have higher chances to become an integral part of the Law.
Its main part reads as follows: "An employee in a public authority who enables access to information of public importance to which access cannot be limited in accordance with Articles 9 and 14 of this Law or information to which the public authority has already enabled access cannot be held liable or suffer adverse consequences for doing so."
And the Law on Free Access to Information (Article 2) classifies every piece of information created in the operations or in connection with operations of public authorities as information of public importance, while Article 5 envisages that everyone has the right to access information of public importance. Such access can (possibly) be limited exclusively under conditions set in Articles 9 and 14. If it cannot be limited in that way either, it cannot be limited at all, at least not legally. Why would it be necessary to grant protection to those who give the public access to information which it is undoubtedly entitled to access under the Law? Protection makes sense exactly in the case when information the access to which can be limited in accordance with Articles 9 and 14 is made publicly available, because only then can the initiation of infringement proceedings for breach of labour law duty have any claim at legitimacy, at least as far as formally "justified" reasons are concerned.
As it excludes exactly these situations, the offered "protection" seems "cosmetic" and redundant to say the least. And we should not ignore the fact that the part quoted above has an extension which "guarantees" protection "if information points to the existence of corruption, abuse of power, uneconomical disposal of public assets or any illegal action or proceeding by a public authority". Does this preclude the risk of "creative" interpreters of law calling to accountability anyone who makes available to the public any information it has the right to know because it "does not comply" with the said condition?
I do not know whether GRECO could accept the adoption of this amendment (if it is not translated into English) as evidence of compliance with its several years old Recommendation. But I honestly doubt any insider will see this "protection" as serious or as an encouragement. And with all due respect to GRECO, I think that is the most important thing, indeed the only important thing.
