On November 16, 2021, amendments to the Law on Free Access to the Information of Public Importance (the “Law”) entered into force, as they had been published in the Official Gazette of the RS no. 105/2021 of November 8, 2021, whereby they were passed for the purpose of alignment with relevant regulations adopted in the meantime, such as the Law on Data Secrecy and the Law on Personal Data Protection, and international standards in the respective field, as well as introduction of mechanisms to ensure that the authorities act in accordance with their legal duties, and that information seekers enact their rights under the Law exclusively for the purposes stipulated therein.
The new provisions shall start to apply upon the expiry of three months after the entry into force of the Law, i.e. on February 16, 2022.
Key Novelties
There are four key novelties among the solutions provided by the Law:
- extension of the circle of entities subject to the Law, i.e. notion of public authority;
- advancement of the system for creation and publication of authority’s information booklet, in accordance with the principle of proactive transparency;
- advancement of statutory and operational independence, as well as authorizations of the Commissioner for Information of Public Importance and Personal Data Protection (the “Commissioner”); and
- introduction of mechanism for prevention of abuse of rights of seekers of the information of public importance.
Extension of the Notion of Public Authority
The Law has extended the circle of entities that are liable to act in accordance with the Law, by prescribing that the notion of public authority in terms of the Law also includes legal entity or natural person with public authorisations (e.g. notary public), as well as bodies of town municipalities, legal entities established by companies that are in majority state ownership (so-called subsidiaries), whereas majority state ownership implies the ownership of any body stipulated in Article 3 of the Law, whether individually or collectively.
In addition, the law specifies the scope of information that should be provided by legal entities that perform activities of general interest, have public authorisations, or are funded by a public authority, i.e. it is stipulated that such entities shall have the capacity of public authority and obligations regarding such information that pertain to the performance of public activity or funding from public source, but not all information that they possess.
The Principle of Proactive Transparency
As it was previously mentioned, the purpose of the Law is to improve legislative framework that regulates the access to the information of public importance so as to increase the transparency of work of public authorities. Therefore, the Law pays special attention to regulation of the manner of creating and publishing authority’s information booklets.
Namely, the Law prescribes the content of information booklet, as well as that it needs to be made in both electronic and machine-eligible form, and published through single information system of information booklets, which is kept and maintained by the Commissioner. In addition, a public authority shall be obliged to ensure accuracy and integrity of data published in the information booklet, as well as to update it by introducing relevant changes within 30 days upon their occurrence.
Advancement of Statutory and Operational Independence, as well as the Commissioner’s Authorisations
As regards the status and authorisations of the Commissioner, certain amendments have been proposed with respect to election and mandate of the Commissioner, i.e. the respective authority is elected through a public call, whereby all interested parties are invited to apply for the position of Commissioner, whose mandate lasts for eight years without possibility for re-election.
Also, considering recent issues in practice with regards to enforcement of Commissioner’s decisions, as well as the need for terminological adjustment to the Law on General Administrative Procedure (which regulates the administrative enforcement of non-pecuniary obligations), the Law prescribes the right of the Commissioner to force the authority to execute obligations from the Commissioner’s decision by direct enforcement i.e. pronouncing of a fine. The fine is pronounced by decision, to head of the authority, and it ranges from RSD 20,000 to 100,000, with a possibility to be repeatedly pronounced. The stated fine is enforced by the court, to the benefit of the budget of Serbia.
The Law also stipulates so-called decentralisation of the Commissioner, by envisaging that the Commissioner may also establish offices outside its seat.
Prevention of Abuse of Rights of Seekers of the Information of Public Importance
With regards to the Commissioner’s authorisations and considering the previously observed problems in practice, i.e. significant number of information seekers who frequently institute misdemeanour procedures for offences stipulated by the Law, without previously appealing to the Commissioner, the Law prescribes that the Commissioner shall be authorised to file a request for institution of misdemeanour procedure for offences stipulated by the Law, provided that it estimates the existence of offence while acting upon complaint, whereby the information seeker may not file a request for institution of misdemeanour procedure against an authority prior to finalisation of complaint procedure before the Commissioner (and/or finalisation of administrative procedure, if complaint to the Commissioner is inadmissible).
In other words, information seeker shall be obliged to address the Commissioner first, claiming that the Commissioner files a request for institution of misdemeanour procedure (or to address administrative inspection, in case of administrative dispute). If the Commissioner (or administrative inspection) fails to reply to the request of the information seeker within eight days or responds that there is no basis for such request, the information seeker may individually file a request for institution of misdemeanour procedure. Additionally, the information seeker is entitled to continue the procedure if the Commissioner (or administrative inspection) waives the request.
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By Lara Maksimovic, Senior Associate, and Danica Nikitovic, Junior Associate, PR Legal