Commissioner for Information of Public Importance

MEDIA

As though the Government is inviting people to infringe the law
Source: Politika

The executive power didn't even once secure execution of the Commissioner for Information's orders. - I still haven't received from anyone official publishing of the whole text-body of Contract with "Fiat"

INTERVIEW

Rodoljub Sabic, Commissioner for Information

Rodoljub Sabic is not any more only Commissioner for Information - on 23^rd October to his title has been added that he is also Commissioner for Personal Data Protection.

Exactly on the occasion of last week's adoption of the Personal Data Protection Act, Sabic has day before yesterday sent a public letter to the Serbian Government, asking it to create conditions for application of this and the Law on Free Access to Information of Public Importance, accusing it for "specific obstruction".

"I think, of course, of several governments. Namely the problem exists since establishing of the Commissioner's institution, and that was four years ago. The fact is that the Government is ignoring the impulses the Commissioner is sending to it. The fact is that the Commissioner has worked at first in very poor, and then in a little bit improved, but inadequate conditions, that because of it he has worked with the service which is three times smaller than the projected one (because the executive power can not for four years set aside adequate space for its work), and it is several times smaller than those allocated to similar state officials in other countries", stresses Sabic in interview for "Politika" adding that more important from those logistics problems is that "the government did not activate two very important mechanisms which were within the zone of its responsibility and for which the law envisaged that it should be done". It is, namely, the problem pertaining to execution of the Commissioner's decisions and responsibility mechanism.

The government does not secure execution of Your decisions in sufficient measure?

- The government does not do that for four years. In a bigger number of cases, that might look difficult and hard, however, the Commissioner's orders are executed. Regarding for instance 5,000 registered cases, the figure between 100 and 200, which is a constant of outstanding cases, is not too big. But the importance of the fact that in principle, the government has not once secured execution of the Commissioner's orders is huge. It did not do that even in cases when this was obviously completely easy. Here, for instance, we are now witnesses that the Ministry of Internal Affairs is ignoring the Commissioner's Decision and repeated requests from UNS (Association of Serbian Journalists) and NUNS (Independent Association of Serbian Journalists) pertaining to existence or non-existence of the famous Note about the Sexual Abuse of Sheep, which accusation was stated in relation to one of your colleagues, by one Minister. Or that the government, besides more than a year old Commissioner's order, still does not publish some Contract Annexes for Horgos-Pozega Concession.

But, what is the problem? Is that a lack of the governmental will, lack of sense for significance?

- Please, just continue. Because all that is problematic. I can not blame anyone for conscious, premeditated intention to obstruct the Commissioner's activity, that is, application of the Law on Free Access to Information of Public Importance, but I can completely responsibly say that after four years, after constant, multiple warnings of the Commissioner that all those reasons you are mentioning slightly contribute to the fact that the government is not doing the things it is obliged to do, and therefore it ceases to be important whether this is a conscious obstruction. The fact is that by such treatment the government is indirectly inviting infringement of the law. The second mechanism about which I had spoken is the responsibility mechanism. In our country, differently from some other Commissioners (for instance, my colleague from Slovenia has authorizations to initiate an infringement procedure and to pronounce sanctions - and there are ten inspectors in this much more regulated and four times smaller country), I don't have authorizations even for starting infringement procedure. So, in our country this should be again initiated by the executive power, that is, the Ministry of Culture.

Do you expect to ever receive that mechanism?

- I'm not asking to receive it, I'm asking for that mechanism to be applied by those who have it at their hands.

For those four years you have mentioned we have had three governments. Regardless of party convocation of those governments the attitude towards the Commissioner was the same?

- In the first three and a half years I have worked in conditions that sometimes were not comfortable at all, and I have been often attacked by certain representatives of power. In one moment then the Minister of Justice (Stojkovic) accused me that I'm working to the detriment of the state, without any arguments whatsoever, thus showing lack of knowledge of the valid regulations. Despite that, my collaborators and I have in very difficult conditions succeeded to achieve some results that are, I think, noteworthy. And now, exactly having in mind what you have said, there is a third government which came stressing the path towards Europe and fight against corruption. Of course I have received them with justified hope that this shall significantly relax our position.

And do the things they have done during those hundred and some days still give you hope?

- I shall leave it to the readers of "Politika" to judge that for themselves. So, that government during the first hundred days, which is really not too much, hasn't resolved any of those logistics, material or space-related problems. The Commissioner still works with comically small number of collaborators (seven, out of which there are two secretaries and one driver). Besides the fact that even those two mechanisms I have spoken about haven't been activated, something paradoxical also happened. The new government has suggested Personal Data Protection Act, which is multiplying the Commissioner's obligations. The Law shall become effective on January the 1st, and this service, which is both logistically and according to the number of people weaker than the one I once had in my private Law Office, should face one job which is three or four times more complex, more difficult and bigger than the one we have done so far. In this moment we have 700 outstanding cases. So, even without any inflow of new cases, this service would have what to do at least for half a year.

When do you expect that the Data Classification Act shall be discussed, which should finally prescribe what can be a secret? The proposal in the compilation of which You have also participated is in the procedure for almost a year, and it is still unknown when it shall be discussed.

- That is the Law I'm requesting for years now. Our proposal has been put aside, but if the authorities dislike the proposal compiled by non-governmental sector with the Commissioner, they should put it aside but instead, they should immediately offer another, better one. And I really don't know when that shall be.

How much are institutions up to date in their actions based on Your Decisions?

- In roughly two thirds of cases, and even more, I don't have to give an order at all, because those cases end in such a way that I request statement from the authority against which one has filed a complaint, and they say “All right, we'll give it”. That shows that the majority of those institutions are counting on the possibility that you won't complain, because this is their right. In one third of the cases I have to pass Orders. And those orders are observed at least in 85 percents of cases. Then we come to the category of cases which are not executed, although the Commissioner's orders are mandatory and I have already spoken about them, those are the cases in which the government should secure execution.

Let's see how that functions in a specific case. In May this year Airport "Nikola Tesla" received Your Decision ordering it to deliver to the Serbian Assembly Administrative Board information about representational expenses and about possible special "managers' ” benefits for those in managing places in the company. Did the Airport obey at once?

- This is not only about the Airport. This is one paradoxical case - complaint of the Serbian Assembly Administrative Board. Just imagine the paradox that one authority from the strongest legislative body in power in the country should write a complaint to the Commissioner, because it can not receive from the company and from the agencies of that state data about salaries and representational costs. There were 30 or 40 complaints - one half has already after the request for statement given information, and another half gave the information following the order.

The Airport did it too. Even BIA (Security-Intelligence Agency) delivered data about salaries, only in a closed envelope with the label "state secret". Recently even they have published that data, because they have finally realized that it is a nonsense that taxpayers wouldn't know how much and for whom they're paying.

The opposition has pointed out that the contract with “Fiat" is not completely available to the public, drawing parallel with Horgos-Pozega Highway Concession Contract. Do you know if this is really so, and would you insist on publishing that contract as a whole (as in the case of concession)?

- I function as secondary authority. The Commissioner is never ever doing anything following its official duty. I present my general attitudes by such interview, like the one for “Politika", but in order to be able to intervene I need someone's complaint.

In the case of concession it turned out that the complainant was exactly the President of Vojvodina Assembly Bojan Kostres, although it was completely the same to me. Whoever asked for that information should be served, because such contracts in which one handles huge, capital, state values can not be far from the eyes of the public and therefore I have passed a decision I have passed. In the case of "Fiat" I don't have any complaint, nor did I have it earlier. In any case, in principle, I think that for that and every other contract where one handles significant goods of that state, there are no reasons that could justify possible hiding of those transactions from public eyes.

One of the big problems pertaining to corruption in Serbia is non-transparent financing of parties. Can the new Law on Agency for Fight against Corruption repair the status in that field? Verica Barac stated her skepticism in relation to that.

- Not only Verica Barac, but also Slobodan Beljanski and the whole Board for Resolving Conflict of Interests, and not only them, but also a significant number of people dealing in that matter. I am persistent in claiming that the idea that we shall do something just by passing a law - is irrational. For the playground for fight against corruption we have to choose the real life terrain, not an abstract one and not by creation of certain regulations. We have been given State Auditor's Institution in that abstract world, on the paper, more than three years ago. It is not working even today, it has just started to receive some elementary work conditions. And where shall you find more important institution for fight against abuse and corruption than State Auditor's Institution. And the Republic Public Procurement Administration with its 40 employees is existing in some 160 square meters of space. And what is the importance that institution has in fight against corruption

29-10-2008

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We ask BIA to disclose jobs, files and amount of salaries of the employees
Source: Danas

Security-Intelligence Agency has published Operations Information Booklet

Our story

The obligation of all state bodies is to publish an Operations Information Booklet, and SIA hasn't done that since passing of the Law on Free Access to Information of Public Importance, on November 2, 2004.

Rodoljub Sabic, Commissioner for Information of Public Importance greets the move of SIA and stresses that this is one another good result of the talks he had with the new management based on the attitude on SIA towards the obligations from the Law on Free Access to Information. As the Commissioner states, this is the confirmation of their intention to change that, until recently, extremely bad attitude, because SIA has for the first time in four years of effect of the Law fulfilled its obligation and „thus stopped sending to the surroundings ugly message that it has reserved for itself unacceptable exclusive position of someone who is not touched by the laws “.

Belgrade - Security-Intelligence Agency (Bezbednosno-informativna agencija - BIA) has published on its Internet site Operations Information Booklet which states that the citizens of Serbia besides else most often request from SIA information about vacancies, existence of files, salaries of the employees and procurements „in confidential procedure“. The Operations Information Booklet has 12 pages and it has been published, besides quoting the legal and constitutional framework based on which the SIA works, complete organizational structure of the Serbian secret service, which has never been done before. Also, it is stated that SIA has for this year spent from the Serbian budget 2.34 billion dinars, out of the approved 3.34 billion dinars. Last year the Serbian secret service has spent for its work 3.25 billion dinars out of 3.31 billion dinars which have been set aside from the Budget. As underlined in the Operations Information Booklet, „personal file as well as the very information itself, whether there is a file for a certain person, represents a state secret, and revealing such data to uninvited persons shall be considered a criminal act according to the provisions of the Criminal Code, which has to be officially prosecuted“. The Operations Information Booklet also states that „the data whether a person is or was in collaboration relationship with SIA, State Security Department or State Security Service, represents a state secret and revealing such data to uninvited persons shall be considered a criminal act based on provisions of the Criminal Code, which has to be officially prosecuted “.

Since passing of the Law on Free Access to Information of Public Importance on November 2, 2004 the obligation of all state bodies was to publish Operations Information Booklet, but SIA has just now done that. Operations Information Booklet should contain data about organization, managing, responsibility chain, amount of salaries, funds, budget and the method of their use. The Report should also cover annual survey of the given information based on the Law on Free Access to Information.

Rodoljub Sabic, Commissioner for Information of Public Importance, greets the move of SIA and stresses that this is another good result of the talks he had with the new management, based on the attitude of SIA towards the obligations deriving from the Law on Free Access to Information of Public Importance.

- This is the confirmation of their intention to change this, until recently very bad attitude. Publishing of the Operations Information Booklet is the obligation envisaged by the Law for all state authorities. In a normal order of things, executing one of such obligations should not deserve attention, but this time this really deserves it. SIA has for the first time in four years of law effectiveness completed this obligation. Both for it, and for the whole society it is good that it has thus stopped sending ugly message that it has reserved for itself impermissibly exclusive position of an entity above the laws. SIA has made one good step, and I would personally like if that step would be even more energetic, because there was an opportunity to find more information in the Operations Information Booklet, for instance those pertaining to the budget - says Sabic. He also stresses that some of the attitudes in the Operations Information Booklet, pertaining to interpretation of the rule on limitation of transparency, should be slightly corrected in the light of modern standards.

- There could be additional reasons for objections, but this is really not a moment for that. Therefore I would repeat my mark that SIA has made a step in the right direction. That step sheds almost paradoxical light towards the public. Now the SIA, from which probably no-one expects it to be on the forefront of transparency, has published and updated Operations Information Booklet, and if you browse the state authorities' websites you shall see that many of them still do not have Operations Information Booklets, not to speak about the outdatedness of the published information, even speaking about the highest state authorities. That means that the attitude towards the public is changing in a difficult and slow way. It is obvious that besides all efforts of the Commissioner for each serious change in this field, it is also necessary to have a strong public pressure - concludes Rodoljub Sabic.

27-10-2008

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Rashomonism
Source: Blic

Already long time existing stories about “something wrong” with Universiade 2009, has been confirmed by the Government of Serbia by suspending authorizations given to the previous management and by direct participation in organization of this big manifestation. On this occasion it has been stated that doubtful decisions and contracts of the previous management are already discussed, that we're trying to compensate for the lost time and money, that some things can be done even several times cheaper, and that within two or three weeks we shall have final budget for this sports manifestation. Unfortunately, parallely with these news, one can hear that the previous management has continued its work. Briefly said, rashomonism continues, which in many things reminds us of the “gaseous” one, because it insults even elementary legal logics and sane sense of our citizens.

Even the very mentioning of the sane sense orders us to ask ourselves - if in just a few days a method has been invented to „make some things several times cheaper“, how many things could have been a source of savings in Universiade organization, if any kind of control existed in the last three years? And we can also acknowledge that now it is completely clear why the public has never been presented with the Universiade budget, as well as that this budget, „which shall be determined within two or three weeks“, must be available to the public in its entirety, without any conditions and without delay.

Rodoljub Sabic, Commissioner for Information

25-10-2008

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Compromise and dilemmas
Source: Danas

Once again on the Bill on Protection of Personal Information

The turmoil initiated by public criticism directed by the Trustee for information of public importance against the Bill on Protection of Public Information, and which continued in the Parliament over the amendment submitted by the Ombudsman, will obviously end up in a compromise. These outcomes are not bad, unless they are of those, so-called, rotten compromises. In this very case everything is leading to the conclusion that it is truly one of those.

When the Government settled and sent to the National Assembly the Bill on Protection of Personal Information for adoption, I thought it was my duty to draw attention to the fact that the provision of Article 45, Paragraph 2 is very bad, and moreover dangerous. It is about the provision which is stipulates that the authority of the supervisory body (trustee) to have the insight into data, data directories and premises, the authority which is normally necessary for regular performance, “can be limited for reasons of state and public security … as long as these reasons are in place.”

The provision was articulated in the way that it made certain only that the authority of the supervisory body “can be limited” and it made unclear who and according to which procedures can put the limits. Thus very broad possibilities are left to non-defined and vast number of subjects for unauthorized tapping, recording, internet interception, and all other illegal ways of personal data processing, and without any risqué, because any attempt of the authorities to prevent it can be avoided through mere inventing of the reasons from paragraph 2 Article 45. Those who should be monitored according to law are left the possibility to choose whether they will let the supervisory subject do the job. I warned the Government that such solutions did not exist anywhere in the comparative law, that the solution was in contradiction with the obligations taken over by signing the Additional Protocol to the Convention for the Protection of Individuals with regard to automatic processing of personal data, and that it was beyond the level of authorized protectors of right regulated by the existing law which was passed in 1998.

International documents, of course, give possibility to deny the citizens the protection, but whether the legal conditions for such denial are in place is decided by the supervisory body (in our case Trustee) who also denies the right and information at the same time, and not those in relation to whom the protection is granted. Otherwise there is no protection. That is why the solution from paragraph 2, Article 45 is in a rough and incomprehensible contradiction with the position and authorities envisaged for the supervisory bodies in Article 28 of the directive 95/46 EC or Article 1 of the Additional Protocol to the Convention for the Protection of Individuals with regard to automatic processing of personal data.

I did not succeed in persuading the Government to change their stand. Neither did the Ombudsman, who used their authorities and formally filed the amendment requesting the deletion of the Paragraph 2 of the Bill. However, towards the finalization of the parliamentary discussion on the Bill, a compromise, I mentioned at the beginning, appeared in the shape of an amendment proposed by the Legislative Board and accepted by the Government.

The amendment approved by the Board is actually a possibility for limiting the authorities of the supervisory body (Trustee), but the introduction of two new paragraphs included the Supreme Court of Cassation in the whole matter by envisaging the limiting to be possible only after getting the opinion of the President of such court.

It is good that the Government quitted the solution which gave the repressive bodies free hands and that for the whole matter at least the opinion of another body is necessary now - the opinion of the President of the Supreme court.

However, it is not good that the Government again seized for the original solution which is questionable from the main legal postulates point of view. For example the solution is based on the body which is not a body, because the court is but the president of the court is not a body, as well as on the obligation which is not obligatory, since no opinion in law is obligatory. However, more interesting than these sophisticated objections is the fact that the implementation of the solution could jeopardize, not protect the security interests the Government wants to protect

And most probably it is about a wish to make as small as possible the circle of those who know that a specific data processing is going on, i.e. that somebody is, by a court decision, under the measures of the bodies of security, for justifiable reasons only, such as a suspicion of criminal al activity.

However, it is forgotten that the supervisory body (Trustee) has formally obligations towards everyone addressing them. They have to proceed according to the request, to answer it. Elsewhere in the world, the supervisory body is always let on such occasions make sure that legal data processing is underway. And this fact, clearly, implies their obligation and obligation of their associates, to keep all information on processing in secrecy. And in order to insure that the supervisory body does not, even indirectly, reveal the secret, the law envisages suitable procedures for removing possible mistrust of the requester. This can be for example done by informing that the authorized persons of the supervisory body have done the control and discovered that no date processing is underway. And what can the supervisory body which is denied the possibility to check whether it is legal or illegal processing do? In the best case scenario it can keep silent regarding both requests and demands.

Taking into account everything afore said, I am persuaded that the compromising solution should be replaced by a less original one, the one that exists in at least some other countries

The author is the Trustee for information.

21-10-2008

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Compromise
Source: Blic

Comments

Rodoljub Šabić, Trustee for information

It seems that the turmoil initiated by the public criticism directed by the Trustee for information against Article 45 of the Bill on Protection of Public Information and which continued in the Parliament over the amendment submitted by the Ombudsman taking the side of the trustee, will be finalized by a “compromise”. It would be indisputably good if it was not of the nature most common among us - that is a rotten compromise. Certainly, it is very good that the Government quitted the solution which gave the repressive bodies free hands to do without any risqué the data processing, and to dispose of any trial of the Trustee to intervene with the mere invention of security reasons, and that for the whole matter at least the opinion of another body is necessary now - the opinion of the President of the Supreme court.

But it is not good that the Government has again seized for the original solution, which is questionable from the point of some basic legal postulates. For example it is based on the body which is not a body, since the president of a court is not a body, as well as on the obligation which is not obligatory, since no opinion in law is obligatory. What is more, the experts in the subject will easily notice that application of the same would more jeopardize than protect the security interests the Government wants to protect. That is why it would certainly be good to replace the compromise solution as soon as possible with a less original one, one that exists at least in some democratic country.

16-10-2008

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