Introduction

Freedom of access to information is most frequently defined as the right of every person to ask for, and receive, relevant information of public importance from authorities, i.e., people with public competence, in order to get insight into the work and activities of actors citizens placed their trust in, during free and democratic elections, to perform functions of authority in their name and on their behalf. Transparency is considered a precondition for responsibility of public authorities and their democratic legitimacy.

We can distinguish two sides of transparency. The first one is proactive and consists of publishing of public information such as making of regulations, calculations and financing, work reports, the publication of general acts from their competencies, decisions on distribution of funds after public tenders and advertisements, and is based on the understanding that "citizens have the right to know" how decisions are made in their name and on their behalf, and what are the outcomes and results of such decisions. For this purpose, bodies with public authority, through systematization, appoint persons who communicate with the public in their name and on their behalf, update information on official web sites and reply publicly to citizens' questions.

On the other hand, every citizen also has the right to require information of public importance that is not included in written or electronic media, which presents active participation of citizens in the processes of decision-making and shaping of policies through public consultations, giving comments and opinions, as well as control of public authorities.

The essential development of the right of access to information began with the strengthening of civil society institutions, primarily in developed countries, and after passing of the first laws1 regulating this field, intense activities began, and the pressure by the civil society to ensure constitutional-legal protection for this right (Milenković, 2010, p. 13).

International recommendations state that the right of access to information of public importance, as the fundamental right, should be included in national constitutions, to provide this right with a larger degree of permanency and stability (even in the state of emergency) and thus enable its realization based on the constitution. The Republic of Serbia fulfilled this requirement by adopting the Constitution from 20062 (Milenković, 2010, p. 14).

Despite the fact that this right was included in the Constitution, and that the Law on Free Access to Information of Public Importance of the Republic of Serbia3 was recognized as the most advanced and most comprehensive law in this field (Gajin, 2018, 231-232; Nenadic, 2019, pp. 3-4), and that analyses show replies to requests are being given in 80-100% cases, depending on the bodies receiving them4, the Republic of Serbia and the bodies with public authority still remain the subject of numerous condemnations by the civil society and EU member countries. Some of these countries have still not regulated this field, do not fulfil the standards regulated by numerous recommendations of the Council of Europe in this field, or simply do not apply them in practice, so this right remains to a large degree "a dead letter" in their legislatures.5

Protection of human rights and international standards on free access to information of public importance

There is a large number of international documents today that protect human rights. We may certainly consider the UN Charter (1945)6 as the principal universal document, whose preamble emphasizes determination to "reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small".

Three years later, the Universal Declaration of Human Rights7 was passed, whose Article 12 clearly states that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interferences or attacks".

Almost the same aspects and guarantees of the right to privacy are stated in Article 17 of the International Covenant on Civil and Political Rights from 1966 (hereinafter: ICCPR).8

Simultaneously with the adoption of ICCPR, the UN General Assembly's Resolution adopts an Optional Protocol to the International Covenant on Civil and Political Rights (hereinafter: the Protocol), which states that each country signatory of the Covenant, which becomes a signatory of the Protocol, among which is the Republic of Serbia, recognizes competence of the Human Rights Committee to receive and take into consideration written petitions by individuals that belong to its competencies, who claim they are victims of violations by a country of any right stated in the Covenant, providing that all legal means have been exhausted.9

The most significant regional international convention protecting human rights, i.e., the right to privacy, in Europe is the European Convention on Human Rights and Fundamental Freedoms10 (hereinafter: ECHR), with several additional protocols, adopted under the auspices of the Council of Europe.

Moreover, protection of the right to privacy is also regulated by Article 11 of the American Convention on Human Rights11, which was adopted by the Organization of American States in 1969, as well as by other regional conventions of the similar character.

The European Convention on Human Rights and Fundamental Freedoms (ECHR) does not regulate the right to free access to information of public importance in its principal text or in its additional protocols. This interpretation is supported by the European Court for Human Rights, which still has not reached a joint opinion whether Article 10 of ECHR includes the right of access to information of public importance if it is not in accordance with Article 8 of the Convention, i.e., if access to information is not requested by a person whose personal data are contained in the information, i.e., if information does not contain data about the person who requested them.12

In contrast to the ECHR and the attitudes of the European Court for Human Rights, the International Covenant on Civil and Political Rights13, which SFRY ratified on January 30, 197114, in its Article 19 stipulates that everyone has the right to freedom of expression. This right, regardless of limitations, implies freedom of collecting, receiving and spreading information and ideas of all kinds, in oral, written, printed, or artistic form, or in any other manner of free choice.

However, we should stress that the analysis and interpretation of the Law on Free Access to Information of Public Importance15 frequently quote this international act which, in Article 17, clearly regulates that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence; everyone has the right to the protection of the law against such interference or attacks".16

It is important to stress that the Council of Europe has set the most important European standards, numerous recommendations, directives, contracts and treaties in this field.17 Of particular importance here is Recommendation Rec (2002) 2 of the Committee of Ministers to the member states on access to official documents18, which was adopted in February 2002 and recognizes the best standards in the field of free access to information.

This Recommendation enables a broader access to information held by public authorities, and describes it as an indiscriminate access, as a result of political conviction that the right to freedom of information, together with the right to receive information, must be ensured to everyone.

Free access to information of public importance in the Republic of Serbia

The right of access to information of public importance, as a derived and relatively new right in democratic countries, appeared as the result of the work and permanent pressure of civil society organizations. It should contribute to consistent respect of human rights and freedoms, and to reducing corruption and unethical behaviour. In addition, it should have a direct influence in favour of transparency and responsibility of bodies with public authority, and should enable unhindered flow of information.

The original idea of civil society organizations was the transparent monitoring of spending budgetary funds and prevention of corruption, as well as decreasing the possibility of abuse by public authorities, through stimulation of larger legality and regularity in work. With time, the idea has been extended to other spheres of life, with the aim of stimulating larger transparency and improvement of work, and increasing quality in the field of protection of human health, education, environmental endangerment and protection, work of legislative and judicial bodies of authority, as well as of research centres etc.

Adoption of the Law on Free Access to Information of Public Importance in the Republic of Serbia in 2004 created the possibility for a new type of control of public bodies, and also provided a broader opportunity for citizens' active participation in creating and directing public policies through monitoring, initiating, proposing and taking attitudes in all spheres of life.

The idea of transparent public bodies and citizens' participation in their work corresponds with the requirements of democracy, the introduction of legal and political responsibility, strengthening of the legal state and the rule of law, and fully reflects the proper picture that "bodies with public authority exist because of citizens, not vice versa". However, in a society that is in transition, with the narrow interpretation of broadly stated laws, the lack of experience and permanent education of the civil sector, as well as of employees in the media and the public sector, very often there are completely opposite results in practice.

Ever since the adoption of the Law, numerous proactive measures have evidently been undertaken, at both local and republic levels, to continuously inform the public, in a very transparent way (through press conferences, public statements, official websites and web portals), about all activities implemented by the bodies with public authority. In this respect, within the framework of systematization of work positions of most bodies with public authority, positions and employees are envisioned whose competences, authorities and responsibilities include public relations, updating of official Internet pages, replying to requests for access to information of public importance, and also monitoring observation of work ethics. The fact that in recent years all information is updated almost on a daily basis, and that the public is informed in a timely manner, truthfully and to the most possible degree (concerning confidentiality of certain information) about all relevant issues, speaks about the enormous progress made in this sphere.

In acting upon requests for access to information of public importance, various statistics speak about the practice of the bodies with public authority, the reports of the Ombudsman, and the attitudes of the civil society.

As for requests for access to information of public importance, we may notice that they are primarily concerned with activities of the bodies in the execution of their power. At local level, most requests relate to the work of administrative bodies. It is also evident that there is no continued interest of individuals and the civil sector in monitoring the work of administrative bodies, but we may, statistically speaking, see a significant increase in requests for access to information of public importance before assembly sessions, preparations for elections, and budget preparation and adoption. In these periods, requests are made for insight and issuance of copies of documents on a yearly or several years basis (which often includes thousands of pages – the author's remark) and they are sent to organizational units within city/municipal administrations as the holders of a large number of activities concerning the said periods/situations, thus often fully blocking the work of some of those administrative bodies. A large number of requests, or amendments to requests, relates to information that contains data protected by some other laws, which is a new challenge for employees of administrative bodies and authorized/responsible persons, and requires the engagement of a broader corpus of professionals, and more time for interpretation and decision-making concerning replies to requests.19

It is important to stress that employees of all local self-government units and authorized/responsible persons for rendering information of public importance face cases that could be classified under Article 13 of the Law relating to abuse of the right of free access to information of public information. However, it is difficult for authorized persons to prove and defend their point in a complaint procedure, bearing in mind that some persons submit requests frequently and on a large scale, but with different contents. In addition, persons who thus make pressure on the employees take care not to exceed the limit of a “reasonable request” both in the quantity of information and in the number of copies of materials to be submitted to them within the framework of each individually submitted request.20

The law on free access to information of public importance and security services

After the adoption of the Law on Free Access to Information of Public Importance, a large number of requests was submitted for accessing information to the Security-Information Agency, the Military-Security Agency and the Ministry of Defence. The operations of these institutions were frequently the subject of criticism by the Ombudsman21 and a part of the civil sector. Based on the petition submitted by the NGO "Initiative of Young People for Human Rights" against the Republic of Serbia, concerning BIA activities, the European Court for Human Rights in Strasbourg passed a binding decision in 2013.22 For these reasons, bearing in mind the specific work of security services as government institutions, this matter requires special explanations.

Regardless of differences in definitions, as well as in determining the position and role of security services in the organization of administration, it is indisputable that all of them have one general role or task – providing timely, good-quality, intelligence-security information and knowledge to top political decision-makers in the state nomenclature of power. In the performance of their jobs and tasks, security services, implementing various operative measures, methods and activities, apply the principle of confidentiality.

Furthermore, the Security-Information Agency, as a special organization of the Government of the Republic of Serbia, the Military-Security Agency, and the Military-Intelligence Agency, as administrative bodies within the Ministry of Defence, belong to and are parts of the bodies with public authority. As such, in accordance with the laws, they are obliged to act upon submitted requests so as to enable free access to information of public importance.

Collecting of secret information is a sensitive sphere of activity of the security services, and we may undoubtedly conclude that the basic and the strongest weapon of intelligence and security services is confidentiality of work itself. Full transparency is more and more requested from the bodies with public authority, despite the fact that this requirement is not possible for security services that are parts of the state apparatus, for understandable reasons. On the other hand, the need of the public to know is also understandable and justified, since collection of secret information, and especially implementation of special measures, to a smaller (negligible) or larger (significant) degree, temporarily limit citizens' rights and freedoms guaranteed by international and national legal acts.

Intelligence-operative activity is characterized by top confidentiality regarding the object of interest (monitoring). A limited number of people are familiar with the actual subject of monitoring and have insight into its content. They are obliged to act professionally and respect the principle of conspiracy in performing these jobs, including maintaining confidentiality of information they have acquired in their work. Other people also have this obligation, including top government officials, members of Parliament, judges, prosecutors etc.

Viewed from the aspect of preventive activities of the security services, we observe that all measures aimed at the protection of vital values of the home state, both within and outside its borders, are implemented in top confidentiality. The goal is to surprise an actual or potential object of threat.

Regardless of whether information is collected from publicly available (open) sources, human intelligence (HUMINT/agents), or acquired by technical means, confidentiality in work concerning the subject and reasons of interests, i.e., the need to collect information, must certainly exist, otherwise there would be a danger of uncovering operative measures, of an intelligence officer or a source being temporarily or permanently prevented from acting, or of the object of interest becoming unavailable for observation, which would lead to the failure of an operation.

Any carelessness, irresponsibility, leak of information and abuse could not only be a reason for the failed realization of the set goal and/or task, but could also cause enormous harmful consequences, not only for the service, the society and the state as a whole, but threaten security and lives of those who directly work on the fulfilment of set goals.

Regardless of the manner of their operations, confidentiality in all segments of work and the obligation to keep information confidential are regulated by laws on security services, defence and confidentiality of information, and protected by the provisions of the Criminal Code. This obligation exists not only during operations, processing of collected information, keeping it secret and using it but also after the end of someone's tenure in the security services.

The Law on the Security Information Agency stipulates that its member is obliged to keep the Agency's secret information constituting government, military, official or trade secrets. At the same time, the member is obliged to keep secret his/her knowledge of the measures, activities and methods constituting or containing some of the above-listed secrets. This also relates to information whose revealing could harm interests of physical and legal entities. Such obligation remains even after a person stops working for the Agency. The Agency Director is a person authorized to release a member from the obligation to keep the confidentiality of certain information, most often for the purpose of acting as a witness in judicial proceedings.23

From the interpretation of Article 23 of the said Law, we may unequivocally conclude that the absolute and time-unlimited obligation of the top-secret principle for members of the Agency exists from the very moment they are employed by the Agency until their death, regardless of the expiry of the time limit for confidentiality of information.24

In the Republic of Serbia, the Law on Data Confidentiality regulates a unique system of defining and protecting confidential information. Based on the Law on Data Confidentiality, numerous decrees were adopted which additionally regulate issues stipulated by this Law: the manner and procedure for assigning confidentiality of information, i.e., documents25, protection of confidential information in information-telecommunication systems26, competencies of the Office of the National Security Council27, certificates for access to confidential information28, maintaining records for access to confidential information29, supervision over confidential information treatnebt30, but also physical-technical protection of confidential information31, as well as security protection of persons and objects.32

The Law on the Military-Security Agency and the Military-Intelligence Agency stipulates that, based on laws regulating protection of information and free access to information of public importance, both agencies are obliged to provide accurate, true and complete information on collected personal data, and information of public importance, with a clear definition of the exempted data: identities of active and former collaborators of the services, members of the services with hidden identities, information on third persons who would be harmed by revealing of such information, methods of collecting security and intelligence information, operations which are in process, the manner of implementation of special activities and measures, as well as data and information collected through exchange with foreign services and international organizations and secret data and information of other government bodies in possession of the given agency.33

The interpretation of provisions of the Law on the Military Security Agency and the Military Intelligence Agency, including the interpretation of the laws regulating access to information of public importance and personal data protection, does not offer a clear and sufficiently regulated matter of revealing certain information after a certain period of time defined for the confidentiality degree of documents (top secret, highly confidential, confidential, restricted). We should especially stress that even after the adoption of the Law on Data Confidentiality and its disputable implementation, other terms are in use for designating the confidentiality degree of some documents, such as the terms military and official secret, etc. For instance, there is a real danger of causing great harm by revealing information from a top secret document whose period of confidentiality has expired, or by removing its confidentiality, since that would reveal the identity of a former collaborator of the service, or operations and actions (in case it refers to a person who is no longer alive, but whose family and descendants might suffer certain consequences).33

Such a failure of regulation of full and unlimited protection of confidentiality could lead to serious impediments to the work of the Security-Information Agency, the Military-Security Agency and the Military-Intelligence Agency. It provides space for media exploitation of certain, topics interesting to the public, which could inflict unforeseeable damage to certain individuals, as well as to national security interests and the state as a whole.

Media and free access to information of public importance

The Law on Free Access to Information of Public Importance points to the significanceof the media in informing the public, and through some provisions it regulates theirposition in relation to other authorized actors.

Despite the fact that the Law defines a general principle of equality, it especiallydefines the prohibition of discrimination of journalists and the media on any grounds,concerning availability of certain information upon submitted requests.34 With this, thelawmaker is clearly in favour of a variety of ideas and opinions, protection of the competitionand prevention of monopoly in this field, fully with the aim of enabling citizens toform their own opinions on phenomena, events and persons, based on true, complete andtimely information on issues of public importance.35

In order to facilitate availability of information of public importance, recognizingsignificance of the profession dealing with offering general information to the public, with Article 17 of the Law the lawmaker has exempted journalists from expenses for making copies of documents containing the required information (regardless of the scope of these documents), and when it is needed for journalists' work.

In practice, there is a dilemma how to act in cases when access to information of public importance is requested by an association with the registered activity of media, i.e., informing the public, within the framework of its activities. Practice shows that in such cases, wishing to avoid complaints to the Ombudsman, they are most often exempted from expenses for making copies.36

The bodies with public authority want media as partners and media are of exceptional significance for quick and timely informing of the public on important issues. On the other hand, media also enjoy large protection of the government bodies because of their significant control role concerning all bodies with public authority. Investigative journalism often points to spheres in which the state should act, preventively and reactively (Lazić, 2017, pp. 283-284). Since media very often play the role of "the government guard", access to information, and measures for removing confidentiality designations from such information are of special importance for the process of holding someone responsible. However, media played a "limited role in unstable and transitional countries, as well as in advanced democracies" (Davis, 2010, pp. 261-262; Pešić and Pešić, 2011, p. 482).

Unfortunately, many media and journalists still do not to a significant degree make use of the rights offered to them by the Law on Free Access to Information of Public Importance, and, instead of looking for information from direct sources and building their own and public attitude based on objective and correct findings, they still rely on unofficial information, unnamed sources and unchecked information. In practice, it is noticeable that instead of real investigative journalism whose goal is to raise circulation, media exploit topics with sensationalist headlines, which creates a negative "climate" in the public toward government bodies and individuals, contribute to spreading of fear and legal insecurity among citizens, and increase hostile attitudes concerning the security services, and with such irresponsible writing damage the esteem both of the country and of their own profession.

Conclusion

The right of access to information of public importance, despite the fact that it is a relatively new right in democratic countries, is one of the most significant general human rights, and as such enjoys international and national legal protection.

It is guaranteed by the Constitution of the Republic of Serbia, the Law on Free Access to Information of Public Importance, the Law on General Administrative Procedure37, the Law on Administrative Disputes38, and the Law on the Constitutional Court.39

However, in practice it is very difficult to act upon requests for access to information only based on the principal law because, as it was already stressed in the introduction of the paper, requested information often contains data that is protected by some other laws.

The attitudes of a part of the academic public and civil society is that, in cases when there is a conflict of laws or norms, priority should be given to the Law on Free Access to Information of Public Importance, since it, as the only one regulating this matter, constitutes a lex specialis in comparison to other procedural and other laws.

As already stated, most frequently contradicted rights guaranteed by the Constitution and international acts are as follows: the right of the public to know, and the right to the protection of privacy. A significant amount of information remains unavailable to the public, and the reasons why access to requested information is denied are that such information contains data protected by a certain degree of confidentiality, i.e., data that, based on other laws, constitute some type of secret, which makes those data unavailable to the public.

According to the facts presented in this paper, we may conclude that the right of free access to information of public importance, as one of the fundamental human rights, cannot have priority over other guaranteed and protected human rights and freedoms. In this respect, it is necessary to pass a law on amendments and supplements to the Law on Free Access to Information of Public Importance, regardless of the fact that the existing law is considered one of the best and most comprehensive legal solutions in this field. A law cannot a priori deny or limit the right to privacy to certain categories of persons only for the purpose of performing certain jobs, functions or behaviours. For this reason, it is necessary to adopt a Catalogue of Protected Data that should be exempted from the possibility to be made available to the public.

Moreover, it is necessary to pass certain legal solutions by which certain information would enjoy absolute and time-unlimited confidentiality concerning documents containing it even after confidentiality of documents has expired, with the aim of protecting rights and freedoms of persons whose data are protected, as well as protecting rights and freedoms of their descendants (e.g. data which contain identities of members of security services who worked on collecting of certain information, or participated in certain actions, identities of active and former collaborators of services, members of services with hidden identities, methods of collecting security and intelligence data, and the manner of implementing special activities and measures, even if they as such are no longer implemented. Since in accessing information of public importance two rights are most commonly confronted – the right to the protection of personal data and the right of the public to know-and taking into consideration that the protection of both these rights is within the competence of the same independent government body, or the Ombudsman for information of public importance and protection of personal data – the legal separation of these two rights should be considered, and they should be assigned to the authority of different actors in order to prevent the possibility of favouring either of these rights.

In order to implement properly the existing laws in this field, effective and clear procedures must be established, and the relation must be defined between the normative and the real, while permanent theoretical and practical education must be introduced for employees of the bodies with public authority. Starting from the rights given to the civil sector by certain legal norms, it is necessary to, in some way, impose and introduce responsibility for their work, and ethical acting, taking into consideration their role in the realization of the public interest and creation of public opinion (sources of funding, spending of funds, responsibility for work that is opposed to the protection of national interests etc.).