Authority:
Commissioner for Information of Public Importance and Personal Data Protection

Country/State: 
Serbia

Case title: 
Citizen v. Military Security Agency (MSA)
   
Official citation:
071-01-3501/2017-03

Date of decision:   
04.03.2019.
       
Relevant law:
Law on Military Security Agency and Military Intelligence Agency, Decree on the detailed criteria for designating the TOP SECRET RS and SECRET RS classification level

Decision: 
The authority should provide the applicant with access to information on the total number of retained data from Records of the received requests for access to retained data for 2014 and 2015 year.
Public authority’s decision to reject access to information is overruled;

Key words:   
Military security agency, retained data, classified information, national security

Case Summary:

1.    Facts
A citizen filed an access to information request with the Military Intelligence Agency pertaining to the public authority’s record on number of retained data in 2014 and 2015 that can be found from Records of the received requests for access to retained data.

The Military Security Agency denied access to information based on the exemption that allowing access to information would jeopardize national security of the Republic of Serbia. The Military Security Agency added that disclosure of data from the said documents to an unauthorized person would cause damage to the interests of the Republic of Serbia, which could have a concrete consequence in jeopardizing national security or activities of the security service, in the specific case of the Military Security Agency and in the defense of the country.

2.    Decision
The Commissioner finds that the first instance authority erred in rejecting, by the contested decision, the relevant part of the Appellant’s request, citing the provisions of Art. 9, paras. 3 and 5 of the Law on Free Access to Information of Public Importance.

The first instance authority failed to provide evidence regarding the fulfillment of the conditions for denying access to the information. In order for the authority to deny access to the requested information, it is obliged to prove that the information or document is marked as secret, and that the disclosure thereof could result in serious legal or other consequences for interests protected by law, which outweigh the interest in accessing information. The Commissioner rejected the argument as the exemption should refer to real harm rather than a hypothetical possibility of harm occurring.

The Commissioner concluded that the MSA had failed to provide evidence that there existed a causal link between the potential disclosure of the requested information and the consequences that might, as a result, affect the interests of the Republic of Serbia, or that the disclosure of such information could result in serious legal or other consequences for the interests protected by law, including the Decree on the detailed criteria for designating the TOP SECRET RS and SECRET RS classification level, which outweigh the interest in accessing information within the meaning of Article 8, paragraph 1 of the Law on Free Access to Information of Public Importance. Namely, given the nature and content of the requested information relating to the total number (numerical representation), such consequences could not reasonably be expected, especially given the possibility of extracting information, in accordance with the provision of Article 12 of the Law on Free Access to Information of public importance.

Note (Optional):

Resource:
The case is noted in brief in the Commissioner’s annual publication for year 2019, available on website https://www.poverenik.rs/en/publications/manuals.html (in Serbian only).