15. 10. 2008

RESTRICTED RIGHTS OF THE THE COMMISSIONER FOR INFORMATION OF PUBLIC IMPORTANCE

Belgrade, October 15, 2008 (Danas) – The representatives of the Serbian Assembly continued to work yesterday by discussing the amendments to the Draft Law on Personal Data Protection.

There were altogether 32 amendments to the Draft Law, and the government and the Legislative Committee of the National Assembly accepted 11 of them, out of which 7 filed by the Ombudsman, with the aim of ensuring more efficient and complete personal data protection. The Assembly did not accept the amendment handed in by the Ombudsman and the Commissioner for the Information of Public Importance which requires that the Commissioner might have the right to access and oversee all the data without any limitations, i.e. that the data processing body could not limit the right of the Commissioner regarding national security.

However, the delegate’s motion to „ask the president of the Supreme Court of Cassation (VKS) in such cases“ was accepted. The amendment stated that the data processor was obliged to ask the VKS president for the reasons for the limitation of the right of access to the data within eight days of the Commissioner’s requirement, and the VKS president would be obliged to give his or her opinion to the data processor within the following eight days. Also, the data processor would be obliged to notify the Commissioner about the VKS president’s opinion within the next eight days.

- The government accepted the amendment because we believe that it conforms to international documents. That way, it is ensured that the decision was reached not only by the body processing the document, but also that it needed to ask a fully independent body for an opinion, which is the president o f the Supreme Court of Cassation – Snežana Malović, the Minister of Justice, explained yesterday and added that the amendment referred to documents regarding national security, pre-trial criminal proceedings and criminal proceedings.

Malović stressed that other international documents, such as the European Convention on Automatic Processing of Personal Data and the European Parliament Directive also contain certain limitations of the acces to the documentation, but also the dual level of the decision-making proces.

Ombudsman, Saša Janković, explained that the Committee had not accepted his amendment, which stated that “the data processing body could not pass decisions on its own or limit the right of the Commissioner for Information of Public Importance regarding national safety”.

- Still, another amendment suggested by a delegate was accepted by the Committee and approved by the government, and it practically fully respects the aforementioned principle – Janković said, stating that a new obligation of asking the VKS president for his or her opinion had been introduced. He claimed that there was no reason to doubt that the Commissioner would acknowledge the opinion of the VKS president. That way, the personal data collector or processor would not be responsible for deciding whether the data would be accessible to the Commissioner or not, but another body would be in charge of that – said the Ombudsman.

When asked how that referred to the media in particular, and whether they would be able to reach the information needed, Janković replied that certain information was not for the public and could not be revealed when the public expected it.

- The core of the amendment is that, when there are reasons not to divulge the data collected on a certain citizen, there will exist a body which will evaluate whether the data collection and processing have been done according to law – Ombudsman explained and added that the Legislative Committee believed that in such situations it should not be the Commissioner’s job, but rather that of the VKS president.

During the morning discussion, the delegates of the Serbian Assembly stated that the Law on Personal Data Protection ought to be further specified by amendments in order to avoid misuse. Some also said that the government should accept those amendments which would define certain solutions more precisely.

A delegate of the Social Democratic Party (SDP) and the “For a European Serbia” alliance (ZES), Meho Omerović, asked that those amendments of the Ombudsman ought to be accepted which precisely define those regulations which restrict personal rights to view the data, because the suggested regulations contained too many “generalizations” that lend themselves to misuse. He said that SDP supported passing the Law, because the citizens would have the right to know whether any data were being collected on them and whether those were correct or useful. A Liberal Democratic Party (LDP) delegate, Zoran Ostojić, claimed that the Law on Personal Data Protection could not be applied without the Law on Classification, i.e. the Law on the Secrecy of Information, whereas Serbian Radical Party (SRS) delegates asserted that the Law contained many flaws and uncertainties, as well as that the text would only benefit from their amendments. They also took it amiss that the government had accepted only a few of the amendments filed by the Ombudsman, since they believed that those would also have contributed to the quality of the law.

In the Future Amended Title

The Law on Personal Data Protection regulates the citizens’ data protection, their processing and use, as well as the citizens’ right to have insight into their personal data. According to the Draft Law, there are certain limitations to the personal data protection, proceedings at the responsible body for the personal data protection, as well as data safety. The key person for personal data protection will be the Commissioner for the Information of Public Importance, who will in the future have the amended title: the Commissioner for the Information and Personal Data Protection. That will be an independent state position with the authorization to autonomously perform his or her duties.