YOUTH INITIATIVE FOR HUMAN RIGHTS v. SERBIA JUDGMENT
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(5) Disclose information or a document formally qualified as State, official,
commercial or other secret, or as accessible to a limited group of people, if the
disclosure of that information or document could seriously undermine a legitimate
interest which has priority over freedom of information.”
12. In accordance with section 22(1) of the Act, an applicant may lodge
a complaint with the Commissioner if a public authority refuses his or her
request for access to information. The decisions of the Commissioner are
final and binding (see section 28(1) of the Act).
III. RELEVANT INTERNATIONAL DOCUMENTS
13. The International Covenant on Civil and Political Rights, adopted
under the auspices of the United Nations on 16 December 1966, entered into
force in respect of Serbia on 12 March 2001. Article 19 of that Covenant
guarantees freedom of expression in similar terms to those used in Article
10 of the Convention. In July 2011 the Human Rights Committee, the body
of independent experts set up to monitor the implementation of that treaty,
reiterated in its General Comment No. 34 that Article 19 of the Covenant
embraced a right of access to information held by public bodies (document
CCPR/C/GC/34 of 12 September 2011, § 18). It further stated that such
information included records held by a public body, regardless of the form
in which the information was stored, its source and the date of production
(ibid.). Lastly, the Human Rights Committee emphasised that when a State
party imposed restrictions on the exercise of freedom of expression, these
may not put in jeopardy the right itself; in other words, the relation between
right and restriction and between norm and exception must not be reversed
(see § 21 of that document).
14. The Joint Declaration by the United Nations Special Rapporteur on
Freedom of Opinion and Expression, the OSCE Representative on Freedom
of the Media and the OAS Special Rapporteur on Freedom of Expression of
December 2004 reads, in the relevant part, as follows:
“The right to access information held by public authorities is a fundamental human
right which should be given effect at the national level through comprehensive
legislation (for example Freedom of Information Acts) based on the principle of
maximum disclosure, establishing a presumption that all information is accessible
subject only to a narrow system of exceptions.
...
Access to information is a citizens’ right. As a result, the procedures for accessing
information should be simple, rapid and free or low-cost.
The right of access should be subject to a narrow, carefully tailored system of
exceptions to protect overriding public and private interests, including privacy.
Exceptions should apply only where there is a risk of substantial harm to the protected
interest and where that harm is greater than the overall public interest in having access
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