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The Commissioner annulled the decision of the National Fund for Health Insurance which denied access to data on Covid-19 procurements

The Commissioner for Information of Public Importance and Personal Data Protection annulled the decision by which the National Fund for Health Insurance refused to submit data to Transparency Serbia on the value of conducted procurements to counter the pandemic. TS previously filed a complaint with the Commissioner against the fund for refusing to fulfil the request. The Commissioner also instructed the fund to determine “whether there are all conditions to exclude or restrict free access to information”, and if so, “whether in this particular case and what severe legal or other consequences could realistically occur if the requested information is made available to the public.”

In July 2020, Transparency Serbia requested the fund data on procurements from the first half of 2020, which the fund had not announced. First of all, these are the procurements carried out based on the previous Law on Public Procurement provision. That provision enabled the procuring entities not to conduct any of the procurement procedures in case it is necessary to protect human life and health, but with the duty to provide the extent to which the application of the principles of transparency and competition is possible. Also, TS requested data on other exempted procurements (e.g. based on interstate agreements, donations from commodity reserves).

The fund refused to submit the requested information. In addition, it labelled the request “inadmissible”, which cannot be accurate in any case because it is undoubtedly information created in the process of fund’s work and is in its possession. As the only reason for refusal, the fund states that the requested information is contained in documents marked with the secrecy degree of “strictly confidential”, according to the conclusion of the Serbian Government of 15 March 2020 (SP 05 number: 00-96 / 2020-1). It is impossible to verify the truthfulness of this claim because the government did not publish that conclusion. Transparency Serbia requested this act from the government on 15 April 2020, but the government ignored the request, and the administrative dispute on the claim of TS was not resolved.

Declared secrecy of documents can only be a formal basis for restricting the right to access information. An essential foundation for such restriction should be established as well - that such secrecy is necessary to protect another overriding interest, which has a constitutional and legal basis which the Commissioner confirms.

For the National Fund for Health Insurance to properly consider the request for access to information, Transparency Serbia believes that the fund should take the following facts into account:

  1. That the Law on Public Procurement, which was in force until 30 June 2020 (SG RS no. 124/12 and 14/15), in Article 7, para. 2. stipulates that in the case of procurement to which the law does not apply (among others, to those conducted “to ensure basic living conditions in cases of natural disasters when consequences endanger lives or human health) apply the principles of the Law on Public Procurement, including also the principle of transparency (Article 11). These standards must be interpreted so that the procuring entity in connection with such procurements will ensure the publicity of the data to the extent that it does not endanger the protected interests, which in no case may result in the confidentiality of all data.
  1. That information on some procurements to which the request for access to information refers was already published. The Serbian president, prime minister and some MPs (e.g. Aleksandra Martinovic, Marija Obradovic) publicly presented (unverifiable) information on the quantity and value of procurements of medical equipment (e.g. ventilators). Due to this already committed violation of the secrecy of “strictly confidential” data, it would not be possible to defend the position that access to information is denied in its entirety.
  1. That the Data Secrecy Law recognises the possibility for the user of secret data to propose data declassification to an authorised person (Article 23) when secrecy ceases is not necessary.
  1. That neither previous nor current Law on Public Procurement leaves no room to hide all data from the public in a procedure for health-related procurement. This type of protection is provided only in connection with certain procurements in the field of “defence and security.“ We highlight that no regulation passed during the state of emergency that was valid during the last year regulated this matter differently.