Personal Data and FOI conflicts related to the access to the Archives

1. Personal Data and FOI conflicts related to the access to the Archives Amira Krehić Bosnia & Herzegovina

2. Bosnia and Herzegovina • BH Freedom of Access to Information Act (Official Gazette of B&H, No.28/2000.) • Federation Freedom of Access to Information Act (Official Gazette of B&H, No. 32/2001.) • RS Freedom of Access to Information Act (Official Gazette of B&H, No. 20/2001

3. The Freedom of Access to Information Act in the Federation of Bosnia and Herzegovina established as a general rule disclosure of all information in the control a public authority. • The non-disclosure of the information is exception and disclosure is an obligation. • No excuses not to disclose all kinds of information,including the personal information.

4. Personal information, personal and “confidential” files may not be exempted from the general rule of obligatory disclosure of information in the control of public authorities. • Exemptions (when an information may not be disclosed) may exist, but only those envisaged by the Act and explicitly “upon applying the public interest test” in which the authority determine that the “disclosure is not justified in the public interest”.

5. Exemptions are in the Freedom of Access to Information Act and may be applied only in the way foreseen by the Act, with possibility of filing complaints against the public authority’s decisions in administrative procedure, as well as through addressing to the Ombudsmen or competent court.

6. Law on the Protection of Personal Data - Official Gazette of BiH, 32/2001 (1/5) • The purpose of this Law is to secure in the territory of Bosnia and Herzegovina for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to the processing of personal data relating to him ("data protection").

7. The Law on the Protection of Personal Data treats in particular: (2/5) • „personal data” which means any information relating to an identified or identifiable natural person /identification number or one or more factors specific to his physical, physiological, mental, economic, cultural or social identity/

8. The Law on the Protection of Personal Data treats in particular: (3/5) • “special categories of data” which means any personal data relating to racial origin, nationality, national or ethnic origin, political opinion or party affiliation, trade union affiliation, religious or other belief, health, sexual life and criminal conviction.

9. The Law on the Protection of Personal Data treats in particular: (4/5) • „data access” means any operation that enables a third party to view personal data without the right to use it thereafter for other purposes • „the data subject's consent” mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed

10. (5/5) • In the practice there was no concrete application of this Law or court judgment so in the future it could be expected cases which will refuse access to information although FOI is lex specialis.

11. The Law on the Protection of Secret Data • The Law on the Protection of Secret Data is in parliamentary procedure for adoption. Nor CSpi nor other NGOs were included in creating of this Law so we can’t predict would provisions of this Law will be in contradictory with FOIA.

12. Archives and Personal Data Protection in Documents related with the war It’s still too early to speak about possibility ofaccess to the information related to the war because there is neither unique evaluation nor public opinion about nature of the conflict in Bosnia and Herzegovina: 

13. Was it aggression or civil war • Destruction and killing of enormous proportion • Destroying of the property, hard violation of the human rights through brutality, raping, torturing, murdering and persecution • Destroying of the natural and economic resources

14. Non respecting of the War Conventions – there were used methods and resources against civilians which are forbidden by all international and humanitarian rights and standards Those are reasons for no sooner collecting and documenting crimes and committers whose guilty will be determinate by ICTY (International Criminal Tribunal for the former Yugoslavia) in Haag, BiH Court – War Crime Section.

15. Previous mentioned facts were base for establishing following bodies and truth-seeking mechanisms in the state: • The International Commission on Missing Persons (ICMP) Missing Person’s families never got any information related on missing persons, primary and secondary mass graves requested from Republika Srpska

16. Federal And Republic Serpska Commission for Missing Persons • 27.734 people had been registered as missing until August 2005 • 17.500 victims have been exhumed

17. Missing Persons Institute of BiH • Missing Persons Institute of BiH was lunched on August 30, 2005 with the goal to facilitate the process of tracing missing persons and more efficient identification of the mortal reminds of missing persons from or in BiH

18. RS Commission to report on events in and around Srebrenica between the 10th and 19th of July 1995 • This Commission was set up to conduct detailed investigation so that family members and the public can be informed about the role of the Republika Srpska in the massacre at Srebrenica in July 1995 and attempts to cover up the facts and the fate and location of the people who went form Srebrenica in July 1995.

19. Based on the received data The Working Group created a list of 800 individuals members of the RS Army, Ministry of Internal Affairs and Civil Protection Service deployed in the Srebrenica area in July 1995

20. Final Report on Srebrenica on July 10 to 19, 1995, was submitted to the BiH Prosecutor, to the International Criminal Tribunal for the former Yugoslavia (ICTY) and to the Office of the High Representative (OHR).

21. All above mentioned shows that is still too early to talk about possibilities of access to information from war and to lists of names i.e. personal data of the persons who took apart in this events.