FREEDOM OF ACCESS TO GOVERNMENTAL INFORMATION

 

1. CONSTITUTIONAL PROVISIONS

Article 34 of the Ukrainian Constitution adopted on June 28, 1996, guarantees „the right for freedom of thought and speech, the freedom of expression of opinions and convictions“.Each citizen has the right „to freely collect, store, use and distribute information orally, in writing or in any other way on one’s own choice“.

Realizing these rights may be limited by a law intended at the defense of national security, territorial integrity or public order with the purpose of preventing clashes or crimes, intended at the protection of the population health, reputation or rights of other people, at prevention of disclosing confidential information or for supporting the authority and integrity of the court“.

One can see that the set of restrictions is rather wide, however each of them must be determined by law.

It is noteworthy that such a formulation as „supporting the authority and integrity of the court“ gives an opportunity to ban completely any criticism of the system of justice, since any information on the inequality of sides at court or on bribe taking, even on the insufficient professionalism of judges, etc. can be estimated as inflicting damage on the authority of the justice.

The Constitutional Court of Ukraine have not considered yet any cases concerning the access to public information.

 

2. FREEDOM OF INFORMATION LAW

The basic legislation acts in the sphere of the freedom of information is the law „On information“ adopted in 1992, the law „On Print Media“ adopted in 1992, the law „On TV and broadcasting“ adopted in 1994, the law „On informative agencies“ adopted in 1995,the law „On National Archives Foundation and Archives Bodies“ adopted in 1993, the law „On state secrets“ adopted in 1994 and „List of information items that belong to state secrets“ adopted in 1995 by the State Committee of Ukraine on State Secrets.

The adoption of the law „On information“ is a doubtless achievement of the young state. This law before the adoption of the new Constitution guaranteed the access to information by defining the system of relations and obligations in this sphere, usual for a democratic state.

Article 10 of the law guarantees the right for the access to information and forces state agencies of all levels to inform the public on their activities and decisions taken, while Article 21 describes the ways of making the official information public, including disclosing it to interested persons orally, in writing or in other way. The resolution of the President of Ukraine of 28 March 1996 „On measures to enhance the knowledge of the Ukrainian population concerning the main directions of the state policy“ is also noteworthy. According to this resolution, all the structures of the executive power (Cabinet of Ministers, Presidential administration, ministries and other central, region, city and district administrative bodies) must organize the system of permanent informing the population about actual questions of internal and external state policy. To this end, monthly „days of information“ are suggested, in which top leaders and executives must participate. Most ministries, agencies and local administrations began to hold regular briefings at the created press services. The President’s resolution did not provide any exceptions for law enforcing and security agencies, but, however, monthly briefings, as far as we know, are held only at the Ministry of Internal Affairs and the General Procurator’s office. It should be noted that the Ukrainian legislation does not contain any special indications concerning the obligation of the USS to inform the public on its activities.

It is necessary to note in this connection the importance of the President’s resolution of 23 November 1995 „On coordination of press services and informative-analytic bodies of the executive power“, for this resolution practically creates the vertical of press services of all levels of the executive power. The duty of the coordination of all press services is charged on the Presidential press service which has to provide the conduction of monthly briefings for heads of the press services of the Cabinet of Ministers, ministries and other central bodies of the executive power. All the press services are obliged to coordinate, with the Presidential press service, all the materials which are passed to mass media and „contain evaluation of the external and internal state policy which can have substantial public resonance“. Besides, these services must inform the Presidential press service about all the activities held by executive power bodies or executives with mass media.

We believe that these resolutions, which seem to make the official information more accessible, lead in fact to a rigid state control on such information.

Article 29 of the law prohibits to restrict the access to open information, though it grants advantages in obtaining information to persons who need this information to fulfill their professional duties, which, from the viewpoint of Article 45 stating equal rights of all participants of information relations, seems to be somewhat doubtful.

The list of documents and information items, which should not be passed to public, is given in Article 37. In particular this is:

– information which is considered secret according to the operating law;

– confidential information;

– information on the operative and investigating activities of the Procurator’s offices, MIA, USS and court which, when made public, can inflict some damage on the operative and investigation activities, when it can violate the right for the just and objective consideration of cases by the court, when it can threaten the life or health of some person;

– information about private life of citizens;

– intra-agency service information connected with taking decisions that have not been taken yet;

– information of financial bodies handed to controlling agencies;

– information which should not be made public in accordance with other laws and normative acts.

The restrictions on the freedom of information will be considered with more details in Sections 3 and 4.

Article 32 of the law „On information“ describes the procedure of satisfying requests for official information; this article forces state agencies „to give away information about their activities orally, in writing, over a telephone or using public speeches of state officials“.Such a formulation enables bureaucrats to refuse giving written answers to concrete questions, since they can refer to the public speeches of officials of their agency, whereas the same article defines a request as a written demand for granting information orally or in writing, i.e. the form of the response is determined by the author of the request. For the realization of the right for free access to information the questions who is responsible for what are most important. These questions are treated in Articles 35, 48, which describe the procedure of handing complaints about unjust actions of state agencies in information relations. The complaints on these actions are handed to the state bodies of the higher level, and if the complaint has not been satisfied, than it can be directed to the court.

Besides, Article 47 of the law treating the responsibility for the violation of legal norms on information stipulates a disciplinary, civic, administrative or criminal responsibility according to Ukrainian laws, among them figures an ungrounded refusal in granting information or unjustified inclusion of this information to the classified categories.

However, we have never heard of any case of punishment, to say nothing of criminal punishment, in this sphere, though the cases of unjustified refusals in granting information for requests are plentiful, as well as arbitrary treated restrictions on granting information or mere silence in answer to a request, especially on a local level. The difficulty is that the civil and criminal legislation are not conformed with the legislation in the information sphere.

The operating Civil Code never mentions the topic considered. In the draft of the new Civil Code a big new part on the rights not concerning the state of citizens is introduced (Article 294): a natural person, according to the law, have the right to search, obtain and distribute the information; on the contrary, the collection, storing, usage and distribution of information on the private life of a natural person is not admitted against the person’s will, as well as of information making the state secret or the confidential information, concerning a legal person. The draft contains an important proposition that the information which is processed by a state officer while fulfilling his service duties, as well as the information from the official sources (reports, shorthand records, mass media communications) is assumed to be truthful, and the person who distributes this information must not check its veracity and is not responsible in the case where it is shown false.

Neither in the operating Criminal Code nor in its new draft there are special articles stating the responsibility of illegal actions of state officers in the freedom of information. Such actions fall only under the Article 167 „Negligence“ (and similar articles of the draft), such as „not fulfilling or negligent fulfilling by state officers of their service duties as a consequence of the negligent or lax fulfillment of them which resulted in a substantial damage of state or public interests or rights and interests of separate natural and legal persons, guarded by the law“.The Code mentions the punishment by incarceration by the term up to three years, or correcting works for the time up to two years, or the fine from five to fifteen minimal untaxed incomes with devoiding of the right to occupy certain positions.

About rights of individuals to obtain access to files concerning themselves. Article 23 of the Law „On information“ permits in some cases, stipulated by law, to gather information on citizens without their consent. According to Article 31 citizens have the right to know, during the collection of information, which information is being collected and with what purpose; they also have access to this information except in the cases stipulated by law. One of such cases is, in particular, the one when the information related to the crime investigation is collected about this very person.

According to Article 9 of the Law „On crime investigation activities“ in each case when there are sufficient reasons for starting the investigation, a special file is started (except when persons are checked for their trustworthiness to work with state, military and service secrets). If after six months no data are found to witness that the person under investigation is guilty of the crime which had been investigated, then the special file is destroyed. All the information obtained as the result of the investigation concerning the private life, honor and dignity should not be kept and must be destroyed unless it concerns illegal actions.

 

3. CLASSIFICATION OF INFORMATION. STATE SECRETS

Certainly, the most important clauses of the law treat the restrictions on the access to information.

Article 30 of the Law „On information“ divides classified information into confidential and secret.

Since the confidential information consists of the data which are owned, used, or managed by definite physical or juridical persons, coming into possession of the data by spending their own means, hence the mode of granting and distributing this information is determined by the owners. The exception is made to the information whose legal regime is set by the Parliament (concerning statistics, environment protection, bank operations, taxes, etc.), as well as the information, which, being kept secret, threatens life and health of people.

The secret information is defined as „state or other secrets, determined by law, divulgence of which will damage either a person, or society, or state“.

The definition of a state secret and the procedure of access to the information which makes a state secret is defined by the law „On state secrets“ and „List of information items that belong to state secrets“.As to „other secrets, determined by law“, here everything is rather fuzzy. The procedure of relating some information to secrets, according to Article 30 of the law „On information“ is determined by the corresponding agencies which must abide to the law „On information“.Article 21 of this law stipulates that the sources and the procedure of obtaining, using, distributing and storing official information of state agencies of all levels is defined by the legal acts of these agencies, and one naturally expects that the needed restrictions would be explicitly listed in the corresponding laws, such as the law „On militia“ (1990) or „On security service“ (1992). Article 3 of the law „On militia“ forbids to divulge the data concerning service secrets, and Article 7 of the law „On security service“ forbids to divulge military, service and commercial secrets, though the law does not contain any definition of these terms. Thus, relating some information to secrets seem to be defined and regulated by intra-agency acts and instructions; the latter may be created only according to Article 37 of the law „On information“ which contains general statement on information that is not subjected to be obligatorily given on requests. In particular, there is a statement that „information shall not be divulged if prohibited by other legal or normative acts“.It is known that intra-agency acts are not published in the official press, and in this way state agencies become similar to owners of information, who divulge information or keep it secret as they found best. It should be noted that, according to Article 21 of the law „On information“, unpublished normative acts about human rights and liberties are juridically invalid.

The only law that more completely regulates the circulation of information is the law „On state secrets“ adopted in January 1994 and „List of information items that belong to state secrets“ (LIISS) registered by the Ministry of Justice in August 1995.

The law „On state secrets“ defines in Article 1 a state secret as an item of secret information relating to defense, economy, foreign affairs, state security and defense of order, the divulgence of which may cause damage to vital interests of Ukraine, hence they must be guarded by state. The degree of secrecy of information is determined by a potential damage as the result of its divulgence, that is why there must be various restrictions according to the degree of secrecy.

The criteria of determining the degree of secrecy must be worked out by the State Committee of Ukraine on State Secrets. The same Committee is a special central organ empowered to keep state secrets (Article 3).

Article 7 of the law rules that relating information to state secrets shall be done by a well-motivated decision of the State Expert on secrets. The State Experts, according to Article 8, are the President of Ukraine, the Speaker of the Parliament, the Prime-Minister and other top state officials, from the corresponding spheres of state structures, appointed by the President of Ukraine. Since the spheres of state activity needing the closure of information and defined in Article 6 of the law are rather broad, it is incomprehensible, how many state experts must be in Ukraine, what are the reasons of their motivation when relating an item of information to a state secret, since no definitions of vital interests of Ukraine (Article 9) are present in the law. Besides, the degree of secrecy of information, according to Article 9, is defined by a State Expert, and every concrete carrier of secret information must establish the level (such as „especially important“, „secret“, „top secret“) which is defined by a special state official and approved by the head of the enterprise, establishment or organization, whose activity is connected with state secrets, but it is not clear how this process is connected with the level of secrecy established by the experts.

It should be noted that Article 6 of the law prohibits to relate to secrets any kind of information, if this prohibition violates the constitutional rights and liberties of man and citizen, if it can damage the health or security of the population. Nobody has the right to make secret any information on natural calamities, catastrophes and so on, which have already occurred or may occur, on the ecological state of the environment, on the living standard of the people, including food, clothing, living accommodation, medical and social aid, as well as social and demographic indices, the level of law enforcing, as well as enlightenment and culture of the population, on illegal actions of state agencies of any level. However, the law covers only state secrets and does not touch other restrictions on the access to information.

In the list of information items, contained in Article 6, that can be related to state secrets, there are such characteristics in the sphere of defense as the size of the armed forces of Ukraine, the number of frontier guards and national guards of Ukraine; in the sphere of economy secret is financing of defense industry; in the sphere of state security and law-enforcing activity secret is financing of the intelligence, counter intelligence and operative search activity (i.e., in fact, financing of the USS).

Article 38 stipulates responsibility for violating laws on state secrets, including the violation of making information secret or classified contrary to Article 6, if the information actually is not a state secret. However, since all this activity is secret, very wide spread and since during many decades the state activity was actually secret, it is difficult to expect fast progress in this sphere. That is why to have a free access to the list of data making state secrets is very important. The list is vast enough, detailed and covers the kinds of state activity listed in Article 6 of the law „On state secrets“.

If the first part of the list, concerning defense, does not bring about any protest (in particular, in contrast to the law, it does not contain prohibition on disclosing the information on the size of the armed forces), then the second part, concerning economy, is somewhat queer. Thus, Clause 2.6 relates to secrets the quantity of medicine and food supplied to the armed forces in peace time. To which vital interests of Ukraine does it threaten? Clause 2.36 relates to secret the data on expenditures on the defense orders as a whole in Ukraine. It is not clear which defense mysteries are covered here, but it is clear that this article makes the budget less transparent and controllable, and this concerns the interests of the mass tax-payer. Clause 2.40 in its general form repeats Clauses 1.32 and 1.33 of the list that relate to secrets technologies for making military products.

Clause 2.25 declares secret data on special automobile roads (description of roads leading to military and other secret objects, as well as to big railway stations, bridges, sea and river ports). It is difficult to fancy how can be kept in secret information on the roads leading to big railway stations? Obeying this law to the letter, no law-abiding citizen may show a stranger the way to the railway station.

Articles on the security and law-enforcing, any information connected with criminal investigation is secret (Clauses 4.1-4.9), and the Security Service becomes completely closed for the society, since even the information of the number of agents (Clause 4.14) may not be published. Clause 4.17 relates to secrets the data on the status, results and prospects of the USS“ cooperation with special services of foreign countries. It is amazing why the very fact of the cooperation must be kept in secret, as well as on the direction, concrete results and even prospects, the more so that such data do appear in various mass media, and, at the first glance, no damage is done. This clause is obviously archaic and needs to be perfected. Clause 4.8 relates to secrets the number of custom officers; again it is puzzling in which way can these data inflict damage to Ukraine. Clause 49 prevents the public know anything on „the actual status“ of protecting state secrets. „The actual state“ is not a very transparent term, but it seems that Clauses 4.14, 4.18 and 4.49 tend to protect rather the interests of some agencies than those of the state.

Clause 4.48, connected with the data on executed death penalties is worth of special attention. First of all, it is not clear why this information is given the top level of secrecy, although the verdict is declared openly. If it is explained by humane considerations, then why the relatives are not allowed to bury the corpse and even the burial place is kept in secret? If the capital punishment is executed to intimidate other most hardened criminals, as the authorities declare, then, it seems, the executions must be made public. All this secrecy is perhaps due to the fact that the state authorities subconsciously understand that the death penalty is amoral. By the way, Clause 4.48 is ambiguous, but it permits the authorities to interpret it as forbidding to publish the number of executions.

Article 10 of the Law „On state secret“ formulated that the procedure if forming and publishing the LIISS is determined by the Cabinet of Ministers of Ukraine. On 28 April 1994 the latter adopted a corresponding Resolution No. 278, whose item 3 envisaged publishing the CIISS and the list of corrections and amendments to it in the periodical official bulletin of the Cabinet of Ministers. Item 4 of the resolution confirmed the norms described in Article 10 of the Law: corrections and amendments to the CIISS must be published not later than three months after the reception of the corresponding decision of the state expert in charge of state secrets by the Committee. Item 5 stressed that records in the CIISS may not contain state secrets. Yet, the CIISS was approved as late as in 31 July 1995 and published in „Uriadovy kuryer“ („Government messenger“) on 17 August 1995. Unfortunately, the attempts at openness ended. The first amendments to the LIISS introduced by the Committee orders No. 2 of 29 September 1995, No. 3 of 12 December 1995, No. 1 of 16 January 1996 and No. 2 of 6 February 1996 were not published: the first two are classified as „secret“, the others – as „for service use only“. In our opinion, this is a brutal violation of operating laws and norms.

 

4. ACCESS TO THE OFFICIAL INFORMATION IN UKRAINE. EXAMPLES

While the Ukrainian law „On information“ may be considered to be satisfactory, the actual reality in the sphere of the freedom of information is very far from the norms fixed in the law.

Characterizing the actual situation with the freedom of access for natural and legal persons to information, one has to state that the authorities very unwillingly part with information, dodge requests or just keep silence.

Thus, having received the request from the Ukrainian-American Bureau for human rights protection about the number of legal and disclosed illegal immigrants, on the number of refugees, on the number of representatives of the repressed peoples, on the size of the aid to refugees and migrants, the Ministry of nationalities, migration and cults answered that all these data are classified in the ministry, and the official statistics must be sought only in the Ministry of statistics. This ministry gives out, in the reference book, information only on the migration flows. The request to the Ministry of justice, why this information is classified remained without an answer.

Sometimes state agencies answer requests through telephone, and only partly. So, for example, we sent a request to the Department of mercy, under the President of Ukraine. We asked about the names of the Commission members, about the number of the applications for mercy received by the Commission in 1992-1996, about the number of the cases considered, accompanied by articles of the CC of Ukraine, for which the guilty were condemned; we also asked where the normative acts regulating the work of the Department and Commission were published. In response we got a telephone call from the Head of a Sector of the Department of mercy. She told us where the requested documents were published and that the names of the Commission members are secret to ensure their security and that all other questions would become clear after we studied the documents on the Commission’s activity. Kharkiv Group for human rights protection (KhG) did not agree with this advice and asked to answer all the questions; the answer was not given.

When KhG requested the USS about the legal acts that regulate the USS activity in the sphere not covered by the law on this agency, in particular on detention and keeping people under arrest in investigation cells of the USS, on violating laws by USS agents, the deputy chairman of the USS glibly explained that everything is done in strict accordance with laws and did not answer concretely a single question, saying that no violations of law have never been committed. Nonetheless, it is widely known that at least one criminal case about the death of the suspect interrogated in detention block of the USS in Lviv region was started. It is also known that this detention block was closed because, beside the death as a result of torture, another suspect escaped from this detention block. KhG repeated the request, but has not received any answer yet.

There was no answer to a similar request to the Parliamentary Commission for defense and security during four months. We received th answer only after the reception of the Commission chairman V.Mukhin. But his letter included only answer to one question from many questions in our request.

Sometimes one receives red tape and advice to turn to another organization. For example, when we sent a request to the Minister of Justice on the international acts operating in Ukraine, on the documents defining such terms as „service secret“ or for „service use only“, the official in charge of reception of citizens proposed us to turn to the Main Directorate of the legal information and propaganda of legal knowledge of the same Ministry of Justice, located in the same building.

When we sent the request to the Ministry of Internal Affairs about the number of detention blocks and prisons, on the disease and mortality rate in penitentiary establishments, on the expenditures for upkeep of convicts, etc., the Deputy Minister answered only that such statistics is given at the briefings at the Center of public relations of the Ministry, although it was quite clear that the reports on briefings are published incompletely, that only a small proportion of our questions is answered at the briefings and that we, living in the other city, cannot be present at all briefings.

Other ministries and agencies completely ignore requests and do not answer at all. To this category belong the Ministries of health protection, education and defense.

We shall describe one more example. Somewhere in the middle of 1996 we happened to see a new magazine „Polemika“ which had already been published for six months. The names of the editorial board were unknown to us. It appeared that this magazine could not be purchased or subscribed, which was printed on the last page. We started to make inquires and have learned that the magazine is published by the administration of the Ukrainian President and is distributed by closed express mail to ministries and agencies, to region, city and district state administrations throughout Ukraine. This issue got to us only because there was an article about the Kharkiv publishing house „Folio“ with which we closely collaborated. After the publication of this material the deputy head of Kharkiv administration phoned to „Folio“ and suggested help. Thus, this magazine plays the role of Moscow ’Pravda“ in the Communist times. From it the state officials learn the news of state politics and recommendations and commands what to do. We wrote a letter to the editorial board of „Polemika“ with the request to exchange this magazine for our publications, and never got any answer. There is no need of further comments.

Lower, at the local level, the matters are even worse. Local authorities treat the restrictions on the information access quite arbitrarily and, to be on the safe side, often refuse to answer. For example, in 1995 Donetsk and Lugansk region courts refused to give any information on the number of death verdicts referring to Clause 4.48 of the list of state secrets, though a specialist from the State Committee on state secrets confirmed that this restriction is not contained in the list.

The state of matters, at least in Donetsk region has not changed before 1997. So, when the editorial board of the newspaper „Tiurma i volia“ sent a request to the local Directorate of the Ministry of Internal Affairs about the number of agents killed in the course of duty, about the number of agents disemployed for violations of rights, about the data on criminality in the region, about the program of the fight with crime, the Directorate answered that it finds unreasonable to cooperate with the newspaper. Another Directorate on execution of punishments, having received a request on the number of the deceased and causes of their death in penitentiary establishments, about the number of TB and AIDS cases, etc., informed that all these data, according to Article 30 of the law „On information“ are defined as classified (’for service use only’) and must not be granted according to Article 37 of the same law. However, the information that is collected in state agencies as a result of their activity, i.e. for the money of tax payers, cannot be considered as classified, according to the same Article 30. As to the term „for service use only“, that is another bright example of a juridical term without definition with maltreatment of this in the interests of a state agency.

In general, one can get an impression that state agencies and bodies of all levels dodge giving out the information on their activities, carefully sift data on their own choice or just keep silence. It is strange that the Parliamentary Committees do not answer the requests of a human rights protecting group. That is why there is little hope that the Parliament will use its right, granted by Article 28 of the law „On information“, to control the execution of law on the access to information.

The low degree of mastering the information is, first of all, the result of the laxity and the absence of the wish to obtain information. Nonetheless, human rights protecting organizations and some journalists, who mastered the art of getting information, manage to obtain information about the activities of state organs.

 

5. WHAT IS „INFORMATIONALSECURITY“?

In Article 17, Section 1, of the Constitution of Ukraine treating the national security of information exchange, the security is declared to be „the duty of all Ukrainian people“. To comment this, in fact senseless, statement is rather difficult, since there the state affair of protecting information with the restricted access is regarded as the strategic task for the entire society. The very fact of including this statement to the Constitution deserves attention: someone spent a lot of efforts to push it into the text and was successful.

In January 1997 the Supreme Rada adopted „The Conception of the national security of Ukraine“. The Conception mentioned possible threats to the national security caused by insufficient control over information: „information expansion from other countries, leakage of information containing state secrets and other secrets mentioned by the corresponding law, as well as confidential information owned by the state“. Among the main remedies used for providing the natural security in the information sphere the Conception mentions complex measures aimed at protecting the Ukrainian information space, at entering the world information space and at removal of negative tendencies of violating the Ukrainian information space, as well as at the development of necessary facilities and modes of operation (retrieval, storage, distribution and use) with socially important information, and at the creation of a well-developed infrastructure in the information sphere.

Until now any parliamentary hearings about the freedom of speech (in 1997, 1999 and 2000) could not do without the appeals about the necessity to protect the national information space and information safety.

On February 4, 1998, the Supreme Rada adopted the Law „On the national program of informatization“. The Law has two main targets; one of them is to provide the national security. This function has to be fulfilled by a central state agency appointed by the Cabinet of Ministers. A day before the President issued the Decree on creating the Commission of information security – „deliberative body created for the development of propositions about the state policy in the sphere of information safety“.

What is information security? Acting legislation does not include of its definition. One should find at the draft of the Law „On Information Sovereignty and Security of Ukraine“. It could have been treated as a curiosity if it had not been approved in all instances and had to be presented at the plenary meeting of the Verkhovna Rada for the final approval. The draft is spanned with the idea of protecting the information security understood as „the ability to protect the most important interests of citizen and state, thus excluding the possibility of damage because of incomplete, untimely or uncertain information, because of negative consequences of the functioning of information technologies or as a consequence of distributing information, prohibited or limited to distribution by Ukrainian laws. (Article 3).“ One can see that the state dares to define which information is uncertain or distorted to be prohibited for distribution. The draft introduces the concept of „national information resources of exclusively state importance“ (Article 10), to which the draft relates the resources that „may essentially influence the state of the national security of Ukraine… and its information sovereignty“. The draft recommends the state to redeem such resources if they appeared in private property, and the owners of such resources that are not redeemed yet has the duty „to guard and preserve such resources and use them only with the account of the rulings of the Ukrainian laws“.

In my opinion, joining of the words „information“ and „sovereignty“ to one term is a great mistake of the authors of the draft. According to the draft, the provision of the information sovereignty demands „the legal definition and guarantees by the state of the strategic directions of development and protection of the national information space and integrated information politics“ (Article 2), though it seems obvious that the main task of the state is to encourage the diversity of information and political attitudes, since decisions should be taken on the base of a wide public discussion. It seems that the state must tend to weakening its control in the information sphere, but the draft affirms the opposite: „the state is the guarantor of the entirety of the national information space on the basis of the integrated state policy determined by the laws binding to all participants of the information activities, regardless of the form of property, with the state owning all leading objects of the national information space and affecting the regulative influence on the social relations in the information sphere by using its property and economic levers“ (Article 4). Probably, the authors of the draft had an noble intention and goals. But the main idea of the draft, whether the authors wanted it or not, is to implement the complete state monopoly for information.

 

6. WHICH INFORMATION DOESTHE STATE PROTECT AND WHY?

A certain answer to this question is given by the Conception of the technical protection of information (TIP) adopted by the Cabinet of Ministers in October 1997. According to the Conception, leakage of the information, which is state or other secret determined by laws, confidential information owned by the state is one of the main threats to the national security of Ukraine in the information sphere. The threat to the information in Ukraine is caused, as the Conception reads, by various reasons. The first place among these reasons is occupied by „white spots in the legislation about the information technologies, which may lead to the uncontrolled and illegal access to information and its further use“, as well as „activities of other states directed at gaining advantages in foreign policy, economic, military and other spheres.

The TIP is defined in the concept as an activity aimed at the provision, by technical means, of the priority of access, of the integrity and accessibility (i.e. impossibility to block) of the information which contains state secrets and other secrets determined by law, as well as confidential information: besides, it must ensure the integrity and the accessibility of the open information, important for individuals, the society and the state. This definition makes precise one of the principles of shaping and conducting the state policy in the TIP sphere: „it is necessary to protect by technical means the information which contains state secrets and other secrets determined by law, as well as the confidential information which is the property of the state, the open information which is important for the state, regardless of where this information circulates, and also the open information which is important for the society and the state, if this information circulates in the channels in the state power organs and the local self-administration, in the Academy of Sciences, in the armed forces or other paramilitary units, in the agencies of the Ministry of the Interior, in state enterprises, in state establishments and organizations“.

The law unambiguously mentions only the notion of a state secret out of all above-mentioned entities. No „other secrets determined by law“ are mentioned in any Ukrainian law. The concept of „the confidential information which is the property of the state“ is not clear. After Article 30 of the law „On information“ confidential information can be property of natural and juridical persons, but not of the state. The concept of „the open information which is important for the state, regardless of where this information circulates“ is hopelessly fuzzy. All these concepts are so poorly defined, that the decision what information should be protected will be taken by state officials according to their reasons, with no restriction on any arbitrary actions. The concept plans to install TIP units at any office where the information should be protected. We believe there are serious grounds to fear that the realization of this concept will substantially restrict public access to necessary information.

 

7. HOW THE ACCESS TO THE PROTECTED INFORMATION IS REGULATED, IF THE INFORMATION DOES NOT MAKE STATE SECRET?

It is difficult to answer this question since, as it was said before, the information protected by state is not determined by laws. The only exception is the conception of state secret. That is why the classifications, which are invented by state organs for various normative acts (Decrees and resolutions of the President, instructions, decisions and orders of the executive power organs, etc.): „not for publishing“, „for service use only“, „not for printing“, all of them are illegal. The legal classification envisages only: „top secret“, „quite secret“ and „secret“, which reflect the different degrees of secrecy stipulated by the Law „On state secrets“.

But in any case, for any degree of secrecy the procedure must be determined how to introduce and how to cancel such classifications. It is obviously necessary to have the regulations for the access to such documents. Yet, our search for such acts was unsuccessful. It appeared that the normative acts on the work with documents classified as „not for publishing“ and „not for printing“, officially registered by the Ministry of Justice, do not exist at all.

As to the work with the documents classified as „for service use only“, the regulations on it were approved by the Cabinet of Ministers of Ukraine in Resolution No. 1813 of 27 November 1998 „On the approval of the Instructions on the procedure of accounting, storage and use of documents, cases, publications and other material carriers, which contain confidential information owned by the state“. Ironically, this resolution was published in „Uriadovy kur’er“ („The governmental messenger“) on 10 December, on the 50th anniversary of the adoption of the Universal Declaration of human rights.

According to Section 2 of the Instruction, central and local power bodies must develop, within six months, and introduce into operation lists all the items of the confidential information owned by state. The documents including this information must be classified as „for service use only“ (SUO). The Instruction does not determine who and on the base of which criteria will decide which information is confidential. It is not clear from the Instruction whether the mentioned lists will be made public; the publication will be difficult since each organization can have its own list. Nonetheless, Section 3 of the Instruction prescribes that the demands of the Instruction must be fulfilled not only by power bodies, but also by enterprises, establishments and organizations, regardless of the forms of property. It should be expected that this Instruction will activate the work of notorious „first departments“, whose function is to supervise the regime of secrecy.

The lists may contain not only the information, which is created by the power body in question, but also the information which is used by the body (Section 1 of the Instruction). Thus, any information, which got to a state agency may be declared as confidential by the wish of the head of this agency, while the creator of this information will not be informed on the change.

According to Section 5 of the Instruction, documents of organs of the legislative, executive, and judicial power, which were issued since 1991, non-classified, but not published in the official press, may be regarded as SUO.

The conditions of storage, copying and distribution of documents classified as SUO are not less severe than those for documents classified as secret: they must be registered, all drafts and variants must be destroyed, names and even positions of the authors must not be indicated, and so forth (Sections 17-28 of the Instruction).

Representatives of mass media have access to the documents classifies as SUO only after they get a written permission of the head of the organization in each concrete case. The permission is given only by a resolution of the expert commission which must give a written permission on the expediency of the journalist’s access to the document. In fact, the chain of permissions is even longer, because on the output end the first department and similar departments have their piece of the pie. Thus, the probability of getting SUO-classified documents is negligible, taking into account that the responsibility for divulging confidential information lies on the head of the department and not on the journalist.

What is an expert commission and who comprises it, what is its order of activity – is not clear from the Instruction. The text of the Instruction contains some fuzzy indications that the commission contains „workers of chancellery, first department and other structural units“.

Section 32 of the Instruction prescribes to regard a package of non-secret documents as SUO-classified, if among these documents there is at least one classified as SUO. Thus, the access is severed to practically any information.

The fear of the authorities before free distribution of information is convincingly reflected by Sections 51 and 52 of the Instruction, which prescribe to destroy SUO-classified documents, if they have no scientific or historical-cultural value or lost their practical value; the destruction must be obligatorily done by grinding into tiny fragments.

 

 

8. HAS THE STATE POLICY ON STATE SECRETS CHANGED?

That is a great pity, but we have to state: it has, in the direction of making more secrets. It is convincingly confirmed by introducing essential changes into the Law „On state secrets“, which were approved by the Supreme Rada of Ukraine in September 1999.

First of all, the range of secret information became wider. The information in the sphere of defense, economy, foreign policy, state security and law enforcing was considered secret before. Now other information has been added in the spheres of science and technology, namely the information „on scientific, research, design works, which serve as a base for progressive technologies, new kinds of products and technological processes that have great military or economic importance or essentially effect the external economic activities and national security of Ukraine“ (Article 8). In my opinion, this is a principal mistake of the authors of the new version of the Law (we proved this thesis in the article „Informational security or threat of lagging behind?“ in the same issue of the bulletin). New positions have appeared in the sphere of state security and law-enforcing: the information may be classified as state secrets „on the personnel of the agencies realizing ODA“, „on implementing the secrecy regime in the organs of state power, local self-rule, at enterprises, establishments and organizations, on state programs, plans and other measures in the sphere of protecting state secrets“, „on organizing, contents, state and plans of the development of the technical protection of secret information“, „on the results of the inspections conducted according to laws by a prosecutor in the framework of surveillance over obeying laws and on the contents of the documents of inquiry, preliminary investigation and court procedures concerning the spheres mentioned in the article“.

The latter is completely incomprehensible. Making secret the prosecutor’s surveillance over obeying laws is, I believe, inadmissible, the more so that the information, which may be related to state secrets in the above-mentioned spheres, is very great.

New articles have appeared; they describe in details the procedure of conducting the activities connected with state secrets and the activities of the organs controlling these procedures (not their departments, but organs as such). These organs have a lot of rights and levers of influencing the work of enterprises, establishments and organizations, which deal with state secrets. If such controlling organ is envisaged by the staff composition, then the position of the deputy head in charge of regime is introduced, who has the rights and duties of the head of the controlling organ. The organs are staffed with the specialists, who have the permission to work with state secrets classified as „completely secret“ or, if needed, „top secret“. The organ has the right to participate in the attestation of the personnel, who fulfil works connected with state secrets, to check the work from the viewpoint of secret protection and even to conduct searches at workplaces. In my opinion, it is the meaning of the formula „to check the obedience of the secret regime at workplaces of the employees, who have the access to state secrets“.

It should be noted that the Committee was disbanded in the beginning of 1999, and its functions and rights were passed to the USS.

Changes in the Law „On state secrets“ did not concern the procedure of forming and making public the LIISS was not changed. Nevertheless, having worked with the well-known computer legislative system of the information and analytic center „Liga“, I unexpectedly learned that the LIISS is absent in the database, since it is classified as „secret“. It is hardly plausible that the four changes of September 1995 – February 1996 were the last. Now one has to guess what data were secret during five years after publication the LIISS.

After sending the informational request to the USS, vivid correspondence and phone calls, the USS declassified the LIISS, it again appeared on „Liga“ site and was published in „The official messenger of Ukraine“.

 

9. CONCLUSIONS

Let us sum up. The access to the information that is owned by the organs of state power and local self-rule is extremely unsatisfactory. Progressive laws regulating the access, which were adopted in the early 90s, were actually cancelled by sublegal acts and illegal practices that is characterized with the wide usage of the illegal classification restricting the access. In particular the classification is: „not for publishing“, „not for printing“, „for service use only“. These concepts are not defined by law, the procedure of working with the documents classified as „not for publishing“, „not for printing“ is not determined by any registered normative acts, the Instruction on the procedure of working with the documents classified as „for service use only“ is written in the spirit of the old good totalitarian times and practically blocks the access to such documents.

The state protects the information „that makes state or other secret stipulated by law, confidential information owned by the state, open information important for the state, regardless of where this information circulates, open information important for a person or society, if this information circulates in the organs of state power or local self-rule, National academy of sciences, Armed Forces, other military units, law-enforcing organs, at state enterprises, establishments and organizations“. Only the concept of the state secret is defined by law. The lists of information items protected by the state are compiled only for the information being state secret and confidential information owned by the state (classified as „for service use only“). Yet the lists of the information „for service use only“ are not published, and the LIISS was published immediately after its adoption in 1995, and later was made secret, as well as all further changes in it. Thus, the decision on restricting the access to information is taken not on the basis of an open normative act, as it must be in a country-member of the Council of Europe, but depending on the personal decision of a state official, who is responsible for protecting such information.

In order to correct this absurd situation it is necessary to distinctly define by laws the information, the access to which is restricted, and the aim of such restrictions. The list of the secret information items must be exhaustive and made public. In the given case two more principles must be obeyed. Firstly, the principle of maximum publishing: all information, which is owned by state organs, must be published with the exception of very few cases. The second principle characterizes the demands to the restrictions: a) the exceptions must be understandable; b) they must be described without unneeded broadening; c) they must be controlled for „harm to public interests“. So, a decision of a state organ to restrict the access to information is justified if, first, the information is related to legitimate aim defined by law; secondly, its publication may be of a real harm to the legitimate aim; thirdly, the harm must overweigh the public interest to this information.