Retreat from Access?
Ukraine’s leaders call the opening up of access to public information the most important achievement in the area of freedom of speech both in dealings at international level, and during discussions at home with opponents asking questions about a worsening in the situation.
This, admittedly, is for the moment only at the level of adoption of a law which has not begun actually functioning. It is truly one of the very few successful precedents where the actions of the present regime in the information sphere have proven swift and effective compared with those of their predecessors and where they have heard and supported the initiatives of journalists, civic society and shown efficient cooperation.
The Law comes into force on 10 May. During the three months from when the document was passed, the authorities were supposed to have worked through all technical aspects linked with its implementation. During the same period members of civic organizations have prepared method guides explaining how certain norms should work.
Yet although the law has not begun working, it is already annoying a lot of people. And some have even set to correcting it.
According to information received, the Speaker of the Verkhovna Rada, Volodymyr Lytvyn has initiated work on amendments to the Law on Access to Public Information. The heads of the secretariats of parliamentary committees have worked on comments and suggestions. With the exception of the profile committee which has not been included in this work.
As a result Volodymyr Lytvy has signed and sent to the Head of the Committee on Freedom of Speech, Andriy Shevchenko all these changes asking him to read them and prepare the relevant amendments to the laws. The secretariat of one of the committees has even prepared “correct” amendments in a comparative table of “necessary amendments to the Law on Access to Public Information.
Lytyvn has not yet risked registering these amendments in his name and has suggested that the author of the law do this.
The scale of the proposed changes is staggering.
Whereas in the new Law there is a norm about a 5-day timeframe for responding to an information request, the suggestion is that the old timeframe – 30 days is retained. How adequate this is in a digital age does not need to be asked.
It is proposed that the restricted access category “Official information” encompass all information received “from others in authority, legal entities, associations of citizens”, with their list being determined by the body of power itself.
Moreover the explanation states that “it is physically, technically and legally impossible to provide the requested copy of a land plan on establishing borders which comes to 100 or more pages, around 10 cartographic materials which have been put in the brochure …” The example on how they plan not to provide information is thus provided from specifically that area where there are a fair number of corrupt schemes involving allocation of land by bodies of local self-government.
Virtually all progressive and new norms should, it is proposed, be simply excluded.
For example they would exclude the norm stating that “access to information about the use of public funding, the ownership, use or disposal of State-owned or municipal property, including to copies of documents separating parts off, the conditions for receiving funds or property, the first and last names of individuals or legal entities that received these funds or property may not be restricted”
This is explained as being that “this would paralyze the work at local level of departments of the Pension Fund, Social Protection, Justice, Land Resources, financial bodies, etc”. This is despite the fact that the law clearly envisages that specified individuals in each body are to responsible for providing information and any inundation of information requests would only affect them.
It is also proposed to remove the progressive innovation taken from European legislation of the three-tier test without which information cannot be classified, this being to compare the potential damage from the information being made public with the public interest in its circulation.
The bureaucrats are frightened that the concept of public interest is subjective and call it non-law-based. In fact the concept of safe distance between cars according to the Road Code is no less subjective, yet each day hundreds of thousands of lives depend on these legal concepts, yet the given legal concept works fine in practice.
They propose discarding the main mechanism for practical implementation of the law – the item regarding the creation of a special structural division which will organize access to public information. This means that the management mechanism will not work without specifying those who are responsible for this sector of work.
Besides exclusions, there are some curious and highly equivocal additions. For example: “decisions and actions of those seeking information aimed at complicating or discrediting the activities of those in possession of the information, the honour, dignity and business reputation of their officials and staff may be appealed against by those in possession of the information in court”.
Obviously everybody has the right to approach the court if they consider their rights to have been violated, yet what is the point of writing that into the law? In order to deflect the asker’s wish to criticize the management of the authority if the answer to the information request suddenly proves too open?
The law directly proposes referring to “preventing abuse of the right to receive and circulate public information, including with the aim of complicating or discrediting the activities of those in authority, their officials and staff”. As noted above, it is impossible to complicate the work of an institution through information requests since there is a separate section responsible for dealing with them.
The supplements also concern how the question must be put in the information request. It is proposed that information requests should indicate “the motives prompting the submission of the information request”. The lack of such an explanation can be grounds for turning down the request.
It is also proposed to defer the entry of the law until 1 January 2012.
All of the above have already been worked out and presented in a table of amendments to the Law on Access to Public Information. It cannot be excluded that some deputy or other will take it on themselves to register it and we will have a situation similar to that seen with the urgent cancellation of the anti-corruption package of laws from 2009.
Clearly the adoption of such amendments to the Law on Access to Public Information would negate any positive innovations in the document. The amendments would turn the law into an empty shell.
They could totally destroy all the positive elements which emerged in legislation thanks to a synergic fusion of journalists, civic organizations, representatives of the government and the opposition. This could destroy the trust and faith in the possibility of joint positive actions which emerged after the adoption of the Law.
These suggestions clearly demonstrate how much bureaucrats and some representatives of the regime fail to understand the principles of interaction between the government and the public in democratic countries. There is no basic understanding of how such a system can work and why the public have a full right to receive all information from the government which they elected and maintain.
Besides misunderstanding, there is also a lot of entirely clear desire to continue concealing those schemes which lie at the foundation of corruption among officials and those in power and which can be dragged out through open access to information.
If the declaration about fighting corruption from Viktor Yanukovych was not just hot air, these amendments can have no chance of finding support in the largest of the factions in power. Otherwise the level of trust in the regime will not simply fall, but could disappear altogether.