What do our authorities conceal?
12.12.2001
Information is the breathing air of democracy. Only a well-informed society can control the authorities in order to make them serve public interests. On the contrary, bad power needs secrecy in order to bury their incompetence and corruption. That is why the transparency of the power, making public the information what and how the power makes secret is always an actual political question, litmus paper that shows the power’s intentions and plans.
Ukraine inherited a heavy load of the totalitarian past, when practically all the state activities were kept secret for decades, whereas any attempts to procure and distribute the information about the state activities was interpreted as anti-state crimes. In such a manner the Soviet power hid its crimes, the collapse of economics, as well it own incomes and privileges. It is rather difficult to forget this sad inheritance. Recurrences of the past, alas, have recently become too frequent. In this article we shall tell about one part of the totalitarian inheritance – the impossibility to learn, what concrete pieces of information are related to state secrets.
But first we shall discuss some general principles. The international right has developed a number of standards that enable one to determine whether the internal laws provide the access to information. We shall need two principles. The first – the principle of maximum publicity: all the information stored by state organs must be made public, the exceptions are made for a few kinds of information. Another principle characterizes the restrictions on making public the information: a) the exceptions must be determined unambiguously; b) they must be determined precisely and concisely; c) they must be sternly controlled concerning the ‘damage’ and influence on the ‘public interests’. This means that a refusal of a state organ to make an item of information public is justifiable only when, first, the information belongs to some legitimate goal, secondly, its making public must be clearly dangerous for the legitimate goal and, thirdly, the damage caused by making public the information must overweigh the damage to the public interest of obtaining the information. These principles unambiguously imply that that the list of information items, whose publication must be constrained, has to be exhaustedly determined and accessible. The access to information in our country is governed by the Law ‘On information’ that was adopted in October 1992 and the Law ‘On state secrets’ that is operable since January 1994. The adoption of these laws was certainly a success of the young state. Before the adoption of the Constitution these laws determined such a system of relations and duties in this sphere that is commonly typical for democratic countries.
Article 1 of the Law ‘On state secrets’ the latter were defined as a sort of secret information in the sphere of defense, economic, foreign relations, state security and defense of the public order, whose divulging can cause essential damage to interests of Ukraine and so must be guarded by the state. A special organ – the State Committee in charge of keeping secrets (the Committee, in what follows) – had to determine the level of secrecy depending on the possible damage the divulging could bring about. The Committee had to introduce various constraints depending on the level of secrecy and to provide the protection of state secrets. Article 6 of the Law lists the topics, which may be defined as state secrets, Articles 7, 8, 9 described the procedure of relating information to secret by special state experts in charge of secrets. Article 10 formulated that the procedure if forming and publishing the Collection of information items, which are state secrets (CIISS) 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.
We do not mean to analyze the CIISS here, but it is difficult to refrain from some questions. Why is the quantity of the customs personnel secret (item 4.18)? Which vital interests of Ukraine would suffer if these data were divulged? The same question concerns the size of the personnel of the USS (4.14). Why to conceal from the public the information about the state, results and prospects of the cooperation of the USS with security services of other countries (4.17)? One may put many similar questions.
Yet, the very fact of making the CIISS public is very significant, since the free access to it is important. One should mention that the CIISS was reprinted many times: in issue 41 of ‘Zakon i biznes’ (‘Law and business’), in the book ‘Ukraina: svoboda slova i informatsii’ (‘Ukraine: the freedom of speech and information’), in collections of legal acts ‘Zasoby massovoi informatsii’ (‘Mass media’) published by Information press center IREX I?iIaa?a and other editions.
Unfortunately, the attempts at openness ended. The first amendments to the CIISS 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 my opinion, this is a brutal violation of operating laws and norms.
In the beginning of 1999 the Committee was disbanded, and its functions were passed to the USS. In September 1999 the Supreme Rada adopted substantial changes of the Law ‘n state secrets’. One principal change, in my opinion, was made: other spheres – science and technology -- were introduced, the information about which may be related to state secrets. Yet, the procedure of forming and making public the CIISS was not changed.
In December 2000, having worked with the newly created database of normative acts of the Ukrainian legislative information center, I unexpectedly learned that the CIISS is absent in the database, since it is classified as ’secret’. This database also did not contain the above-mentioned four orders of the Committee. I sent an inquiry to the well-known computer legislative system of the information and analytic center ‘Liga’ and obtained the same answer: the CIISS is classified as ‘secret’ and is inaccessible. Moreover the original text of the CIISS published in Nos. 123-124 of the newspaper ‘Uriadovy kuryer’ for 1995 disappeared from the database. Now one has to guess what data are secret now. It is hardly plausible that the four changes of September 1995 – February 1996 were the last. I think that the CIISS had to be changed to the great extent, as in the version of 21 September 1999 the Law the circle of secret information much expanded. The information about science and technology, as well as about some aspects of state security and protection of state order were added to the initial part of the list: defense, economic, foreign relations, etc. (Article 8). But the ‘Liga’ database does not contain any more mentions of changes.
In my opinion, such brutal violations of national and international information laws are inadmissible in a country that is a member of the Council of Europe and pretends to be European. It is interesting that the perpetrator was the USS, the very organ of the state power, which is always very touchy about any mentions of its illegal actions. The bosses of the Service always pointed out that their organization always acts within its legal bounds. Yet, we got no answer to our request of 18 January of the current year to L. Derkach, the head of the USS. When Mr. Derkach was dismissed and V. Radchenko became the USS head, I sent (on 9 March) the letter about the absence of any answer to my previous request. This time I received the answer very soon, though it must be noted that the answer was signed on 9 February by the previous chief, but was posted from Kyiv on 16 March and reached Kharkov on 20 March. Here is this letter verbatim.
‘The Ukrainian security service considered your letter concerning classifying the Collection of information items, which are state secrets (CIISS, in what follows) as ‘secret’.
We inform you that the CIISS was approved by the order No. 47 of 31 July 1995 by the State committee in charge of state secrets, registered in the Ministry of Justice of Ukraine on 3 August 1995, No. 278/814 and published in Nos. 123-124 of the newspaper ‘Uriadovy kuryer’ for 1995.
The CIISS for service use of agencies containing the information on the levels of secrecy of secret documents was classified as ‘secret’ by the State committee in charge of state secrets’.
Thus, there are two CIISSs -- opened, published and closed, for service use of agencies. But the Law mentions only one CIISS – ‘act, which the list of information items from the spheres determined by Law related to secret by special state experts in charge of secrets’ (Article 1). This document may not be closed according to any law! Nonetheless, it is this text, which is omitted in the legislative databases of normative acts of Ukraine. Pay attention that the USS answer does not mention the number and the date of state registration in the Ministry of Justice for the order of the Committee in charge of state secrets about making secret ‘The CIISS for service use of agencies’.
I believe that the USS, which, according to Article 12 of the Law’ On state secrets’, forms and publishes the CIISS, must stop the violation of the law. Namely they must remove from the document secret data, revoke the classification ‘secret’ and make it public with all changes made during five years.
P. S. When this issue was already prepared for printing, we learned that the USS took off the secrecy of the CIISS. According to order No. 52 issued by the USS head on 1 March 2001 the CIISS published in August 1995 was considered null and void, and a new CIISS was approved. The order was registered in the Ministry of Justice of Ukraine on 22 March 2001 with No. 254/5455.
The order and the new CIISS appeared in the computer legislative system of the information and analytic center ‘Liga’, and now it is time to expect the appearance of this document in official mass media. I should be mentioned that, unlike the version of 1995, the new document contains, beside the headings of information items related to state secrets, the secrecy level, the term of secrecy, the registration number and the date of state expert’s decision. This is certainly a positive step made by the USS.
Ukraine inherited a heavy load of the totalitarian past, when practically all the state activities were kept secret for decades, whereas any attempts to procure and distribute the information about the state activities was interpreted as anti-state crimes. In such a manner the Soviet power hid its crimes, the collapse of economics, as well it own incomes and privileges. It is rather difficult to forget this sad inheritance. Recurrences of the past, alas, have recently become too frequent. In this article we shall tell about one part of the totalitarian inheritance – the impossibility to learn, what concrete pieces of information are related to state secrets.
But first we shall discuss some general principles. The international right has developed a number of standards that enable one to determine whether the internal laws provide the access to information. We shall need two principles. The first – the principle of maximum publicity: all the information stored by state organs must be made public, the exceptions are made for a few kinds of information. Another principle characterizes the restrictions on making public the information: a) the exceptions must be determined unambiguously; b) they must be determined precisely and concisely; c) they must be sternly controlled concerning the ‘damage’ and influence on the ‘public interests’. This means that a refusal of a state organ to make an item of information public is justifiable only when, first, the information belongs to some legitimate goal, secondly, its making public must be clearly dangerous for the legitimate goal and, thirdly, the damage caused by making public the information must overweigh the damage to the public interest of obtaining the information. These principles unambiguously imply that that the list of information items, whose publication must be constrained, has to be exhaustedly determined and accessible. The access to information in our country is governed by the Law ‘On information’ that was adopted in October 1992 and the Law ‘On state secrets’ that is operable since January 1994. The adoption of these laws was certainly a success of the young state. Before the adoption of the Constitution these laws determined such a system of relations and duties in this sphere that is commonly typical for democratic countries.
Article 1 of the Law ‘On state secrets’ the latter were defined as a sort of secret information in the sphere of defense, economic, foreign relations, state security and defense of the public order, whose divulging can cause essential damage to interests of Ukraine and so must be guarded by the state. A special organ – the State Committee in charge of keeping secrets (the Committee, in what follows) – had to determine the level of secrecy depending on the possible damage the divulging could bring about. The Committee had to introduce various constraints depending on the level of secrecy and to provide the protection of state secrets. Article 6 of the Law lists the topics, which may be defined as state secrets, Articles 7, 8, 9 described the procedure of relating information to secret by special state experts in charge of secrets. Article 10 formulated that the procedure if forming and publishing the Collection of information items, which are state secrets (CIISS) 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.
We do not mean to analyze the CIISS here, but it is difficult to refrain from some questions. Why is the quantity of the customs personnel secret (item 4.18)? Which vital interests of Ukraine would suffer if these data were divulged? The same question concerns the size of the personnel of the USS (4.14). Why to conceal from the public the information about the state, results and prospects of the cooperation of the USS with security services of other countries (4.17)? One may put many similar questions.
Yet, the very fact of making the CIISS public is very significant, since the free access to it is important. One should mention that the CIISS was reprinted many times: in issue 41 of ‘Zakon i biznes’ (‘Law and business’), in the book ‘Ukraina: svoboda slova i informatsii’ (‘Ukraine: the freedom of speech and information’), in collections of legal acts ‘Zasoby massovoi informatsii’ (‘Mass media’) published by Information press center IREX I?iIaa?a and other editions.
Unfortunately, the attempts at openness ended. The first amendments to the CIISS 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 my opinion, this is a brutal violation of operating laws and norms.
In the beginning of 1999 the Committee was disbanded, and its functions were passed to the USS. In September 1999 the Supreme Rada adopted substantial changes of the Law ‘n state secrets’. One principal change, in my opinion, was made: other spheres – science and technology -- were introduced, the information about which may be related to state secrets. Yet, the procedure of forming and making public the CIISS was not changed.
In December 2000, having worked with the newly created database of normative acts of the Ukrainian legislative information center, I unexpectedly learned that the CIISS is absent in the database, since it is classified as ’secret’. This database also did not contain the above-mentioned four orders of the Committee. I sent an inquiry to the well-known computer legislative system of the information and analytic center ‘Liga’ and obtained the same answer: the CIISS is classified as ‘secret’ and is inaccessible. Moreover the original text of the CIISS published in Nos. 123-124 of the newspaper ‘Uriadovy kuryer’ for 1995 disappeared from the database. Now one has to guess what data are secret now. It is hardly plausible that the four changes of September 1995 – February 1996 were the last. I think that the CIISS had to be changed to the great extent, as in the version of 21 September 1999 the Law the circle of secret information much expanded. The information about science and technology, as well as about some aspects of state security and protection of state order were added to the initial part of the list: defense, economic, foreign relations, etc. (Article 8). But the ‘Liga’ database does not contain any more mentions of changes.
In my opinion, such brutal violations of national and international information laws are inadmissible in a country that is a member of the Council of Europe and pretends to be European. It is interesting that the perpetrator was the USS, the very organ of the state power, which is always very touchy about any mentions of its illegal actions. The bosses of the Service always pointed out that their organization always acts within its legal bounds. Yet, we got no answer to our request of 18 January of the current year to L. Derkach, the head of the USS. When Mr. Derkach was dismissed and V. Radchenko became the USS head, I sent (on 9 March) the letter about the absence of any answer to my previous request. This time I received the answer very soon, though it must be noted that the answer was signed on 9 February by the previous chief, but was posted from Kyiv on 16 March and reached Kharkov on 20 March. Here is this letter verbatim.
‘The Ukrainian security service considered your letter concerning classifying the Collection of information items, which are state secrets (CIISS, in what follows) as ‘secret’.
We inform you that the CIISS was approved by the order No. 47 of 31 July 1995 by the State committee in charge of state secrets, registered in the Ministry of Justice of Ukraine on 3 August 1995, No. 278/814 and published in Nos. 123-124 of the newspaper ‘Uriadovy kuryer’ for 1995.
The CIISS for service use of agencies containing the information on the levels of secrecy of secret documents was classified as ‘secret’ by the State committee in charge of state secrets’.
Thus, there are two CIISSs -- opened, published and closed, for service use of agencies. But the Law mentions only one CIISS – ‘act, which the list of information items from the spheres determined by Law related to secret by special state experts in charge of secrets’ (Article 1). This document may not be closed according to any law! Nonetheless, it is this text, which is omitted in the legislative databases of normative acts of Ukraine. Pay attention that the USS answer does not mention the number and the date of state registration in the Ministry of Justice for the order of the Committee in charge of state secrets about making secret ‘The CIISS for service use of agencies’.
I believe that the USS, which, according to Article 12 of the Law’ On state secrets’, forms and publishes the CIISS, must stop the violation of the law. Namely they must remove from the document secret data, revoke the classification ‘secret’ and make it public with all changes made during five years.
P. S. When this issue was already prepared for printing, we learned that the USS took off the secrecy of the CIISS. According to order No. 52 issued by the USS head on 1 March 2001 the CIISS published in August 1995 was considered null and void, and a new CIISS was approved. The order was registered in the Ministry of Justice of Ukraine on 22 March 2001 with No. 254/5455.
The order and the new CIISS appeared in the computer legislative system of the information and analytic center ‘Liga’, and now it is time to expect the appearance of this document in official mass media. I should be mentioned that, unlike the version of 1995, the new document contains, beside the headings of information items related to state secrets, the secrecy level, the term of secrecy, the registration number and the date of state expert’s decision. This is certainly a positive step made by the USS.