Human rights in Ukraine – 2007. 7. The Right of access to information

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Long-overdue amendments to legislation to improve access to information did not materialize in 2007. One of the reasons was the political crisis which impeded parliament’s normal legislative work. At the same time, all the problems with access to information discussed in previous year’s reports emerged in full measure in 2007. As in previous years, human rights organizations systematically requested necessary information and very often received refusals, fob-offs, or quite simply heard nothing at all.

Responses were sometimes not provided because the information requested was classified as on restricted access on the basis of subordinate normative legal acts with reference to Articles 30 and 37 of the Law “On information”.

With regard to secret information, the type of information should be included in the List of Items of Information constituting State Secrets. However there is no such list for information in the possession of the State which is stamped “For official use only” [DSK].  If there are lists of such information, they are not always made public. One thus has the paradoxical situation where we do not have access to official documents providing a list of items of information which are confidential, in other words, we can’t know what it is that we are not supposed to know.

For this reason in 2007 the civic organization “Maidan” Alliance decided to look into which central authorities have lists of information stamped “For official use only”. For example, at the end of 2007 and beginning of 2008 they sent information requests to the authorities as given on the official website of the Cabinet of Ministers[2] (he Verkhovna Rada, the President’s Secretariat, as well as the Kyiv City State Administration. The respondents were asked: “Is there a list of items of confidential information in the possession of the State which is stamped “For official use only”, or is there any other list of items of information (documents, etc) which are not to be provided or made public in response to information requests from individuals (including from journalists)?”  In the event that such a list existed, the respondents were asked to provide a copy of the relevant act, or a written list of such items of information,

The information requests were drawn up in accordance with the Law “On information” and sent recorded delivery with notification to the sender. .Of the 79 respondents, 34 provided the lists requested or clearly stated that there no such lists (thus answering the question asked); The Ministry of Education and Science provided a partial response (as regards supplements to the relevant list which, unlike that, do not have the stamp “For official use only”.  General answers were given by the Ministry of Defence, the State Security Service and the Department of State Protection which could, in our view, be justified by the specific nature of their work. The following 7 of those sent the information request simply ignored it:

The Ministry of Culture and Tourism;

The Ministry of Health (considering the established tradition of this Ministry to not comply with information legislation, in May 2008  a suit was filed with the District Administrative Court in Kyiv seeking to have its inaction declared unlawful);

The State Department on Issues of Citizenship;

The Ministry of Foreign Affairs;

The Ministry for the Coal Industry;

The State Committee for Veterans’ Matters;

The State Food Department.

  Written refusals giving various arguments were provided by 34 respondents.

It is typical that none of the respondents observed Article 33 of the Law “On information” which makes it obligatory to send the person requesting the information written notification within 10 days of whether the information request will be met. It is worth noting that over the three years that the “Maidan” Alliance has been conducting this monitoring of access to information in only one case out of the hundreds of requests sent has the law been observed in this respect, that being by the High Council of Justice.

The responses established that 44 central authorities have such instructions:

The State Television and Radio Broadcasting Committee – Order No. 10 from 4 April 2006;

The Ministry of Education and Science – Ministry Order No. 5dsk from 14 February 2002 “On the organization of work with documents stamped “For official use only” approved a branch list of confidential information in the State’s possession”;

The Ministry of Internal Affairs – Order No. 207 from 6 March 2003;

The Prosecutor General’s Office – Order of the Prosecutor General No. 18 from 18 March 2005, approved “List of documents created through the work of prosecutor’s offices which contain confidential information”’

The Ministry of Justice – Order of the Ministry of Justice from 21 Marc 2008, No. 515;

The Ministry for Youth and Sport – Order No. 3374 from 6 October 2007;

The Ministry of Defence – “List of confidential information of the Armed Forces of Ukraine”;

The State Department on Nationality and Religion – “The relevant list has been drawn up”;

The Ministry for Emergences – Order No. 369 from 16 June 2006 approved a List of confidential information of the Ministry for Emergences;

The State Department for the Execution of Sentences – Order No. 248 from 19 December 2006 “On approving instructions for procedure regarding the register, storage and use of documents which contain confidential information”;

The State Committee on Issues of Regulatory Policy and Enterprise – List of items of information in the possession of the State which contain confidential information and are stamped “For official use only” by the State Committee (Order No. 98);

The State Security Service [SBU] – Order of the Head of the SBU from 5 November 1998, No.245/DSK;

The Ministry of Employment and Social Policy – Order No. 268 from 19 July 2006;

The Administration of the State Border Guard Service – Order from 23 April 2006;

The Ministry of the Economy – Order No. 185 from 31 May 2006;

The State Treasury – Order from 15 May 2007;

The State Committee on Land Resources – Order from 15 May 2006 No. 166;

The Ministry for Housing and Communal Services - Order from 3 August 2006 No. 273;

The State Committee on the State Material Reserve – Order No. 55 from 13 February 2007;

The Ministry of Transport and Communications – the Ministry has drawn up a List of Items of Information containing confidential information in the possession of the State and stamped “For official use only”. This is annually reviewed and approved by the Minister;

The State Property Fund - List of Items of Information containing confidential information in the possession of the State and stamped “For official use only” (approved by the Head of the Fund V. Semenyuk on 14 November 2005);

The Central Control and Audit Department – Order of the Head of the Department No. 405 from 1 December 2005;

The State Committee for Financial Monitoring – Order from 17 December 2007 No. 227;

The Ministry of Fuel and Energy - Order from 15 August 2006 No. 288;

The Ministry for Industrial Policy - Order from 21 August 2007 No. 492;

The Ministry of Regional Development and Construction - Order from 3 August 2006  №273

The Pension Fund – Order from5 December 2007 №223;

The Antimonopoly Committee of Ukraine – Order of the Head of the Committee from 4 May 2006 №55;

The State Duty Service of Ukraine - Order from.30 January 2004 №60;

The State Commission on Regulation of the Market of Financial Services - Order of the Head of the Commission from 10 August 2004 № 141.

The State Service for Export Control – Protocol No. 10 of a meeting of the Export Committee of the State Service from 23 March 2006;

The National Commission for Regulation of the Electricity Industry – Order No. 24 from 5 April 2006;

The Department for State Protection – Order of the Head of the Department from 22 December 2005 No. 444;

The State Aviation Administration – Order from 24 May 2007 No. 275;

The Ukrainian State Centre for Radio Frequencies - Order from 25 September 2007 No. 325;

The State Committee for the Forestry Industry - Order from 25 May 2006 No. 119;

The High Council of Justice – Instruction approved by the Head of the Council on 30 December 2005 №86/0/1-05.

The State Department for Maritime and River Transport - Order from 31 July 2006 № 132.

The State Department for Roads – Protocol of the Expert Commission No. 1 from 27 March 2007;

The State Archive Committee – Order No. 105 “On approving a List of documents and files with the stamp “For official use only” of State archival institutions” from 10 August 2006.

We would note that some of the central authorities still do not have a List of confidential information and replied that lists were in process of being drawn up. This was, for example, the response of the Ministry of Finance and the State Department on Communications and Informatatization.

It is impossible not to be disturbed by the refusal to provide lists from 12 out of the 44 State bodies, namely: the  Prosecutor General’s Office; the Ministry for Emergences; Ministry of Finance; Ministry of Fuel and Energy; the Central Department of the Civil Service; the National Space Agency; the State Protection Service; the State Department on Intellectual Property; the State Service for Special Communications and Protection of Information; the State Aviation Administration; the Ukrainian State Centre for Radio Frequencies and the State Committee for the Forestry Industry. They gave the following reasons:

1)  the documents have the stamp “For official use only”;

2) the issue needs to be agreed with the SBU (State Aviation Administration);

3) the person seeking the information does not have sufficient legal grounds to receive these lists;

4) the person asking has not explained why s/he needs the information State Department for Maritime and River Transport).

Thus, as pointed out earlier, we cannot find out what we do not have the right to know. This is in direct contravention not only of Article 34 of the Constitution (since all restrictions on the right of access to information must be established only by law), and of Article 57 which states that laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force, and the instructions in question here directly concern the right of access to information. Furthermore, as has been stressed many times, the failure to provide information on the basis of Article 37 of the Law “On information” is in breach of the Constitution. According to Article 8 § 2 and 3, the Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it. The norms of the Constitution of Ukraine are norms of direct effect. The Transitional Provisions of the Constitution state that laws and other normative acts, adopted prior to this Constitution entering into force, are in force in the part that does not contradict the Constitution of Ukraine. Thus Article 37 § 8 of the Law “On information” does not comply with the Ukrainian Constitution, and it is the constitutional precepts which should apply. The phrases “do not have legitimate grounds” or “explain what you need this information for” are entirely incomprehensible since if this information is on open access, then it should be provided to the person seeking it without any additional conditions. It should be noted that the Prosecutor General’s Office did provide a list of documents stamped “For official use only” in response to a request from another organization – the Kharkiv Human Rights Protection Group[3]  This Order replace Order №89 from 28.12.2002 “On organization of work with documents in the possession of the State stamped “For official use only”. However neither the old, nor the new, orders have been made public, they have not been printed and are not on the website of the Prosecutor General’s Office. They were not in any computer legal systems (Order No. 18 was input into the system of League – Law at the request of KHPG which provided the text of the Order). This is no wonder, since according to Presidential Decree No. 493 from 21 May 1998 the Prosecutor General’s Office, as before, does not register its normative acts in the Ministry of Justice which means that many of its normative legal acts are simply not known. This is in spite of the fact that those normative acts of the prosecutor’s office which it has been possible to receive and make public clearly have a direct relation to human rights and fundamental freedoms.  At the same time, it should be noted that after criticism from human rights organizations the website now contains considerably more normative legal acts of the prosecutor’s office.

Our analysis of the lists of information stamped “For official use only” provided in response to information requests, and deemed by central authorities to be confidential suggests that some of the information which these bodies are placing on restricted access if of public importance which should not under any circumstances be subject to such restrictions.  For example, the State Department on Nationality and Religion designates the following information as being for official use only:

1) information regarding ethnic and political problems caused by separatist, xenophobic, chauvinist and other destabilizing factors; 2) material concerning conflict over language and measures to regulate it; 3) information about measures to support the Ukrainian Diaspora in neighbouring countries where there are historically territorial claims and possible conflict on those grounds.

The Ministry of the Economy stamps the following information as “for official use only”:

1. on the results of checks of the State Committee on the State Material Reserve by controlling bodies;
2. on the results of tenders to sell material assets of the State reserve;
3. on particular issues regarding cooperation between Ukraine and the European Union (directives for negotiations, other documents on position);
4. on the economic situation in CIS countries and the possible development and consequences for Ukraine (information with elements of analysis);
5. on negotiations regarding access to the commodities and services market within the framework of Ukraine’s joining of the World Trade Organization;
6.  on consideration of Ukraine’s application to join the WTO (reports of working groups on the results of meetings);
7. on problematical issues regarding the negotiation process on Ukraine’s joining the WTO’
8. on access to the commodities and services market (bilateral protocols).

The State Committee on Land Resources classifies the following information as for official use only:

1. material from inter-State negotiations on issues regarding the State border; technical documentation on delimitation and demarcation of the State border; plans for moving the line of the State border;
2. books recording the number of lands (text and graphic parts);
3. books recording the quality of lands (text and graphic parts).

The State Property Fund considers the following to be confidential information: problem issues related to the presence of the Black Sea Fleet of the Russian Federation on Ukrainian territory., find the Pension Fund lists information about the financial condition and financial and economic activities of the Pension Fund and its offices; information about the material, technical and information provisions.

The High Council of Justice classified as for official use only information about disciplinary offences by judges and about specific infringements of legislation by judges this having been received and collected by the Council during checks.

Such an analysis of the information which central authorities classified as information for official use only shows that the criteria for limiting access are incomprehensible.

In 2007 environmental groups learned of the existence of several normative acts from the Ministry for Environmental Protection[4] , according to which large sections of environmental information can be designated as confidential, namely:

information on dealing with environmental issues with trans-border rivers;

regulation of environmental issues concerning biologically active (poisonous, infectious) substances, genetically modified organisms which can be used as biological weapons;

separate conclusions from State environmental impact assessments;

information about the technical characteristics of hydro-technical structures;

information concerning the functioning of the Russian Federation Black Sea Fleet on Ukrainian territory.

In our view, the content of these Orders from the Ministry for Environmental Protection runs counter to the Constitution, the Aarhus Convention, the Laws “On the protection of the natural environment” and “On information” which guarantee each person the right to free access to environmental information. It is typical that these Orders from the Ministry also carry the stamp “For official use only” and are not even registered with the Ministry of Justice. They should be revoked as unlawful.

Some responses require separate commentary. For example, analysing the answers from the Anti-Monopoly Committee and the Department of the Traffic Police of the MIA, we came to the conclusion that some officials do not always understand the difference between information which constitutes a State secret and information which they classify as confidential on the basis of internal instructions. In response to an information request, the Department of the Traffic Police stated that the classification of documents and information as confidential is carried out in accordance with the Law “On State secrets”.

If one adds to this process of collecting data the nomination “most appalling response”, then the laureate in our view would be the State Tax Administration [STA]. There are several reasons. Firstly, the STA did not provide a response claiming that the response had been given in a letter dated 20 November 2007 which in fact contained no answer. Secondly, the STA in this response gave information regarding which normative legal acts are subject to State registration although this information was not that sought. Thirdly and most interesting is the fact that Item 4.b of the Cabinet of Ministers Resolution No. 731 from 28 December 1992 which is cited in the response is not in fact in the said Resolution.  The text of this part of Item 4 according to the STA states that “… have an inter-departmental nature, that is, they are mandatory for other ministries, executive bodies, bodies of government and are connected with drawing up the direction of activities of institutions, the process of taking decisions and precede their passing, do not have to be provided in response to information requests.

However in fact this sub-item of Item 4 of the Resolution is as follows: “have an inter-departmental nature, that is, they are mandatory for other ministries, executive bodies, bodies of government and are connected with drawing up the direction of activities of institutions and organizations which do not fall within the sphere of management of the body which issued the normative legal act.”

We can see that employees of the STA in this case have not only failed to provide a response, but are also, to put it mildly, making arbitrary interpretations of a Cabinet of Ministers resolution.  Or to be entirely honest, are engaged in falsifying normative legal acts.

It should also be noted that in the above-mentioned resolution the issue of classifying information as on limited access is not resolved at all. Furthermore, during other monitoring, the STA refused to provide information citing Regulations on tax information in the State Tax Service, approved by STA Order No. 175 from 2 April 1999 “On approving the Provisions on tax information in the State Tax Service”.

Even such a superficial analysis of the situation regarding access to information stamped “For official use only” shows that no state bodies are guided in issues of restriction of access to information by the well-know principle of freedom of information “The information is classified as secret, not the document”. They all use the stamp “For official use only” for the document as a whole when even a small part of it needs restricted access. This unacceptable situation needs to be rectified and access to the open part of any document containing information on restricted access needs to be ensured. Those open parts of normative legal acts must be made public and input into computer legal systems, just like totally open normative legal acts.

In summing up, we should note that the campaign for receiving the relevant lists from all central authorities must be continued by sending repeat information requests depending on the grounds and content of the first refusal, letters to the Cabinet of Ministers, as well, where necessary, applications to the court. The end result of the project should be the creation of a “List of Items of Information in the possession of the State classified as confidential. Other information on the activities of these bodies which does not go into the List and which is not by law a State secret will de facto be recognized by the State as open and on free public access.

We are convinced that a necessary condition for changes for the better to the situation with access to information is the adoption of a Law “On freedom of information” in the form of an updated version of the Law “On information”. It would be possible to mark out the procedural part in a separate law. In general all recommendations for improving access to information made in the previous human rights organizations’ reports for 2004-2006, remain in force now.

Recommendations

1. To declassify all normative legal acts classified with the stamps «Not to be published», and to scrutinize documents classified as «for official use only» in order to establish whether their classified status is well-founded.

2. To adopt a new law on information which would guarantee the access to information in state bodies and bodies of local self-government on the basis of the Recommendations of the Committee of Ministers of the Council of Europe № R 19 (1981), REC 2 (2002), 13 (2000) of the UN/ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention); as well as other international standards on freedom of information.

3. To review the norms of Article 15 of the Law of Ukraine «On state secrets» so as to allow for only a specific text containing a state secret to be classified, and not the document as a whole.

4. To analyze «The List of items of information that constitute State secrets» in order to decide whether the classification is warranted, applying the three-component test of the European Court of Human Rights for determining whether there is «damage» and «impact on public interests», as well as Article 47-1 of the Law «On information»;

5. To revoke the Decree of the President of Ukraine №493 from 21.05.1998. «On introducing amendments to some Decrees of the President of Ukraine on the state registration of normative legal acts».

6. To register all normative legal acts issued by the Prosecutor’s office with the Ministry of Justice of Ukraine.

7. To create an open register of all normative acts of the prosecutor’s office and an open database of normative acts which concern citizens’ rights and duties..

8. To create the conditions enabling members of territorial communities to see all decisions passed by bodies of local self-government (depending on the conditions, in the most efficient manner). Thus, for example, where possible, to create websites of bodies of local self-government with mandatory placing there of a full register as well as the actual texts of all decisions passed.

9. To ensure the publication and access under an open regime to all decisions passed by local administrations (at the level of regions, as well as the cities of Kyiv and Sevastopol).

10. Taking into consideration the case law of the European Court of Human Rights and principles of legislation on the freedom of information, to develop an educational course on international standards of access to information and practice of their application in Ukraine, and to carry out training for judges of local and appeal courts of all 27 regions of Ukraine and for state officials who work in public relations departments of state bodies and bodies of local self-government;

11. To run training courses for state officials on the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters

12 For representatives of the mass media, human rights and other civic organizations to monitor the efficiency of active and passive access to information at central and local levels, to use the courts more actively against the inaction of state officials with regard to the providing of information and refusals to provide information.

[1] Підготовлено Співголовою ХПГ Євгеном Захаровим, експертом ХПГ з питань інформаційного права, викладачем кафедри конституційного права Національною юридичної академії імені Ярослава Мудрого Оксаною Нестеренко та правовим радником сайту «Майдан» Олександром Северином.

[2] Урядовий портал www.kmu.gov.ua.

[3] Текст наказу №18 від 18 березня 2005 року доступний на порталі  ХПГ «Права людини в Україні» за адресою: http://khpg.org/1214326358

[4] Зокрема, наказ Міністра ОНПС №470 від 25 листопада 2004 р. та його оновлена версія, видана в 2006 році.