Public hearings “Access to information. Use of the classifications restricting the access»
Today, on 2 June, the public hearings “Access to information. Use of the classifications restricting the access» are conducted in Kyiv. The hearings were organized jointly by the Supreme Rada Committee in charge of the freedom of speech and information, the Public Council in charge of the freedom of speech and information and the Kharkov group for human rights protection. MPs, representatives of the Cabinet of Ministers, Supreme Court, Constitutional Court, General Prosecutors office, USS, Presidents Administration and other organs of state power, a representative of the secretariat of the ombudsperson, representatives of public organizations, experts and others were invited for the participation in the hearings.
According to the monitoring conducted by the Kharkov group for human rights protection (KhG), 100 out of 2672 resolutions and decrees issued by the Cabinet of Ministers in 2002 were classified as “not for publishing”. The President of Ukraine issued 1479 edicts and decrees during 2002, 74 out of them also were classified as “not for publishing”. Among other agencies the traditional leader in secrecy is the USS (6 out of 14 orders were “for service use only”). The similarly classified orders were also issued in 2002 by the Ministry of Justice (2 out of 410), State penitentiary department (2 out of 13), Ministry of Interior (1 out of 30), State directorate of frontiers (1 out of 16) and State custom service (1 out of 1003).
According to the statistics, in 2003 the Cabinet of Ministers issued 14 documents “not for printing” and 5 “for service use only”. The President of Ukraine signed 23 edicts classified as “not for publishing”.
The experts of the KhG turned to the organs of state power with the demand to give them the right for the access to some documents connected with the problems of personal identification in Ukraine, but the access was denied. This, in particular, concerned Presidents Edict No. 709/94 “On the information and analytic provision of the President of Ukraine” (the last version of 27 January 1999). The appeal was handed to the Presidents administration and the Cabinet of Ministers with the request to explain the grounds of using the classifications “not for publishing” and “not for printing”.
According to the answer of the juridical department of the Secretariat of the Cabinet of Ministers, the access to the documents issued by the power organs is denied on the basis of Resolution of the Cabinet of Ministers No. 1893 of 27 November 1998 “On the approval of the instruction on the procedure of the registration, storage and use of the documents, files, editions and other material carriers containing confidential information owned by the state”.
Item 1 of this Instruction reads: “The lists of the information, which is owned by the state and is classified as the information with the restricted access “for service use only”, are compiled and brought into effect by ministries, other central organs of the executive power, the Council of Ministers of the Crimea, oblast state administrations, Kyiv and Sevastopol city administrations, which compile, own, use or handle these pieces of information”.
The KhG also got the refusal to their request to publish the secret Presidents acts. The refusal was based on the argument that these acts with the restricted access, not always concerned the rights and freedoms of citizens (Article 57 of the Constitution stipulates the obligatory publication of such documents), but “contain the information directly connected with the question of guaranteeing the state security, defense of Ukraine and other similar information, which, according to the law, is owned by state”.
E. Gerasimenko, the head of the state-legal directorate of the Presidents Administration, affirms that all information defined as state property is brought to notice of the interested persons, organs of state power and local self-rule in the accordance with Article 7 of Presidents Decree No. 503 “On the procedure of the official publication of normative legal acts and bringing them into effect”. Coming into effect of such documents, in the interpretation of Presidents administration, begins from the moment of familiarization with them. Yet, the question appears: how to determine this moment, if several persons are familiarized with the documents in different time? Is this moment individual for different persons or groups?
Considering the existing procedure of classifying the official documents, human rights protecting organizations want to attract the attention to the fact that more often the practical application of this procedure is illegal. The use of the classification “not for printing” is not envisaged by any normative acts, so it is applied by Presidents administration and the Cabinet of Ministers on their own initiative, the procedures of the recall of such documents and the access to them are also not stipulated by legal acts. The Constitution contains the exhaustive list of the reasons for restricting the access to information: in the interests of national security, territorial integrity and public order, for preventing the disturbances or crimes, for preventing the divulgence of confidential information or for the support of the authority and impartiality of justice.
According to Article 34 of the Constitution, any restrictions of the access to information must be determined by laws. But now the legally stipulated restrictions concern only state secrets and nothing more.
The KhG reckons that the organs of state power have no right to restrict the access to information only on the basis of their property rights, on the conditions that this information does not inflict damage to the interests mentioned in Article 34 of the Ukrainian Constitution.
The law “On information” (Article 21) relates the sublegal acts to the information on the activities of the organs of state power and local self-rule and establishes the procedure of passing this information to the interested persons (orally, in writing or in other ways), but the state has no right to determine the circle of persons, who are considered as interested. Moreover, it is known from the experience that the organs of state power apply the secret classifications on their own initiative, and frequently to the information having the social importance.
So, last year Presidents Edict No. 1180/2002 of 17 December 2002 classified as “not for publishing”, which approved the new version of “The resolution on the state administration”, was published, as well as the Decree “On the additional measures for the material provision of the officers of the Supreme Council of Justice”, which concerned not the national security, but the material welfare of the authorities.
“The national program of the development of power engineering until 2010” still has the classification “for service use only”, the same classification of the plan of the joint Ukraine-NATO work was cancelled only in last October. The agreement between “Naftogaz-Ukraina” (the oil and gas state company of Ukraine) and “Gazprom” (the similar Russian company) on the creation of the gas consortium still has this classification. The agreement is also closed for the members of the surveillance council of “Naftogaz-Ukraina”. So, in the opinion of the KhG experts, the illegal application of the classifications by the state organs must attract the attention of public.
The participants of the public hearings believe that, in the context of the realization of the measures envisaged by Presidents Edict No. 683 of 1 August 2002 “On the additional measures for guaranteeing the transparency of the activities of the organs of state power”, the changes must be introduced to the law-applying practices. The state must not be the primary recipient of information, pointed out Vsevolod Rechitskiy, the KhG expert.
Mykola Tomenko, the head of the Supreme Rada Committee in charge of the freedom of speech and information, said that the Committee was ready to render the legal aid for the disclosure and termination of the illegal practices of the denial of the access to information and for the development of the corresponding legislative changes.
“Telekritika”, 02 June 2003, http://www.telekritika.kiev.ua/comments/?id=8985