Access to information and state secrets Mar.1998
22.05.2004
During 1997-1998 the access to decisions of the centraladministration became much easier due to the wide distribution ofthe database ’Pravo’ which is maintained by the informationdepartment of the Supreme Rada Secretariat. This database is sitedalso in InterNet (in the Ukrainian language). It contains the lawsand decisions of the Supreme Rada, orders and other documents ofthe Cabinet of Ministers and all state committees, presidentialedicts, resolutions of the Plenum of the Supreme andConstitutional courts. It should be noted that this base isavailable commercially, the first contribution equalling $ 300for one copy.
However, for man in the street the objective information onadministration activities became much less accessible, because,first, practically no independent mass media remained in thecountry, all of them, especially TV, are very rigidly controlled byvarious political forces, and, secondly, citizens are too poor tosubscribe to newspapers and magazines. Thus, many have returned tothe popular sources of information of the Soviet period, i.e. radiostations Liberty, BBS and the Voice of America.
Persecutions of and criminal attacks on journalists have becomemore frequent. Two newsmen were killed in the direct connectionwith their professional activities. This year during the firsteight months 39 crimes against journalists were committed, and only16 were disclosed. In September the law ’On the state support ofmass media and social protection of journalists’ was adopted. Firstof all the law puts the stress on the production of information inthe state Ukrainian language. Besides the law grants someguarantees for the protection of journalists from the stateinterference into their professional activities, as well as anumber of social privileges for them. Actually the law is notrealized, but if it did, it would hinder the freedom of expression.
The law ’On the procedure of making public the information onactivities of state power bodies and local administration inUkraine by mass media was adopted simultaneously with the law onthe state support of mass media. This act may be interpreted assigning a contract between administration bodies and editorialboards. In particular the law prohibits anyone, except officiallysworn translators, to translate official documents from Ukrainianto any other language. It is noteworthy that the alleged contractkeeps editors under pressure, and the prohibition to translatekills two birds with one stone: it supports the state language andhinders distribution of the official information.
The strong administrative pressure on the mass media oppositionalto the President and the government, mostly controlled by the party ’Gromada’, also restricts the access to information. One of the tools for this pressure became libel claims from government officials with unrealistically large fines. Regretfully, the courts usually satisfy the claims, thus making bankrupt both the newspaper and the newspaperman. Two of the newspapers controlled by the opposition were stopped at all : ’Pravda Ukrainy’ was banned by the administrative decision of the Ministry of Press and Information and ’Vseukrainskie Vedomosti’ due to financial difficulties after satisfying a nonsensical libel claim with a fantastical fine.
Generally speaking, restrictive tendencies are becoming strongerand stronger. The notorious ’first departments’ at research anddesign institutes have galvanized to the long-forgotten activity.The Cabinet of Ministers adopted the conception of technicalprotection of information. Two more documents have been adopted:’A frame directive on a secret archive department in stateagencies, enterprises, establishments and organizations’ and’Instruction on the selection and transfer of secret documents forarchive storage’. A number of similar documents have been prepared,in particular, amendments and additions to the law ’On statesecrets’ and ’Instruction mon introducing the regime of secrecy instate and local administration bodies, in enterprises,establishments and organizations in Ukraine’. This instruction hasbeen already classified since, according to its authors, ’thisinstruction completely uncovers methods and forms of protectingsecret information in our state’. This instruction closely followsthe corresponding instruction that regulated questions of secrecyin the former USSR, many positions are borrowed verbatim. Now thedraft is being approbated in ministries, agencies and organizationswhich deal in secrets. The draft has been already approved in thepart dealing with state secrets. Nothing is known about theadoption of this draft by the Supreme Rada of Ukraine. Thedraft of another draft law is prepared where the administrativeresponsibility is stipulated for violating the law on statesecrets. All this, as usual, is done without any publicdiscussion: the legislative activity in the country is closed fromoutsiders.
In 1997-1998 the law regulating the protection of confidentialinformation was somewhat modified. The Constitutional Court ofUkraine (CC) made more precise Article 23 of the law ’Oninformation’ concerning the protection of confidential data. Inthis article the information on a person is defined ’as the set ofdocumented or publicized data on the person’. The main personaldata are: nationality, education, family status, religion, health,as well as address, date and place of birth. The sources of thedocumented information on a person can be documents given to theperson and documents signed by this person, as well as the datacollected by state and local administration bodies gathered withintheir rights. Article 23 prohibits collecting information about aperson without the person’s consent, except in the cases stipulatedby law. Each person has the right to study the informationpertaining to him/herself. This information is protected by law.®
On the 6 of November 1997 the CC gave an interpretation of Article23, responding to the application of Konstantin Ustimenko, aninhabitant of Dnepropetrovsk (by the way, a reader of the weekly’Prava Ludyny’ - ’Human Rights’- published by the Kharkiv humanrights protection group).The claimant was put on the psychiatriccases list in 1988 - 1990, which fact restricted his rights inoccupying some jobs. Several times he addressed court andprosecutor’s office, but they refused him to get full informationon the reasons of putting him on the list and showing him hishospital card. According to the cited CC directive, ’not onlythe collection, but the storage, usage and distribution ofconfidential information without his/her consent is prohibited,except in the cases stipulated by law, and only in the interests ofthe national security, economic prosperity, human rights andfreedoms’, and ’each person has the right to know which data andwith what purpose are collected, how and with which purpose theyare going to be used, ... as well as the right to get acquaintedwith the information collected about him by state and localadministration, establishments and organizations, if these data donot make a state secret or another kind of secrets stipulated bylaw’ (’Pravo Ukrainy’, No.12, 1997, pp.111-112). Thus, the CCspread the prohibition of Article 23 to all main forms ofinformation processing.
This Directive of the CC was sharply criticized as aimed at therestriction of rights of journalists. The known analytical weekly’Zerkalo nedeli’ printed the following comment to the Directive:’Now the people in power got still another convenient opportunity tostep on the tail of newspeople... It is not impossible that thenext step of state officers will be encrypting of their names, soeveryone who will address to them by name will be handcuffed andbrought to the nearest precinct, for third-degreeing from them thesource of the secret information’. (Zerkalo Nedeli’, 21 November,1997). At the conference ;’Mass media and society: aspects ofinteraction’ a group of participants approved the appeal inwhich it was noted that the CC interpretation ;’not onlycompletely devoids journalists of the right to inform thepublic on the activity of any politician, but finally destroys thefreedom of speech in Ukraine’ (cited from ’Legal Bulletin for massmedia’, November-December, 1997, No.5, p.5). On 24 November at apress conference Ivan Timchenko, the Chairman of the CC declaredthat the interpretation of several articles of the law is not aimedat restricting of journalist’s rights; the purpose of theinterpretation was to concord the articles with the Constitution ofUkraine, which contains a wider treatment. Journalists have theright to check and verify information, for example, on candidatesto the Parliament, since, having made public the information aboutthemselves after entering the political struggle, a candidate’allegedly gives his consent for further disclosing thisinformation’. The CC head confessed that there is no hard anddistinctive lines between confidential information, which a privateperson would be unwilling to disclose, and the information knownpublicly’ (Ibidem, p.5).
The concept of the Technical Information Protection (TIP) deserves a special consideration. 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 makesprecise one of the principles of shaping and conducting the statepolicy in the TIP sphere: ’it is necessary to protect by technicalmeans the information which contains state secrets and othersecrets determined by law, as well as the confidential informationwhich is the property of the state, the open information which isimportant for the state, regardless of where this informationcirculates, and also the open information which is important forthe society and the state, if this information circulates in thechannels in the state power organs and the localself-administration, in the Academy of Sciences, in the armedforces or other paramilitary units, in the agencies of the Ministryof Interior, in state enterprises, in state establishments andorganizations’. The law unambiguously mentions only the notion of astate secret out of all above-mentioned entities. No ’other secretsdetermined by law’ are mentioned in any Ukrainian law. The conceptof ’the confidential information which is the property of thestate’is an obvious nonsense: after Article 30 of the law ’Oninformation’ confidential information can be property of naturaland juridical persons, but not of the state. The concept of ’theopen information which is important for the state, regardlessof where this information circulates’ is hopelessly fuzzy, the moreso that it is followed by a similar concept with a more preciselist of the subjects of the information exchange. All theseconcepts are so poorly defined, that the decision what informationshould be protected will be taken by state officials according totheir reasons, with no restriction on any arbitrary actions. Theconcept plans to install TIP units at any office where theinformation should be protected. We believe there are seriousgrounds to fear that the realization of this concept willsubstantially restrict access to official information.
It is worth to mention the campaign held during 1997-1998 onthe introduction of identifying numbers for all natural persons.residing in Ukraine. At first the numbers were introduced by theTax Inspection of Ukraine for making the list of tax payers ’withthe purpose of the convenient control over the timely and completepayments of taxes’. These numbers were entered by the TaxInspection as a personal code to all automated systems ofprocessing information (The Tax Inspection’s letter of 21 January1997, No.29-0105/10-459). Later these codes were introduced to allstandard blanks of the primary account (The letter of the StateCommittee of statistics of 24 December 1997, No.2-2-5/96). Duringthe first half of 1998 state bodies forced all people residing inthe country and needing to get money from any source to get theidentifying number. The procedure was a tormenting one, especiallyfor pensioners who had at least twice stand in the frostunbelievably lengthy queues for handing and getting back theaccount card and then receiving a certificate with the number. Inthe actual fact, this number is aimed for using as a singleuniversal code of a person in the creation® of the United AutomatedPassport System (UAPS), as it was stated by the ’Concept ofcreating the UAPS’, adopted by the Cabinet of Ministers of Ukrainein the beginning of 1997 (Directive No.40 of 20 January 1997). Inour opinion, the introduction of the unique state code will enablestate agencies to retrieve personal data on a person without thelatter’s consent, which abuses the constitutional right on privacyand contradict the discussed Directive of the CC.
However, for man in the street the objective information onadministration activities became much less accessible, because,first, practically no independent mass media remained in thecountry, all of them, especially TV, are very rigidly controlled byvarious political forces, and, secondly, citizens are too poor tosubscribe to newspapers and magazines. Thus, many have returned tothe popular sources of information of the Soviet period, i.e. radiostations Liberty, BBS and the Voice of America.
Persecutions of and criminal attacks on journalists have becomemore frequent. Two newsmen were killed in the direct connectionwith their professional activities. This year during the firsteight months 39 crimes against journalists were committed, and only16 were disclosed. In September the law ’On the state support ofmass media and social protection of journalists’ was adopted. Firstof all the law puts the stress on the production of information inthe state Ukrainian language. Besides the law grants someguarantees for the protection of journalists from the stateinterference into their professional activities, as well as anumber of social privileges for them. Actually the law is notrealized, but if it did, it would hinder the freedom of expression.
The law ’On the procedure of making public the information onactivities of state power bodies and local administration inUkraine by mass media was adopted simultaneously with the law onthe state support of mass media. This act may be interpreted assigning a contract between administration bodies and editorialboards. In particular the law prohibits anyone, except officiallysworn translators, to translate official documents from Ukrainianto any other language. It is noteworthy that the alleged contractkeeps editors under pressure, and the prohibition to translatekills two birds with one stone: it supports the state language andhinders distribution of the official information.
The strong administrative pressure on the mass media oppositionalto the President and the government, mostly controlled by the party ’Gromada’, also restricts the access to information. One of the tools for this pressure became libel claims from government officials with unrealistically large fines. Regretfully, the courts usually satisfy the claims, thus making bankrupt both the newspaper and the newspaperman. Two of the newspapers controlled by the opposition were stopped at all : ’Pravda Ukrainy’ was banned by the administrative decision of the Ministry of Press and Information and ’Vseukrainskie Vedomosti’ due to financial difficulties after satisfying a nonsensical libel claim with a fantastical fine.
Generally speaking, restrictive tendencies are becoming strongerand stronger. The notorious ’first departments’ at research anddesign institutes have galvanized to the long-forgotten activity.The Cabinet of Ministers adopted the conception of technicalprotection of information. Two more documents have been adopted:’A frame directive on a secret archive department in stateagencies, enterprises, establishments and organizations’ and’Instruction on the selection and transfer of secret documents forarchive storage’. A number of similar documents have been prepared,in particular, amendments and additions to the law ’On statesecrets’ and ’Instruction mon introducing the regime of secrecy instate and local administration bodies, in enterprises,establishments and organizations in Ukraine’. This instruction hasbeen already classified since, according to its authors, ’thisinstruction completely uncovers methods and forms of protectingsecret information in our state’. This instruction closely followsthe corresponding instruction that regulated questions of secrecyin the former USSR, many positions are borrowed verbatim. Now thedraft is being approbated in ministries, agencies and organizationswhich deal in secrets. The draft has been already approved in thepart dealing with state secrets. Nothing is known about theadoption of this draft by the Supreme Rada of Ukraine. Thedraft of another draft law is prepared where the administrativeresponsibility is stipulated for violating the law on statesecrets. All this, as usual, is done without any publicdiscussion: the legislative activity in the country is closed fromoutsiders.
In 1997-1998 the law regulating the protection of confidentialinformation was somewhat modified. The Constitutional Court ofUkraine (CC) made more precise Article 23 of the law ’Oninformation’ concerning the protection of confidential data. Inthis article the information on a person is defined ’as the set ofdocumented or publicized data on the person’. The main personaldata are: nationality, education, family status, religion, health,as well as address, date and place of birth. The sources of thedocumented information on a person can be documents given to theperson and documents signed by this person, as well as the datacollected by state and local administration bodies gathered withintheir rights. Article 23 prohibits collecting information about aperson without the person’s consent, except in the cases stipulatedby law. Each person has the right to study the informationpertaining to him/herself. This information is protected by law.®
On the 6 of November 1997 the CC gave an interpretation of Article23, responding to the application of Konstantin Ustimenko, aninhabitant of Dnepropetrovsk (by the way, a reader of the weekly’Prava Ludyny’ - ’Human Rights’- published by the Kharkiv humanrights protection group).The claimant was put on the psychiatriccases list in 1988 - 1990, which fact restricted his rights inoccupying some jobs. Several times he addressed court andprosecutor’s office, but they refused him to get full informationon the reasons of putting him on the list and showing him hishospital card. According to the cited CC directive, ’not onlythe collection, but the storage, usage and distribution ofconfidential information without his/her consent is prohibited,except in the cases stipulated by law, and only in the interests ofthe national security, economic prosperity, human rights andfreedoms’, and ’each person has the right to know which data andwith what purpose are collected, how and with which purpose theyare going to be used, ... as well as the right to get acquaintedwith the information collected about him by state and localadministration, establishments and organizations, if these data donot make a state secret or another kind of secrets stipulated bylaw’ (’Pravo Ukrainy’, No.12, 1997, pp.111-112). Thus, the CCspread the prohibition of Article 23 to all main forms ofinformation processing.
This Directive of the CC was sharply criticized as aimed at therestriction of rights of journalists. The known analytical weekly’Zerkalo nedeli’ printed the following comment to the Directive:’Now the people in power got still another convenient opportunity tostep on the tail of newspeople... It is not impossible that thenext step of state officers will be encrypting of their names, soeveryone who will address to them by name will be handcuffed andbrought to the nearest precinct, for third-degreeing from them thesource of the secret information’. (Zerkalo Nedeli’, 21 November,1997). At the conference ;’Mass media and society: aspects ofinteraction’ a group of participants approved the appeal inwhich it was noted that the CC interpretation ;’not onlycompletely devoids journalists of the right to inform thepublic on the activity of any politician, but finally destroys thefreedom of speech in Ukraine’ (cited from ’Legal Bulletin for massmedia’, November-December, 1997, No.5, p.5). On 24 November at apress conference Ivan Timchenko, the Chairman of the CC declaredthat the interpretation of several articles of the law is not aimedat restricting of journalist’s rights; the purpose of theinterpretation was to concord the articles with the Constitution ofUkraine, which contains a wider treatment. Journalists have theright to check and verify information, for example, on candidatesto the Parliament, since, having made public the information aboutthemselves after entering the political struggle, a candidate’allegedly gives his consent for further disclosing thisinformation’. The CC head confessed that there is no hard anddistinctive lines between confidential information, which a privateperson would be unwilling to disclose, and the information knownpublicly’ (Ibidem, p.5).
The concept of the Technical Information Protection (TIP) deserves a special consideration. 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 makesprecise one of the principles of shaping and conducting the statepolicy in the TIP sphere: ’it is necessary to protect by technicalmeans the information which contains state secrets and othersecrets determined by law, as well as the confidential informationwhich is the property of the state, the open information which isimportant for the state, regardless of where this informationcirculates, and also the open information which is important forthe society and the state, if this information circulates in thechannels in the state power organs and the localself-administration, in the Academy of Sciences, in the armedforces or other paramilitary units, in the agencies of the Ministryof Interior, in state enterprises, in state establishments andorganizations’. The law unambiguously mentions only the notion of astate secret out of all above-mentioned entities. No ’other secretsdetermined by law’ are mentioned in any Ukrainian law. The conceptof ’the confidential information which is the property of thestate’is an obvious nonsense: after Article 30 of the law ’Oninformation’ confidential information can be property of naturaland juridical persons, but not of the state. The concept of ’theopen information which is important for the state, regardlessof where this information circulates’ is hopelessly fuzzy, the moreso that it is followed by a similar concept with a more preciselist of the subjects of the information exchange. All theseconcepts are so poorly defined, that the decision what informationshould be protected will be taken by state officials according totheir reasons, with no restriction on any arbitrary actions. Theconcept plans to install TIP units at any office where theinformation should be protected. We believe there are seriousgrounds to fear that the realization of this concept willsubstantially restrict access to official information.
It is worth to mention the campaign held during 1997-1998 onthe introduction of identifying numbers for all natural persons.residing in Ukraine. At first the numbers were introduced by theTax Inspection of Ukraine for making the list of tax payers ’withthe purpose of the convenient control over the timely and completepayments of taxes’. These numbers were entered by the TaxInspection as a personal code to all automated systems ofprocessing information (The Tax Inspection’s letter of 21 January1997, No.29-0105/10-459). Later these codes were introduced to allstandard blanks of the primary account (The letter of the StateCommittee of statistics of 24 December 1997, No.2-2-5/96). Duringthe first half of 1998 state bodies forced all people residing inthe country and needing to get money from any source to get theidentifying number. The procedure was a tormenting one, especiallyfor pensioners who had at least twice stand in the frostunbelievably lengthy queues for handing and getting back theaccount card and then receiving a certificate with the number. Inthe actual fact, this number is aimed for using as a singleuniversal code of a person in the creation® of the United AutomatedPassport System (UAPS), as it was stated by the ’Concept ofcreating the UAPS’, adopted by the Cabinet of Ministers of Ukrainein the beginning of 1997 (Directive No.40 of 20 January 1997). Inour opinion, the introduction of the unique state code will enablestate agencies to retrieve personal data on a person without thelatter’s consent, which abuses the constitutional right on privacyand contradict the discussed Directive of the CC.