Access to information and state secrets Oct.1998


During 1997-1998 the access to decisions of the central administration became much easier due to the wide distribution of the database „Pravo“ which is maintained by the information department of the Supreme Rada Secretariat. This database is cited also in the Internet (in the Ukrainian language). It contains the laws and decisions of the Supreme Rada, orders and other documents of the Cabinet of Ministers and all state committees, presidential edicts, resolutions of the Plenum of the Supreme and Constitutional courts. It should be noted that this base is available commercially, the first contribution equalling $ 300 for one copy.

However, for man in the street the objective information on administration activities became much less accessible, because, first, practically no independent mass media remained in the country, all of them, especially TV, are very rigidly controlled by various political forces, and, secondly, citizens are too poor to subscribe to newspapers and magazines. Thus, many have returned to the popular sources of information of the Soviet period, i.e. radio stations Liberty, BBS and the Voice of America.

Persecutions of and criminal attacks on journalists have become more frequent. Two newsmen were killed in the direct connection with their professional activities. This year during the first eight months 39 crimes against journalists were committed, and only 16 were disclosed. In September the law „On the state support of mass media and social protection of journalists“ was adopted. First of all the law puts the stress on the production of information in the state Ukrainian language. Besides the law grants some guarantees for the protection of journalists from the state interference into their professional activities, as well as a number of social privileges for them. Actually the law is not realized, but if it did, it would hinder the freedom of expression.

The law „On the procedure of making public the information on activities of state power bodies and local administration in Ukraine by mass media“ was adopted simultaneously with the law on the state support of mass media. This act may be interpreted as signing a contract between administration bodies and editorial boards. In particular, the law prohibits anyone, except officially sworn translators, to translate official documents from Ukrainian to any other language. It is noteworthy that the alleged contract keeps editors under pressure, and the prohibition to translate kills two birds with one stone: it supports the state language and hinders distribution of the official information.

The strong administrative pressure on the mass media oppositional to 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 stronger and stronger. The notorious „first departments“ at research and design institutes have galvanized to the long-forgotten activity. The Cabinet of Ministers adopted the conception of technical protection of information. Two more documents have been adopted: „A frame directive on a secret archive department in state agencies, enterprises, establishments and organizations“ and „Instruction on the selection and transfer of secret documents for archive storage“. A number of similar documents have been prepared, in particular, amendments and additions to the law „On state secrets“ and „Instruction on introducing the regime of secrecy in state and local administration bodies, in enterprises, establishments and organizations in Ukraine“. This instruction has been already classified since, according to its authors, „this instruction completely uncovers methods and forms of protecting secret information in our state“. This instruction closely follows the corresponding instruction that regulated questions of secrecy in the former USSR, many positions are borrowed verbatim. Now the draft is being approbated in ministries, agencies and organizations which deal in secrets. The draft has been already approved in the part dealing with state secrets. Nothing is known about the adoption of this draft by the Supreme Rada of Ukraine. The draft of another law is prepared where the administrative responsibility is stipulated for violating the law on state secrets. All this, as usual, is done without any public debate: the legislative activity in the country is closed from outsiders.

It is noteworthy that the Cabinet of Ministers of Ukraine has not worked out the „Instruction on the State Expert in questions of secrets“, as it was prescribed by the resolution of the Supreme Rada of Ukraine „On the order of introducing the law "On state secrets"“ as long ago as in the beginning of 1994. And according to Article 8 of this law „the State Expert in questions of secrets bears full responsibility for lawful and well-grounded decisions to relate some information to state secrets“ and that the above-indicated Instruction „must be approved by the President of Ukraine“. Our requests directed to the State Committee for protection of state secrets and technical protection of information (Comsecret in Officialese) about who personally is the State Expert in each ministry and agency were left unanswered (as, by the way, all other requests directed to this committee). The situation with the publication of changes and additions into the List of Information being State Secrets (LISS) is scandalous. According to Article 10 of the law on state secrets and the „Instruction on the procedure of forming and publishing the LISS“, these changes and additions shall be published not later than three months since the day of the reception by Comsecret of the corresponding decision of the State Expert: records to the LISS must not contain state secrets. Nonetheless, almost all the changes introduced to the LISS after the first publication of the latter on 18 August 1995 have not been published. In the above-mentioned database „Pravo“ they give numbers and dates of the orders in Comsecret on introducing changes to the LISS, but the very texts are omitted as being secret.

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 makes precise one of the principles of shaping and conducting the state policy in the TIP sphere: „it is necessary to protect by technical means the information which contains state secrets and other secrets determined by law, as well as the confidential information which is the property of the state, the open information which is important for the state, regardless of where this information circulates, and also the open information which is important for the society and the state, if this information circulates in the channels in the state power organs and the local self-administration, in the Academy of Sciences, in the armed forces or other paramilitary units, in the agencies of the Ministry of the Interior, in state enterprises, in state establishments and organizations“. The law unambiguously mentions only the notion of a state secret out of all above-mentioned entities. No „other secrets determined by law“ are mentioned in any Ukrainian law. The concept of „the confidential information which is the property of the state“ is an obvious nonsense: after Article 30 of the law „On information“ confidential information can be property of natural and juridical persons, but not of the state. The concept of „the open information which is important for the state, regardless of where this information circulates“ is hopelessly fuzzy, the more so that it is followed by a similar concept with a more precise list of the subjects of the information exchange. All these concepts are so poorly defined, that the decision what information should be protected will be taken by state officials according to their reasons, with no restriction on any arbitrary actions. The concept plans to install TIP units at any office where the information should be protected. We believe there are serious grounds to fear that the realization of this concept will substantially restrict access to official information.

In 1997-1998 the law regulating the protection of confidential information was somewhat modified. The Constitutional Court of Ukraine (CC) made more precise Article 23 of the law „On information“ concerning the protection of confidential data. In this article the information on a person is defined „as the set of documented or publicized data on the person“. The main personal data are: nationality, education, family status, religion, health, as well as address, date and place of birth. The sources of the documented information on a person can be documents given to the person and documents signed by this person, as well as the data collected by state and local administration bodies gathered within their rights. Article 23 prohibits collecting information about a person without the person’s consent, except in the cases stipulated by law. Each person has the right to study the information pertaining to him/herself. This information is protected by law.

On the 6 of November 1997 the CC gave an interpretation of Article 23, responding to the application of Konstantin Ustimenko, an inhabitant of Dnepropetrovsk (by the way, a reader of the weekly „Prava Ludyny“ — „Human Rights“- published by the Kharkiv human rights protection group).The claimant was put on the psychiatric cases list in 1988 — 1990, which fact restricted his rights in occupying some jobs. Several times he addressed court and prosecutor’s office, but they refused him to get full information on the reasons of putting him on the list and showing him his hospital card. According to the cited CC directive, „not only the collection, but the storage, usage and distribution of confidential information without his/her consent is prohibited, except in the cases stipulated by law, and only in the interests of the national security, economic prosperity, human rights and freedoms“, and „each person has the right to know which data and with what purpose are collected, how and with which purpose they are going to be used, ... as well as the right to get acquainted with the information collected about him by state and local administration, establishments and organizations, if these data do not make a state secret or another kind of secrets stipulated by law“ („Pravo Ukrainy“, No.12, 1997, pp.111-112). Thus, the CC spread the prohibition of Article 23 to all main forms of information processing.

This Directive of the CC was sharply criticized as aimed at the restriction 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 to step on the tail of newspeople... It is not impossible that the next step of state officers will be encrypting of their names, so everyone who will address them by name will be handcuffed and brought to the nearest precinct, for third-degreeing from them the source of the secret information“. („Zerkalo Nedeli“, 21 November, 1997). At the conference „Mass media and society: aspects of interaction“ a group of participants approved the appeal in which it was noted that the CC interpretation ; „not only completely devoids journalists of the right to inform the public on the activity of any politician, but finally destroys the freedom of speech in Ukraine“ (cited from „Legal Bulletin for mass media“, November-December, 1997, No.5, p.5). On 24 November at a press conference Ivan Timchenko, the Chairman of the CC, declared that the interpretation of several articles of the law is not aimed at restricting of journalist’s rights; the purpose of the interpretation was to concord the articles with the Constitution of Ukraine, which contains a wider treatment. Journalists have the right to check and verify information, for example, on candidates to the Parliament, since, having made public the information about themselves after entering the political struggle, a candidate „allegedly gives his consent for further disclosing this information“. The CC head confessed that „there is no hard and distinctive lines between confidential information, which a private person would be unwilling to disclose, and the information known publicly“ (Ibidem, p.5).

It is worth to mention the campaign held during 1997-1998 on the introduction of identifying numbers for all natural persons. residing in Ukraine. At first the numbers were introduced by the Tax Inspection of Ukraine for making the list of tax payers „with the purpose of the convenient control over the timely and complete payments of taxes“. These numbers were entered by the Tax Inspection as a personal code to all automated systems of processing information (The Tax Inspection’s letter of 21 January 1997, No.29-0105/10-459). Later these codes were introduced to all standard blanks of the primary account (The letter of the State Committee of statistics of 24 December 1997, No.2-2-5/96). During the first half of 1998 state bodies forced all people residing in the country and needing to get money from any source to get the identifying number. The procedure was a tormenting one, especially for pensioners who had at least twice stand in the frost in unbelievably lengthy queues for handing and getting back the account card and then receiving a certificate with the number. In the actual fact, this number is aimed for using as a single universal code of a person in the creation of the United Automated Passport System (UAPS), as it was stated by the „Concept of creating the UAPS“, adopted by the Cabinet of Ministers of Ukraine in the beginning of 1997 (Directive No.40 of 20 January 1997). In our opinion, the introduction of the unique state code will enable state agencies to retrieve personal data on a person without the latter’s consent, which abuses the constitutional right for privacy and contradicts the discussed Directive of the CC.

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