Access to information and state secrets Mar.1999


Access to the information on the activity of power bodies is substantially limited because of the severe control over mass media, especially those of the opposition. The main tool of the pressure are claims of libel with fantastical sums for recovering moral damage and criminal cases considering slander. According to the data, made public by the former Minister of Justice Sergey Golovaty, 123 persons were condemned on libel charges in 1998, and 7 of them were incarcerated. The number of claims to journalists about protection of honor and dignity is even greater. To our pity, courts very often satisfy the claims, thus making the newspaper and a journalist bankrupt. Vitaliy Boyko, the president of the Supreme Court of Ukraine, said that mass media should not be closed as a result of the lost cases. It is necessary to adopt a law which would regulate the reasonable limits of the recovery for the moral damage; he appealed to the Supreme Court to discuss the question at its plenum. It is noteworthy that Piotr Shevchuk, the chairman of the collegium of the Supreme Court in civil questions, protested against the court decision that forced the newspaper ‘Kievskiye vedomosti’ pay to Yuri Kravchenko, the Minister of Interior, an unreasonably large sum, equal to four million grivnas (about one million of USD).

On 27 November 1998 the Cabinet of Ministers of Ukraine issued document No.1893 ‘Instruction on the procedure of storage, protection and use of documents, files, publications and other hard copies containing confidential information which is owned by the state’. This instruction violates Article 34 of the Constitution which states that any restrictions of the freedom of information must be stated by law, not by mere instructions. The very concept of the confidential information owned by state is defined nowhere and in Article 30 of the law ‘On information’ the bodies of state power and local self-rule are not mentioned as owners, guardians or users of confidential information.

According to Section 2 of the Instruction, central and local power bodies must develop, within six months, and introduce into operation lists all the items of the confidential information owned by state. The documents including this information must be classified as ‘for service use only’ (SUO). The Instruction does not determine who and on the base of which criteria will decide which information is confidential. It is not clear from the Instruction whether the mentioned lists will be made public; the publication will be difficult since each organization can have its own list. Nonetheless, Section 3 of the Instruction prescribes that the demands of the Instruction must be fulfilled not only by power bodies, but also by enterprises, establishments and organizations, regardless of the forms of property. It should be expected that this Instruction will activate the work of notorious ‘first departments’, whose function is to supervise the regime of secrecy.

The lists may contain not only the information, which is created by the power body in question, but also the information which is used by the body (Section 1 of the Instruction). Thus, any information, which got to a state agency may be declared as confidential by the wish of the head of this agency, while the creator of this information will not be informed on the change.

According to Section 5 of the Instruction, documents of organs of the legislative, executive, and judicial power, which were issued since 1991, non-classified, but not published in the official press, may be regarded as SUO.

The conditions of storage, copying and distribution of documents classified as SUO are not less severe than those for documents classified as secret: they must be registered, all drafts and variants must be destroyed, names and even positions of the authors must not be indicated, and so forth (Sections 17-28 of the Instruction).

Representatives of mass media have access to the documents classifies as SUO only after they get a written permission of the head of the organization in each concrete case. The permission is given only by a resolution of the expert commission which must give a written permission on the expediency of the journalist’s access to the document. In fact, the chain of permissions is even longer, because on the output end the first department and similar departments have their piece of the pie. Thus, the probability of getting SUO-classified documents is negligible, taking into account that the responsibility for divulging confidential information lies on the head of the department and not on the journalist.

What is an expert commission and who comprises it, what is its order of activity — is not clear from the Instruction. The text of the Instruction contains some fuzzy indications that the commission contains ‘workers of chancellery, first department and other structural units’.

Section 32 of the Instruction prescribes to regard a package of non-secret documents as SUO-classified, if among these documents there is at least one classified as SUO. Thus, the access is severed to practically any information.

The fear of the authorities before free distribution of information is convincingly reflected by Sections 51 and 52 of the Instruction, which prescribe to destroy SUO-classified documents, if they have no scientific or historical-cultural value or lost their practical value; the destruction must be obligatorily done by grinding into tiny fragments.

To our pity, there were no criticisms or protests concerning this Instruction.

The information processed by the Supreme Court (SC) will be restricted. In the end of February the SC presidium adopted the Resolution on information activities of the SC. According to this Resolution, publication of decisions of the SC plenum, as well as any data analyzing the court statistics or generalizing the court practice is permitted for publication in independent mass media only after getting a written approval of the SC chairman or his deputies. This approval is given only under conditions defined in the agreement between the SC ant this mass medium. The SC head or his deputies consider questions concerning the access to official documents and requests for written or oral information in accordance with Articles 32-34 of the law ‘On information’. Bearers of the requests must reimburse expenditures connected with the fulfillment of these requests concerning the access to official documents and obtaining written information; the size of expenditures is set by the SC presidium.

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