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21.01.2008 | Oleksandr Stepanenko

It’s our environment: on asserting the right to know

   

A nationwide monitoring project “Right of access to environmental information” has found little to say that’s possible about the situation in Ukraine.  The information is still being processed, however the general assessment reached by the environmental groups involved is that violations of the right to environmental information in Ukraine are of a systemic nature with causes which go deep.

Just ask … and nothing

The key activity of the project involved sending formal information requests.  These are based on the Law on Information, the provisions of which require public officials to provide information or explain why the information may not be made public, as well as stipulating the timescale for issuing responses.

It is important to stress that the information sought was hardly of an esoteric or seditious nature. 

The information requests concerned the following:

  • the environmental impact of those enterprises deemed the worst polluters of the environment;
  • the use of environmental protection funds;
  • the impact of environmental accidents and problems of public health.

There were of course varied ways of not quite complying with the law. There were all too often unwarranted attempts by officials to refuse to provide the information.  Often they simply tried to avoid giving it, without a clear refusal, or gave incomplete information.  As always, a popular way out was to not answer the substance of the question.

Ask the Prosecutor?

The results showed that the prosecutor’s office remained probably the least forthcoming with information it held regarding observance of environmental legislation, crimes against the environment and about cases where the Prosecutor had appeared in court on the side of members of the public whose environmental rights had been infringed.

Why do you want it?

An activist from the human rights organization M’ART Serhiy Tanchuk sent an information request to the Zhytomyr Regional Prosecutor, wanting to know the number of::

  • applications made by members of the public for help in defending their right to a safe environmental;
  • occasions when the prosecutor’s office had responded to such applications and appeared in their defence in court;
  • complaints brought by members of the public regarding violation of environmental legislation;
  • criminal investigations instituted under Articles 236, 237, 238, 244, 253 of the Criminal Code (the section “Crimes against the environment”);

The Prosecutor refused to provide the information on the following grounds:

“According to Article 9 of the Law on Information, “Every citizen shall be ensured free access to information relating to that citizen, except in cases envisaged by the laws of Ukraine”.  In your letter you have not indicated which specific information concerns you personally, and we can therefore not provide the information.  Furthermore, pursuant to Article 24 of the Law “On State statistics”, information requests for statistical information of an internal departmental nature is not subject to disclosure.”

One could quote the Constitution however in fact the same Law clearly refutes this argument with Article 32 stating: “A citizen shall have the right to request state bodies to access any official document, regardless of whether the document relates to that citizen, except in cases of restricted access stipulated by this Law.”

It must also be stressed that the Aarhus Convention clearly stipulates that information regarding adherence to environmental legislation is of public concern and may not therefore be classified as internal departmental information.  It should be stressed that Article 30 of the Law on Information also prohibits any restriction of access to environmental information.

Serhiy Tanchyk has lodged an administrative suit against the refusal of the Zhytomyr Regional Prosecutor to provide the information requested.  The court proceedings into the case are still continuing.

This case demonstrates the ignorance of officials of legislative requirements and how to apply the law.  It shows a disturbing disregard for human rights and lack of professionalism from those occupying positions in the law enforcement agencies.

Other public bodies with communication problems

Difficulties were also experienced in obtaining information from some regional councils and State administrations, the Ministry of Health and its regional divisions; the State Committee for the Environment, the State Department for the Execution of Sentences and the Ministry of Justice.  More than halfof the information requests were not properly met.

The Cabinet of Ministers, the Presidential Administration, as well as regional State Administrations and councils usually passed information requests on to departments of the Ministry for Environmental Protection, although the questions were far from always under the jurisdiction of the latter.

Not all experience difficulties

We would note that there were positive examples of substantive responses being provided to some information requests from the State Committee of Statistics, the State Judicial Administration, the Accounting Chamber, as well as some regional State Departments for the Environmental and Natural Resources. 

We found no significant regional differences with regard to ensuring the right of access to information.

Using the courts

Several precedents were created in using administrative court proceedings in order to defend our constitutional right of access to information.

It must be said, however, that local courts were far from always ready to uphold these rights and to find refusals to provide information unlawful and bind those bodies to rectify the situation.

Other ways of having impact

We found various methods effective.  These involved complaints to the prosecutor’s office asking that an internal enquiry be carried out in cases where information had not been provided; that the behaviour of the officials involved be declared unlawful; that they face disciplinary or administrative proceedings and finally be compelled to provide the information.  After receiving prosecutors’ letters, some of those refusing to give answers chose to abandon their dubious arguments and satisfy the information requests.

The old mind warps

The authorities clearly still have problems comprehending freedom of information and the need for openness in State policy and accountability to the public who have delegated them to this role.

There remains a subconscious mistrust of independent civic activity and especially that aimed at ensuring transparent and controllable activities by the authorities.

Another stereotype which is proving resilient to change is the idea some public officials have that they are entitled to decide themselves which information they will divulge and which they won’t.

An example of this attitude is seen by the reaction of the Ministry of Health Department for the Zaporizhya region to an information request from Yury Babinin, the head of “Public Watch”.  Mr Babinin asked for data on the health of victims of the Chernobyl Disaster among residents of the region registered in priority medical care groups.

The Ministry of Health’s department refused to provide the information, stating:

“According to Article 37 of the Law on Information, information is for official use only and cannot be used to exercise the rights and interests of a Ukrainian citizen and publishing beyond its boundaries, particularly with interpretation of the report on the observance of human rights in Ukraine  [this does not appear to derive from the said law – translator].  According to Article 37 of the Law on Information, “All organisations collecting personal information relating to the person shall, prior to handling this information, have the relevant databases officially registered, in keeping with procedures established by the Cabinet of Ministers of Ukraine”

Clearly Mr Babinin’s aim was not to receive confidential information about the state of health of individual people which would indeed be an invasion of their privacy.  He asked for depersonalized statistical data which would indicate any adverse impact of environmental factors on the public health. This information is on open access and must be provided in response to information requests.

The monitoring group believes that this referral to Article 31 is a pitiful attempt to manipulate legal provisions, or an indication of the legal illiteracy of the said official.

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