“Totalitarian regimes usually block access to information before all else”
An interview with Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union
What are the shortcomings in legislation on access to information? What exactly restricts peoples access and how? Is it possible at all to ask such questions?
There are several significant problems which make it impossible to exercise the right of access to information.
This is firstly the huge amount of information held by the authorities which is unlawfully classified. This involves first and foremost use of the stamp restricting access “For official use only”. There is no clear criterion in legislation for which information is placed in this category, nor any control established over the use of this stamp. It is also practice to classify not the specific information, but the entire document. For example, one paragraph in the document contains information which based on the unclear legislation is deemed confidential, and the whole document gets classified. This does not comply with international standards.
As for secrets, the relevant type of information should be included in the List of Items of Information which constitute State secrets. Yet there is no such List for information with the stamp “For official information only”. The latter is applied in the case of confidential information held by the State, and if there are such lists they are not always made public. In such cases you have the paradoxical situation where we do not have access to official documents confirming the lists of information which are confidential. In other words we cannot find out what types of information are classified.
There are also serious problems with information being unlawfully classified as secret. The list of items which are deemed State secrets is too broad and not justified in a democratic society. For example, information about generalized data on investigative operations (including the number of permits issued to intercept information from communications channels) is considered a State secret whereas in all democratic countries this information is included in the public reports issued by the law enforcement agencies on their work since it shows the level to which the law enforcement agencies and security service intrude upon peoples freedom.
Legislation also fails to clearly deal with receiving information which needs to be separately sought through an information request.
There are other problems with receiving open access information. The authorities often dont respond to information requests, legal entities are simply not entitled to submit such requests, and journalists do not have the mechanisms to swiftly receive information. Bearing in mind the specific nature of information, specifically the fact that it becomes stale so swiftly, it is not just important that an information request is met, but how swiftly the necessary document or information is provided. There is no established effective liability for infringing the right of access to information.
Thus, as well as excessive classifying of information, legislation does not establish effective procedure for receiving information.
How well does the new draft law deal with these problems?
If you mean the draft law being drawn up by a working group attached to the Ministry of Justice, this has both positive and negative features. The general move in the direction of eliminating the problems mentioned above and clearly stipulating the procedure for receiving information is to be welcomed. Although it is too early to know how this will be in the final version.
How important is the principle of access to information for a democratic civic society?
Openness of information is a cornerstone of democracy. Without objective information you cannot make correct and informed choices at the elections, and the media cannot use their controlling functioning over the authorities effectively. Without information its not possible to assess the work of the current government or deputies, or to simply draw conclusions about many social processes. Free circulation of information is vital for a democracy and for the development of society. Totalitarian regimes usually block access to information before all else.
On the other hand, access to information is an issue of personal safety, especially if one thinks of access to information about the environment or other information about what can harm us.
There are a lot of types of information which can be classed as secret, for example commercial or State secrets, yet which are of importance to the public. Where do we draw the line between public and not public information?
We need to apply a simple test each time. Information is classified as secret for certain clearly defined reasons – when such reasons are unequivocally defined by legislation, other reasons cannot be cited. For example, information about crimes, human rights abuse or danger to the public may not be classified as secret. In other words, the opportunities for classifying information as secret and the relevant procedure must be incredibly clearly spelled out in legislation, and all other information should be openly available.
Later one should look at what potential harm could be caused if the given information is circulated. Such harm must be real, not hypothetical, i.e. there needs to be a cause and effect link between the information and the consequences. At the same time the public need for this information must be considered.
In any case, I believe, that where there are doubts the principle of openness of information should prevail. It should be open unless the need to classify it as secret becomes evident. The problem is that the government is inclined to take the contrary view. Nor in Ukraine is there effective control over classifying information, for example by the Human Rights Ombudsperson which could check the balance of interests. Therefore in the majority of cases, the public and individuals dont have any idea what information is kept secret, and cannot therefore stipulate this balance.
The interviewer was Oksana Synytska, for ІМІ