Human rights in Ukraine – 2008. 7. THE RIGHT OF ACCESS TO INFORMATION
There were no particular changes in 2008 to legislation and practice regarding access to information. All the problems with freedom of information identified in the Human Rights in Ukraine reports from 2004-2007 were also seen in 2008. As in previous years, human rights organizations systematically requested necessary information and often received refusals, fob-offs, or quite simply heard nothing at all. Refusals to provide data were often explained as being because the information was classified as confidential.
2008 saw the end of the first stage of a civic campaign against unlawful classifying of information. In March the Cabinet of Ministers, at the initiative of the Ministry of Justice, took the decision to remove the unlawful stamp restricting access «Not to be printed» from 1, 410 Government acts issued between 1991 and 2005. The Ministry of Justice declassified 1, 015 documents, and gave the others the stamp «For official use only» [DSK]. Analysis of the normative documents revealed shows that they included a certain number on defence issues. However with regard to most documents serious suspicions arise regarding the justification for there having been kept secret, as well as with respect to the legality of the actions envisaged in them. Such documents can be divided into four groups: 1) corrupt activities; 2) various benefits and privileges for high-ranking officials; 3) behind the scenes political deals; 4) future plans for the development of various areas of the economy or other documents which pertain to State investments. The question is entirely clear and simple: if there was nothing untoward in these acts, why were they concealed?
The civic campaign against unlawful classifying of information needs to be continued. The President’s Secretariat is still refusing to make public at least the names of normative acts stamped «Not to be published» passed up till 2005 (42 out of 44 Presidential acts adopted with this stamp in 2005 have been declassified, with those remaining being labelled «For official use only». Therefore one of the tasks of this campaign is to compel the President’s Secretariat to declassify the documents concealed through this unlawful stamp. Another task is to force the Cabinet of Ministers to reveal the names of acts issued from 2005 onwards which carry the stamp «For official use only». At present we know only the data they were passed and the number of the document which makes it impossible to carry out proper public control. Together with the lack of a List of Items of Information constituting confidential information held by the State [literally, «which is the State’s possession – translator], this makes it impossible to foresee whether specific information should be on restricted access.
Back on 27 November 1998 the Cabinet of Ministers passed Resolution No. 1893 approving Instructions on rules of procedure for working with documents holding confidential information held by the State. It is precisely these documents which were stamped «For official use only» and they could be accessed only by those allowed access to secret documents pursuant to the Law «On State secrets». It is ironical that the Resolution was published in the «Government Herald» on 10 December, the 50th anniversary of the adoption of the Universal Declaration of Human Rights. We would note that the stamp «For official use only» set out in such an Instruction remains unlawful since Article 34 of the Constitution states that restrictions on freedom of information must be established by law, not by an instruction, that is, a normative act of the Cabinet of Ministers.
Item 2 of this Resolution stated that all State authorities and bodies of local self-government, enterprises and organizations of all types of property were within the space of 6 months to draw up lists of such information in their possession. The Instruction does not specify who determines which particular items of information are confidential, and on the basis of what criteria. Almost 10 years have elapsed since this Instruction was issued and yet it is still not known whether such Lists have been created, and if they have, where they have been made public. Normative-legal acts with the stamp «For official use only», passed by central authorities have appeared in computerized legal systems without names, only the number and date that they were passed. At the same time, the Code of Administrative Offences contains a norm on administrative punishment for divulging such information, and Article 330 of the Criminal Code envisages criminal liability for passing it on to citizens of other countries. .Cases are known where administrative penalties for disclosure of such information have been applied. Yet it is impossible to determine which specific items are to be considered confidential information held by the State. At present a journalist, having received some information, cannot be certain that the latter is on open access, and should, strictly speaking, receive permission for its publication in the relevant State authority in whose possession, use or at whose disposal the item of information should be. This effectively means the introduction of censorship which is prohibited by Article 15 of the Ukrainian Constitution.
A State List of Items of confidential Information held by the State is therefore needed, but has yet to be created. We thus have the paradoxical situation where we do not have access to official documents providing a list of items of information which are confidential, in other words, we can’t know what it is that we are not supposed to know.
In view of this, the Kharkiv Human Rights Protection Group together with the civic organization «Maidan» Alliance decided to investigate which central authorities have lists of information stamped «For official use only». At the beginning of 2008 they sent information requests to 80 central authorities as given on the official website of the Cabinet of Ministers, to the Cabinet of Ministers itself, (he Verkhovna Rada, the President’s Secretariat, the State Department of Affairs, as well as 27 regional State administrations (oblast administrations, the Kyiv City State Administration, the Sevastopol City State Administration and the Government of the Autonomous Republic of the Crimea). The respondents were asked to provide a list of items of confidential information held by the State.
The process of obtaining lists of confidential information was interesting. None of the addressees observed Article 33 of the Law «On information» which makes it obligatory to send the person requesting the information written notification within 10 days that the information will be provided, or an explanation as to why it will not. Out of 27 regional (oblast) State bodies, lists were sent by 19. The remaining 8 either failed to respond at all or gave far-fetched grounds for refusing to provide the information. With regard to those administrations which failed to provide information, appeals were sent to the President’s Secretariat asking for assistance in receiving the information. Responses were received from all 8 regional administrations after they were sent this appeal from the Secretariat with the note on it «Control». As a result, out of all regional bodies of power only the Zaporizhya Regional Administration, as represented by its Deputy Head Roman Dryhynych, refused (three times) to provide the information requested. This administration has classified the very List of items of confidential information «For official use only». The Zaporizhya Administration was sent a request to remove this stamp or, if that were not possible, to explain the reasons for it not being possible (in contrast to all other regional administrations). It was also asked to give the date and number of the decision to use the stamp «For official use only». It responded by refusing to remove the stamp, but failed to provide reasons.
Out of 84 central authorities, lists with responses to the first information request were received from only 45 ministries and departments. 38 State bodies were sent a repeat request, and in some cases we approached them three times asking that they adhere to the norms of the law and warning that we would lodge an administrative suit with the courts if they failed to do so. As a result, 70 State bodies provided lists they had put together and 14 refused. The Cabinet of Ministers, the National Space Agency and the Zaporizhya Regional Administration informed that the List of items of confidential information was itself confidential information and was therefore not provided. The remaining 11 bodies, this being the State Committee for Television and Radio Broadcasting; the Prosecutor General’s Office; the Ministry of Health; the State Tax Administration; the Accounting Chamber; the Ministry of Agricultural Policy; the Ministry of Transport and Communications; the Ministry of Fuel and Energy; the State Committee on Consumer Standards; the National Bank; the State Department of Affairs (the latter also refused to provide a full and up-to-date text of the Regulations «On State management of affairs», affirmed through a decree issued by President Kuchma with the illegal stamp «Not to be published, and the relevant information request asking to see this document was sent).
Various reasons were given for turning down the information requests: reference to Article 37 of the Law «On information»; the assertion that the person seeking the information did not have legal grounds for receiving these lists, etc. At the same time, it should be noted that the lists of items of confidential information in force in the Prosecutor General’s Office, the Ministry of Fuel and Energy and the Ministry of Agricultural Policy are available on the computer legal system «Liga. Zakon» [«League Law»].
We would note that some central authorities still do not have Lists of items of confidential information and replied that the list was in the process of being drawn up. This was stated, for example, by the Ministry of Finance and the State Department on Communications and Informatization. They provided their lists in spring 2009.
Claims were lodged with the District Administrative Court in Kyiv against 12 of the above listed bodies (besides the Ministry of Fuel and Energy and Ministry of Agricultural Policy whose lists are available) On receiving a court summons, the Ministry of Transport and Communications immediately provided its list This leaves 11 law suits current. The court joined 9 claims together, and considered those against the Prosecutor General’s Office and the National Bank separately. In March a decision was passed changing jurisdiction – according to the place of residence of the claimant, registered in the Chernihiv region. The claims were therefore lodged against to the Chernihiv Administrative Court and are awaiting consideration.
It remains necessary to analyze the lists of items of confidential information received and check how justified and lawful it is to add particular items to these lists using a three-tier test, and also to draw up a general list of items of information which the authorities classify as «For official use only». However even a superficial survey of the material received gives grounds for the following conclusions:
1) There is no single State approach with regard to whether confidential information is made public or not.
2) The criteria for restricting access to confidential information are not understandable.
3) Some data which specific bodies have restricted access to are of public importance, and therefore access must in no way be impeded. We can cite just a few examples.
· The State Department on Nationality and Religion classifies the following as «For official use only»: 1) information regarding ethnic and political problems caused by separatist, xenophobic, chauvinist and other destabilizing factors; 2) material concerning conflict over language and measures to regulate it; 3) information about measures to support the Ukrainian Diaspora in neighbouring countries where there are historically territorial claims and possible conflict on those grounds.
The Ministry of the Economy stamps the following information as «for official use only»:
─ on the results of checks of the State Committee on the State Material Reserve by controlling bodies;
─ on the results of tenders to sell material assets of the State reserve;
─ on the economic situation in CIS countries.
The State Committee on Land Resources classifies the following information as for official use only:
· material from inter-State negotiations on issues regarding the State border; technical documentation on delimitation and demarcation of the State border; plans for moving the line of the State border;
· books recording the number of lands (text and graphic parts);
· books recording the quality of lands (text and graphic parts).
The State Property Fund considers the following to be confidential information: problem issues related to the presence of the Black Sea Fleet of the Russian Federation on Ukrainian territory.
The Pension Fund lists information about the financial condition and financial and economic activities of the Pension Fund and its offices; information about the material, technical and information provisions.
· The High Council of Justice classified as for official use only information about disciplinary offences by judges and about specific infringements of legislation by judges this having been received and collected by the Council during checks.
4) There is no coordination regarding which information needs restricted access. For example, the number of items on the lists drawn up by regional administrations ranges from 18 (Ivano-Frankivsk and Kyiv Regional Administrations to 136 (Kirovohrad region).
5) Some instances where access to information is restricted are clearly unlawful such as inclusion in the List of information regarding infringements of the Law «On information» (Donetsk Regional Administration) and the possibility for heads of regional administrations as they wish to classify as «For official information only» items of information beyond the scope of those on the list passed (the Ternopil and Chernihiv Regional Administrations), and others.
Some responses require separate commentary. For example, analysing the answers from the Anti-Monopoly Committee and the Department of the Traffic Police of the MIA, we came to the conclusion that some officials do not always understand the difference between information which constitutes a State secret and information which they classify as confidential on the basis of internal instructions. In response to an information request, the Department of the Traffic Police stated that the classification of documents and information as confidential is carried out in accordance with the Law «On State secrets».
Even such a superficial analysis of the situation regarding access to information stamped «For official use only» shows that no state bodies are guided in issues of restriction of access to information by the well-know principle of freedom of information «The information is classified as secret, not the document». They all use the stamp «For official use only» for the document as a whole when even a small part of it needs restricted access. This unacceptable situation needs to be rectified and access to the open part of any document containing information on restricted access needs to be ensured. Those open parts of normative legal acts must be made public and input into computer legal systems, just like totally open normative legal acts.
We would note that the stamp «For official use only» is used by the authorities fairly frequently. For example, in 2008 the central authorities adopted 96 normative documents with this stamp. This included 27 resolutions and instructions issued by the Cabinet of Ministers; 23 by SBU [the Security Service]; 22 by the National Commission for Regulation of the Electricity Industry; 7 by the Department for State Protection; 5 by the State Committee of Statistics. The President, Foreign Intelligence Service, Ministry of Transport and Communications, the Administration of the State Border Guard Service, the Administration of the State Service for Special Communications and Protection of Information all issued two each. The Ministry of Internal Affairs, the State Department for the Execution of Sentences, and the Ministry for Emergencies issued one each.
In summing up, we should note that the stamp «For official use only», the grounds and timeframe for its use must be stipulated by law. The law should also envisage the creation, running and procedure for making public of a List of such items of information. In our view it would be better for the purpose of designating information, to use the term «official secret, and not «confidential information, the definition of which indicates that what is involved is information which bellows to individuals or nongovernmental legal entities.
The current Law «On information» from 2 October 1992 has exhausted its potential and no longer meets the needs of socio-political and civic life. It diverges significantly from European standards for ensuring access of the public to government and other official information; it does not provide the appropriate legal and logistical safeguards for such access and is not particularly in keeping with the case law of the European Court of Human Rights with regard to Article 10 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. All of this requires work on drawing up and introducing new legal approaches; developing contemporary safeguards for public information meeting European demands; serious modifications to the existing legal paradigm for ensuring freedom of speech and the right to information in general.
At the same time we do not have sufficient grounds for totally rejecting the 1992 Law «On information». At one stage a number of extended provisions were added to this law on the legal definition of censorship, the prohibition of direct and indirect censorship, as well as a number of important guarantees for the protection of the professional status of journalists. To some extent this was as a result of the killing of Georgy Gongadze, the practice of using devastating law suits against newspapers, numerous cases of repression against journalists in CIS countries, etc.
It is clear that Ukrainian society would not at the present time agree to the prospect of losing only recently gained guarantees of freedom of speech and political expression of their will, the norms on an extended definition and on the prohibition of censorship, etc. The adoption of only one, narrow procedural law on access to public information cancelling out the imperfect, however important Law «On information» could adversely affect the situation with freedom of speech in Ukraine. Bearing these circumstances in mind, it would be advisable to draw up two draft laws: one on amendments and additions to the Law «On information» containing norms of material law, retaining existing legal links and coordinated with related legislation (the Law «On State secrets», the List of Items of Information which constitute a State Secret; the Laws ««On Printed Mass Communication Media (the Press)»;, «On Television and Radio Broadcasting», «On the procedure for media coverage of the activities of public authorities and bodies of local self-government in Ukraine», etc) and a purely procedural draft law «On access to information».
In 2006 civic organizations finished drawing up the relevant draft laws. The Centre for Political and Legal Reform [CPLR] prepared a draft Law «On access to public information» and the Kharkiv Human Rights Protection Group – a draft law «On amendments to the Law «On information», which was coordinated with the CPLR draft law. These draft laws were tabled in the Verkhovna Rada by National Deputy Andriy Shevchenko..
In drawing up the draft laws, the following documents were used as methodological base: the Universal Declaration of Human Rights (1948), Article 19; the International Convention on Civil ad Political Rights (1968), Article 19; the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 10; the US Law «On freedom of information» (1968); the model Hungarian Law on Protection of Information (The Law on Personal Data Protection and Access to Information of Public Interest, № LXIII, 1992 р.; the model law on freedom of information drawn up by the international organization Article 19; a number of judgments from the European Court of Human Rights on the application of Article 10 of the European Convention on Human Rights; the 1997 UNESCO Sofia Declaration; the 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information; Principles of legislation on freedom of information (the right of the public to know, drawn up by the international organization Article 19; Recommendation of the Committee of Ministers of the Council of Europe № R(94)13 on media pluralism and diversity of media content; the Recommendation of the Committee of Ministers of the Council of Europe № R(99) 15 on media coverage of election campaigns; the Recommendation of the Committee of Ministers of the Council of Europe № R(2000) 23 on independence of regulatory bodies in the field of television and radio broadcasting; the Recommendation of the Committee of Ministers of the Council of Europe № R(2000) 13 on European policy regarding access to archives; the Recommendation of the Committee of Ministers of the Council of Europe № R(2000)7 on the right of journalists to not divulge their sources of information; the Recommendation of the Committee of Ministers of the Council of Europe № R(2002) 2 on access to official documents, as well as special documents and material.
All recommendations on improving access to information in the annual Human Rights in Ukraine reports from 2004 to 2007 remain current.
1) Declassify all normative legal acts stamped «Not to be published» and scrutinize documents classified as «for official use only» in order to establish whether their classified status is well-founded...
2) Adopt a new law on information which would guarantee the access to information in government bodies and bodies of local self-government on the basis of the Recommendations of the Committee of Ministers of the Council of Europe № R 19 (1981), REC 2 (2002), 13 (2000) of the UN/ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention); as well as other international standards on freedom of information..
3) Review the norms of Article 15 of the Law «On state secrets» so as to allow for only a specific text containing a state secret to be classified, and not the entire document.
4) Analyze the «Lhe List of items of information that constitute State secrets» in order to decide whether the classification is warranted, applying the three-tier test of the European Court of Human Rights for determining whether there is «damage» and «impact on public interests», as well as Article 47-1 of the Law «On information».
5) Revoke the Presidential Decree №493 from 21.05.1998. «On amendments to some Decrees of the President of Ukraine on the state registration of normative legal acts».
6) Register all normative legal acts issued by the Prosecutor’s Office with the Ministry of Justice.
7) Create an open register of all normative acts of the Prosecutor’s Office and an open database of normative acts pertaining to citizens’ rights and duties
8) . Create the conditions enabling members of territorial communities to see all decisions passed by bodies of local self-government (depending on the conditions, in the most efficient manner). Thus, for example, where possible, to create websites of bodies of local self-government with mandatory posting of a full register as well as the actual texts of all decisions passed.
9) Ensure the publication and open access to all decisions passed by local administrations (at the level of regions, as well as the cities of Kyiv and Sevastopol).
10) Taking into consideration the case law of the European Court of Human Rights and principles of legislation on the freedom of information, develop an educational course on international standards of access to information and practice of their application in Ukraine, and carry out training for judges of local and appeal courts of all 27 regions of Ukraine and for public officials who work in press services and public relations departments of government bodies and bodies of local self-government;.
11) Run training courses for state officials on the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.
12) Representatives of the mass media, human rights and other civic organizations should monitor the efficiency of active and passive access to information at central and local levels, as well as using the courts more actively against the inaction of state officials with regard to the providing of information and refusals to provide information
 Prepared by Yevhen Zakharov, KHPG Co-Chair; Oksana Nesterenko, KHPG Expert on Information Law, Lecture at the Department of Constitutional Law of the Yaroslav the Wise National Law Academy; and Oleksandr Severyn, Legal Adviser to the “Maidan” website.
 The grounds for the claim against the Prosecutor General’s Office whose list is also available can be found at: