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Human Rights in Ukraine. Website of the Kharkiv Human Rights Protection Group
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9. THE RIGHT OF ACCESS TO INFORMATION

   


[1]

The analysis of the right of access to public information in 2012 indicates the absence of any progress towards greater information openness of the Ukrainian authorities, in particular, all negative trends in the observance of this law, which were described in the report for 2011 (see: Report of the human rights organizations. Human rights in Ukraine - 2011) were observed during 2012 as well.

Chronologically, the first event in 2012, which demonstrated the unwillingness to accept the paradigm of openness, was the decision of the Constitutional Court of Ukraine in the case of constitutional lodgment of Zhashkiv District Rada, Cherkasy Oblast, on official interpretation of the provisions of the first, second paragraphs of article 32, second and third paragraphs of article 34 of the Constitution of Ukraine” on January 20, 2012, no. 2-rp/20122[2]. Another signal that the Ukrainian government is not internally ready for more openness, despite all declarations and statements by senior government officials, was the refusal to let have the oath of the President of Ukraine by the administrative apparatus of the Verkhovna Rada of Ukraine and the Secretariat of the Constitutional Court of Ukraine. Interestingly, their reasons were different: if the Verkhovna Rada of Ukraine referred to the fact that the document contained personal data about a person, such as the signature of the President of Ukraine, the Secretariat of the Constitutional Court explained its refusal by the fact that this information was for official use only[3]. Therewith, neither the Verkhovna Rada of Ukraine, nor the Constitutional Court of Ukraine were impressed by the fact that the oath of the President of Ukraine was definitely a public event, and, accordingly, the text of the document that had been previously published was an open information. There is no need to furnish proofs that this information is of public interest and in view of part 2 of art. 6 and art. 9 of the Law of Ukraine "On access to public information" it cannot be classified as restricted information. Equally surprising is the argument that the signature of the President of Ukraine is a personal information with restricted access and therefore cannot be lent out. After all, by that logic, any instrument of any authority cannot be lent out, because it contains the signature of the official responsible, and even if we accept the logic of the administrative apparatus of the Verkhovna Rada of Ukraine, in accordance with part 7 art. 6 of the Law of Ukraine "On access to public information" it means limited access to information and not the document. Thus, under these circumstances, the administrative apparatus of the Verkhovna Rada of Ukraine had to cross out the signature of the President, if they believed that this was confidential information and lend out this document. However, earnestly, this situation shows lack of commitment to information transparency of the top authorities of Ukraine, and thus calls into question the existence of real democracy in Ukraine.

In turn, the Verkhovna Rada of Ukraine has not adopted the expected amendments to other laws in order to bring them into conformity with the Law of Ukraine "On access to public information" and the changes adopted, such as the Law of Ukraine "On Personal Data Protection" do not solve the existing conflicts, which certainly does not promote respect for the right of access to information. In particular, the Law of Ukraine "On Personal Data Protection" contains a norm specified by part 2 of art. 5 that "personal data, except for the impersonalized personal data, by their access mode belong to classified information.” This norm does not contain the reservation as follows: except for cases specified in part 5 of article 6 of the Law of Ukraine "On access to public information" and other cases, if the information is socially necessary.” There is also no provision that "the personal information associated with the performance of his/her professional duties, including education certificates, certificates and other documents proving his/her qualification, materials from personnel files relating to or connected with acts of duty (missions, awards, reprimands, etc.), and so on is not a classified information.” This creates collision between the rules of law in the area of access to information and protection of personal data and is a pretext for denial of right to information in the field of management of budget funds, public and municipal property, especially plots of land, which ultimately negatively affects the transparency of public authoritiesand local self-government.

For example, every second refusal to provide information on the transfer of the plots of land to private persons is justified by local bodies of self-government that this information refers to information about a person and constitutes personal data. Although part 5 art. 6 of the Law of Ukraine "On access to public information" specifies that "the access to information about management of budget, possession, use or disposal of public, municipal property, including copies of relevant documents, condition of receiving these funds or property, family name, name and patronymics of physical entities names of legal entities, which have received the money or property cannot be limited.”

In general, the jobbery on the protection of privacy was one of the main reasons to limit unauthorized access to information in 2012, which shows the lack of understanding of the concept of privacy by officers as such, because the main goal of protecting the right to privacy guaranteed by art. 32 of the Constitution of Ukraine is the protection of private life, which really should be protected from the looks of strangers (except for public figures, or when the disseminated information is socially necessary), but at the same time professional life, especially professional duties of officials and personnel, their qualifications, as well as documents confirming them, should not be considered confidential information about a person to which access may be restricted. Anyway, the availability of part 2 of article 5 of the Law of Ukraine "On Protection of Personal Data" is a sufficient argument for refusing to provide information about certificates that confirm the qualifications of a person. For example, the Shevchenko District Court, Zaporizhzhia, refused to provide copies of the certificate of completion by the secretary of the judicial session Petrov S.V. of training in "Technical perpetuation of trial" justifying it by the fact that this information was confidential (personal data). That's why the adjustment of the Law of Ukraine "On Protection of Personal Data" to the Law of Ukraine "On access to public information" is one of the pressing issues that are important for the improvement of the right of access to information.

   Another example of mismatch of the Law of Ukraine "On access to public information" and the Law of Ukraine "On Information", which was not dealt with in 2012, is part 2 of art. 16 of the Law of Ukraine "On information", according to which "the legal regime of tax information is determined by the Tax Code and other laws of Ukraine", although according to the Law of Ukraine "On access to public information" this information may be classified as restricted only in accordance with the three-tier test. This collision between the provisions of the laws in practice leads to the inclusion of public information to classified information, including the office information in violation of p. 2, p. 5 of art. 6 and art. 9 of the Law of Ukraine "On access to public information.” In particular, the Kremenchug Joint State Tax Inspectorate of Poltava Oblast of the State Tax Service denied the request of "SPF “Tekhvahonmash” Ltd. to access to public information, which was to obtain printouts of personal account card of “SPF “Tekhvahonmash” on value-added tax on goods produced in Ukraine (works, services), payment code 14010100 for the period from 01.10.2009 till 30.09.2012 owing to the fact that the tax inspectorate considers this information the office information. However, despite the illegality of such a decision, as this information is about the legal entity, which requested this information, and in accordance with part 2 of art. 6 and art. 9 of the Law of Ukraine "On access to public information" it cannot be labeled as office information, that is classified information, the court under part 2 of art. 16 of the Law of Ukraine "On Information" came to terms about the legality of classification of relevant information as an office information, and referring to the Law of Ukraine "On access to public information" about the existence of this type of classified information, however, without mentioning provisions of the law permitting it only on the basis of the three-tier test[4].

Equally absurd is the situation, when the officials and employees of state and local governments are called to official account for violation of art. 212-5 of the Administrative Code of Ukraine, namely for violation of registration, storage and use of documents and other information media containing confidential information, which is the property of the state, despite the fact that the basis for administrative liability for violations should be the Law of Ukraine "On access to public information" and the new Law of Ukraine "On information", but none of them provides for liability for violation of registration, storage and use of documents and other information media, as far as the general category of classified information is not specified by any of these laws. Moreover, the art. 7 of the Law of Ukraine "On access to public information" and part 2 of art. 21 of the Law of Ukraine "On information" clearly specify that the subject of authority cannot classify the information about their activities as confidential information. However, as art. 212-5 of the Administrative Code of Ukraine has not been abolished, and in addition the Resolution of the Cabinet of Ministers of Ukraine dated November 27, 1998 no. 1893 "On Approval of the Regulations on the procedure for registration, storage and use of documents, files, books and other physical media containing office information" has not been adjusted in accordance with the Law of Ukraine" On access to public information", art. 212-5 of the Administrative Code of Ukraine continues to be quite popular in law enforcement by SSU and Ukrainian judges. So in 2012 we documented 14 cases of calling to administrative account under this section notwithstanding the provisions of the Law of Ukraine "On access to public information" that legislative acts of Ukraine shall apply to the extent not inconsistent with this Law.

Strictly speaking, we are not talking only about the formal absence of the term "confidential information, which is the property of the state" in the Law of Ukraine "On access to public information", because instead, following the logic of the Cabinet of Ministers of Ukraine, a new term "office information" was introduced, and about the conceptual difference between these two notions. However, in accordance with part 2 of art. 6 and art. 9 of the Law of Ukraine "On access to public information" the public information can be classified as the office one only in very limited cases, while the inclusion of information about government activities to confidential information was determined at the discretion of state authorities. And unlike the Law of Ukraine "On information" as amended in 1992, the Law of Ukraine "On access to public information" implies that access is limited to information, but not the document. So, given the above, based on the spirit and letter of the Law of Ukraine "On access to public information", the only responsibility that may occur for dissemination of office information may be disciplinary responsibility taking into account the nature of this information.

Generally, it seems very strange that when the mode of access to information is determined by the subject of authority itself, it cannot independently, after assigning it to the category of office information, determine the order of registration, storage and usage, and change its own decision and make it open in case, if the grounds for attributing it to the office information expired. Even more surprising is the fact that these actions must be externally monitored and administrative responsibility occur, if during the inspection the SBU finds that the order has been violated, because the subject of authority determines on his own to what extent it is important for him to prevent the leak of information.

The only positive point of legislative changes in 2012 was the adoption of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine", in particular, changes to part 6 of art. 6 of the Law of Ukraine "On access to public information", which broadened the range of people, information about property, income, expenses of which specified in the declaration do not belong to the classified information. These changes should promote greater information transparency.

The law-making by the Cabinet of Ministers of Ukraine does not raise positive expectations as well. Notwithstanding the provisions of the Law of Ukraine "On access to public information", which put an obligation on the Cabinet of Ministers of Ukraine to bring in the two-month term following the enactment of the law its regulations in accordance with the Law of Ukraine "On access to public information" after formal changes in 2011 of the Resolution no. 1893 "On Approval of the regulations on the procedure for registration, storage and use of documents, files, books and other physical media containing officey information," the Cabinet of Ministers of Ukraine has not complied with this requirement. This is particularly a concern due to the fact that the Resolution no. 1893 continues to influence the practice of access to public information. Thus, the analysis of denials in the provision of information by subjects of authority suggests that the relevant resolution of the Cabinet of Ministers of Ukraine, namely, the regulations under which "lists of data that contain office information, and other shall be approved by ministries and other central executive bodies, Council of Ministers of the Autonomous Republic of Crimea, Kyiv and Sevastopol city state administrations" are widely used to justify the refusal to provide information without understanding that the office information may be classified as such only in the case of categories of information under art. 9 of the Law of Ukraine "On access to public information" subject to a set of requirements under part 2 of art. 6 of the Law of Ukraine "On access to public information."

Another factor that complicates access to public information is unjustified classification of information about the activities of state and local governments as office information. The analysis of the lists of office information approved by central authorities, as well as the Constitutional Court of Ukraine suggests their inconsistency with  the spirit and the letter of the Law of Ukraine "On access to public information" including requirements of part 2 of art. 6 and art. 9 of the Law. For example, the Constitutional Court of Ukraine includes into the list of official information the items as follows: the constitutional petitions and appeals, research and expert opinions. It should be noted that this is not only contrary to the Law of Ukraine "On access to public information", because the petitions and appeals, as well as research and expert opinions do not belong to the category of office information pursuant to art. 9 of the Law, but also is a violation of p. 7 of art. 6 of the law and international standards, since the access must be limited to information, rather than to the document as a whole. It is noteworthy that, taking into consideration the special place of the Constitutional Court of Ukraine in the state mechanism, the activities of this body should be fully open to the public, because all, without exception, issues being considered by the CCU are of public interest. Therefore, classifying this information as the office one contradicts the paradigm of openness and additionally is a signal to other public bodies about optional character of implementation of the Law of Ukraine "On access to public information."

Moreover, classifying of petitions and appeals as an office information is not consistent with the practice of the European Court of Human Rights, in particular the decision in the case “Társaság a Szabadságjogokért”vs. Hungary”[5], which dealt with the rejection by the Constitutional Court of Hungary to solve constitutional query for information. The European Court noted in that decision that "a complaint for the abstract consideration of legislation, especially by members of parliament, is certainly an issue of public interest … The monopoly of the Constitutional Court on information is a type of censorship and can lead to a situation when the media and public controllers will not be able to play their vital role in connection with the provision of accurate and reliable information on issues of interest for the community in public debate." The lists of office information are not also an example for imitation: Ministry of Health of Ukraine, Ministry of Internal Affairs of Ukraine, State Tax Service of Ukraine, State Migration Service and other central bodies of executive power. Since the latter are also formed in violation of p. 2 of art. 6 and art. 9 of the Law of Ukraine "On access to public information".

Still unsolved at the legislative level is the problem of access to archives, despite the results of the expert survey and monitoring of archives published by the “Liberation Movement Research Center” in early March 2012 that showed serious problems in this area and conclusion that one of the reasons for unsatisfactory conditions of access to archives is imperfect legislation[6], the Verkhovna Rada of Ukraine has not moved a single step in resolving this issue during the second half of 2012,.

The elections to the Ukrainian parliament in the fall 2012 showed indisposition of Ukrainian authorities to promote greater information transparency. Despite certain guarantees providing open information about the nominees (section 2, part 2 of art. 13, section 5 p. 1 of art. 54, part 2 of art. 63 of the Law of Ukraine "On Elections of People's Deputies of Ukraine") and well-known principle of the European Court of Human Rights (Lingens vs. Austria from 08.06.1986): “The amount of information about a public person, access to which is limited, must be much less than the amount of information about a private person,” the Central Election Commission of Ukraine still refused to provide copies of complete autobiographies of nominees.

However, the greatest concern is the formation of judicial practice in the area of access to information. The analysis of 80 court decisions in cases of appeal for illegal refusals to give access to public information demonstrates the unwillingness of judges to perform in-depth analysis of this category of cases, formal approach to their consideration and, in many cases, lack of understanding of the spirit and the letter of the Law of Ukraine "On access to public information" and general immaturity of these decisions. In particular, out of the analyzed judgments 65% (52 decisions) were made in violation of material law. In none of the cases, when it was a denial of access to public information through its classifying as an office one, the judges failed to properly apply the three-tier test to check the legality of the decision of the authorities on the subject of legality of classification of relevant information as an office one. However, in accordance with part 2 of art. 6 of the Law of Ukraine "On access to public information" only in the presence of the set of conditions specified by this article, the question may arise about the classification of a piece of public information as an office one. In particular, in none of these decisions the judges did not substantiate, what interest is endangered by disclosure of this information, what will be the extent and character of harm from disclosure of this information, and why the damage from publication of this information is greater than the public's right to know. In fact, the judges denied the claim for formal reasons, namely due to the fact that this information belonged according to the list of an organ to office information. In other cases, the courts have agreed that lawful refusal to provide information was directing people to the official website of the institution, while part 2 of art. 22 of the Law of Ukraine "On Access to Public Information" by contrast, indicates illegality of such actions.

The analysis of these judgments suggests that the root cause of this state of affairs is the effect of total secrecy paradigm inherited from the Soviet era, the belief that is inherent in the majority of the Ukrainian society that the information security is more important than the freedom of information and the lack of understanding that freedom of information and open government is the basis for fighting corruption, human rights violations and creation of conditions for a free market and highly competitive economy. Almost a quarter century has passed since that time, however, most of the judges who hear cases related to access to information received Soviet legal education, or in the first decades of Ukrainian independence, that is, when the Soviet approach to freedom of information dominated. That is why the Constitutional Court of Ukraine adopts a decision which contains no clear idea that public figures should be more open to the public than private ones, and judges of the administrative courts do not apply the three-tier test under art. 6 of the Law of Ukraine "On access to public information" in matters relating to dispute over the lawfulness of the authorities to classify public information as restricted information. For the use of three-tier test it is necessary first to understand the importance of information transparency of the authority. While, as in other Western countries, although the laws do not contain this standard de facto, the judge in cases involving disclosure consider whether referring to classified information had a legitimate aim, or disclosure of this information could harm the legitimate aim and what can cause more harm––publicity or secrecy of this information.

So, there is a great need for special training programs for judges, which will consist of two parts: theoretical and practical. The theoretical part should include an explanation of the importance of open government and freedom of access to information. The practical part should be presented in the form of training on the use of access to information, including the application of part 2 of art. 6 of the Law of Ukraine "On access to public information", explaining what socially important information means.

In general, the analysis of the practice of ensuring the right of access to information by state and local authorities suggests that all efforts of the authorities during 2012 were directed not to bring it into conformity with the Law of Ukraine "On access to public information", but on the contrary, trying to maintain the status quo, in other words, to make formal changes without actually reforming their own practice relationship that is between the authorities and the citizens of Ukraine in the sphere of relations under the new paradigm, which is embedded in the Law of Ukraine "On access to public information. "

In the end, we must note that recommendations made in the report in 2011 still remain valid.

Recommendations:

Constitutional Court of Ukraine:

1. Bring in accordance with part 2 of art. 6, p. 9 of the Law of Ukraine "Resolution of the Chairman of the Constitutional Court of Ukraine on August 30, 2011 no. 57/2011 “On classifying information, created by the Constitutional Court of Ukraine, as the office one and procedure in handling material carriers of such information”

Verkhovna Rada of Ukraine:

1. Exclude art. 212-5 of the Administrative Code of Ukraine;

2. Reform archival legislation including amendments to the Law "On National Archival Fund and Archival Institutions";

3. Adopt a law on public access to collegial meetings of the authorities and their agencies;

4. Change the law "On Information", "On access to public information" and "On Personal Data Protection" in order to comply and achieve compliance with international human rights agreements to which Ukraine is a party, including: 1) in part 2 of art. 5 of the Law of Ukraine "On Personal Data Protection" to add a provision reading "personal data is not classified information in cases, when the information is socially necessary, and in cases under p. 5 of art. 6 of the Law of Ukraine "On access to public information" and other laws”;

5. In order to implement art. 11 "Protection of the person disclosing the information" of the Law of Ukraine "On access to public information” to amend the Criminal Code of Ukraine. In particular, to envisage an article on relieve of accusers (i.e. persons specified under art. 11. Law on access) from criminal responsibility for disclosure of classified information. In addition, to adopt a bill on the Protection accusers in order to implement the provisions of art. 11 of the Law of Ukraine "On access to public information";

6. To review the norms of article 15 of the Law of Ukraine "On State Secrets" and provide a classification only of texts containing state secrets, and not the documents as a whole;

Commissioner of the Verkhovna Rada of Ukraine:

1. To develop executive course and organize training of executives and personnel responsible for providing information and classifiers in public and local self-government bodies and courts in all 27 regions of Ukraine;

2. To develop recommendations for harmonizing of the legislation of Ukraine in the field of access to information with the Law of Ukraine "On access to public information."

Cabinet of Ministers of Ukraine:

1. Revoke the Decree of the Cabinet of Ministers of Ukraine dated November 27, 1998 no. 1893 "On Approval of the Regulations on the procedure for registration, storage and use of documents, files, books and other physical media containing office information";

2. Open all regulations labeled "off the record" and analyze documents for official use, if they should be classified;

3. Ensure publication and open access to all decisions of local administrations (at the level of oblasts and cities of Kyiv and Sevastopol).

President of Ukraine:

1. Cancel the Decree of the President of Ukraine no. 493 from 21.05.1998 "On Amendments to Some Decrees of the President of Ukraine on state registration of legal acts."

The central executive bodies:

1. Bring the list of official information in accordance with part 2 of art. 6, part 9 of the Law of Ukraine.

Security Service of Ukraine:

1. Analyze the "Body of state secrets" in terms of the validity of classifying information using the three-tier test for the presence of "damage" and the impact on the "public interest" and article 6 of the Law "On Access to Public Information."

Local self-government bodies:

1. Bring the list of official information in accordance with part 2 of art. 6, p. 9 of Ukraine, and if there is no information that should be classifies in accordance with the norms of the above law, to annul these lists;

2. Comply with the Law of Ukraine "On access to public information" concerning publication of draft decisions of local self-government bodies (part 3 of article 15.)

3. Bring the practice of responding to requests for information regarding the disposal of budgetary funds, public or communal property in accordance with part 5 of art. 6 of the Law of Ukraine "On access to public information."

 

[1] Prepared by Oksana Nesterenko, HRG expert on freedom of expression of views.

[2] See: Ccommentary of V.Rechytsky  to this Decision: http://www.khpg.org/index.php?id=1328294578

[3] Leshchenko S. Secret signature of Yanukovych / / http://www.pravda.com.ua/articles/2012/07/20/6969203/view_print

[4] See: http://www.reyestr.court.gov.ua/Review/27537389

[5] Case of Társaság a Szabadságjogokért vs. Hungary. The historic decision of the European Court of Human Rights / / http://www.khpg.org/index.php?id=1241463238

[6] Researchers: cases of restriction of access to archives is still very frequent / / maidan.org.ua

 

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