Access to information the Party of the Regions way
Taras Shevchenko, Director of the Media Law Institute has provided this legal analysis of the draft Law “On amendments to some legal acts on ensuring access to public information” No. 7321 tabled in parliament by National Deputies Olena Bondarenko and Volodymyr Landyk.
The draft law is presented as the Party of the Regions alternative to Andriy Shevchenko’s draft Law on Access to Public Information, therefore some of the positions are presented with comparison.
On 2 November National Deputies from the Party of the Regions, Olena Bondarenko and Volodymyr Landyk formally registered their law on access to public information, this meaning that the Party of the Regions will not be supporting the draft law from civic society and tabled by Andriy Shevchenko which has already been passed in its first reading.
Time frame for answering information requests
Announcing their draft at a meeting of the Committee on Freedom of Speech and Information, and giving grounds for their refusal to support the draft law already awaiting its second reading, Olena Bondarenko stated that her draft law contains very many democratic provisions. These included providing an answer within 5 working days.
It transpires that Ms Bondarenko failed to carefully read the draft law she was asked to table. Article 45 of this draft law states: “The time frame for studying whether it is possible to answer an information request must not exceed five working days”. However study of this question and provision of the information are different matters.
Another sentence reads: “The overall period for studying and answering an information request may not exceed twenty working days”.
20 working days is virtually the same as the 30 calendar days in the current Law on Information. This is despite the fact that even President Yanukovych spoke out in favour of a considerably shorter time frame.
The logic is also not clear behind the establishing of a time frame for studying and one for providing information which the Shevchenko draft bill rejects. The current law stipulates 10 days for studying and 30 for providing access only because it was passed in 1992.
It was envisaged that the authority does not send a copy of the document, but invites the person to come to them in order to see the document. It was therefore stated that 10 days were given for notification and 30 days for everything. Retaining this now is senseless. It would appear that the authors of the initiative are not experts in the subject they have been working on.
The three-tier test
Olena Bondarenko’s draft law does not contain one of the most fundamental guarantees regarding access to information known as the three-tier test. The point of this test is that even if a document is not on open access, the official having received an information request should assess the document according to 3 criteria:
1) Is a legitimate interest served in restricting access?
2) Would its divulgence cause considerable damage to the interest?
3) Is the damage from making it public more important than the interest to society in receiving it?
If there is even one negative answer, then the document should be provided in response to the request. This formulation is applied for court analyses of refusals to provide access to information. The current law does not contain such rules however they are present in Shevchenko’s draft bill.
The definition of false information is a threat to journalists
At the committee meeting, Olena Bondarenko also boasted that they had worked well on terminology and that this was a strong point of their draft law.
How far this differs from the real situation can be demonstrated by one example, the definition of false information.
“False information is information which for one reason or another inadequately represents the state, qualities or features, characteristics of subjects and objects (things, processes, technologies, resources, etc), facts, events, phenomena etc”.
This definition may be OK for a dissertation on mass communication however the legal term “false information” is in the first instance used in courts in defamation suits against journalists.
From the point of view, therefore, of the Party of the Regions, if a journalist “inadequately represents the qualities or features of subjects”, this means that s/he circulates false information. Although in actual fact a description of qualities is a value judgment for which a person cannot be held liable.
The authorities can again harm the media
Bondarenko’s draft law reinstates the right of the authorities and bodies of local self-government to take journalists, the media and members of the public to court and demand moral compensation for information circulated.
That is, the version of the law on information from the Party of the Regions does not contain the article which was one of our major achievements back in 2003, The law now in force states that an authority may demand only that the information be retracted, not money.
This is a highly democratic norm of which we are proud. It makes it possible to freely criticize the authorities and to circulate information about corruption.
Having carried over some other positive innovations from 2003 – on value judgments, information of public significance, the draft law’s authors removed the restriction on the authorities. I do not think that this was by chance.
The access regime
Having copied a number of positive norms regulating the procedure for access to information from the civic organizations’ draft law tabled by Shevchenko, the authors made a huge number of blunders. For examples, the grounds have now appeared for turning down a request because “the telephone number or email address of the person asking is not given”. This is despite the fact that neither the telephone number, nor the email address even according to this draft law are not mandatory, and do not in fact have to be there at all.
There is worse to come in the requirements regarding the content of the refusal. In contrast even to the current law on information, the Party of the Regions have decided to get rid of the State’s duty to explain the grounds for a refusal.
Instead they need to simply name a reason, and the reasons proposed by the draft law are extremely vague and can be interpreted as they like
Unlawful secrecy stamps
Unfortunately, Bondarenko’s draft law does not remove the issue of unlawful stamps “not to be printed”, “not to be published”. There is a very badly written article on official secrecy which leaves all the existing “holes” intact while providing extremely broad possibilities for closing access to very many documents.
For example, the draft law states that “official secrecy includes information the divulgence of which could violate the constitutional rights and freedoms of individuals and legal entities, information in the sphere of … territorial integrity or public security, for the purpose of preventing disturbances.”
I find it hard to imagine what “information in the sphere of territorial integrity is”. The working group which drew up Shevchenko’s draft law worked on these norms in detail in order to prevent unending possibilities for the use of the stamp “For official use only”.
A considerable amount of the text is made up of fine-sounding abstractions.
For example, I quote: “Information which is in the possession of those in authority is published in the printed press”. It sounds good but has no legal meaning. All information is printed in the press? Which in particular? When? On what conditions?
With respect to conditions
According to the draft law, “the procedure and timeframes for publication of information of those in authority is stipulated by agreements made between the relevant authorities and editorial offices of printed media outlets”.
The text repeats the problem of current legislation being written so that it is unclear whether a media outlet can publish information without an agreement. It is just as unclear whether by this agreement the authority pays the media outlet for coverage or whether the media outlet pays for receiving information.
Among other things, such lack of clarity in practice leads to abuse by the authorities which refuse to give access to information since no agreement has been formulated.
The right of ownership of information
The draft law retains the concept of the right of ownership of information and State ownership of information. Already now the authorities often refuse to provide information claiming that it is their property.
The Constitutional Court, for example, refused to provide the Media Law Institute with expert opinions from law institutes undertaken at the request of the Constitutional Court and acted to the case file. The Court claimed that these were the private property of the institutes (State-owned, incidentally),
That is not the main thing, however. The formulation “the right of ownership of information” may sound absolutely fine to the person on the street however this is not the case in the legal sphere. When somebody has had a piece of text stolen, their authors’ rights have been violated, not their property rights.
The use of the right of ownership would lead to distortions, as with the example of the Constitutional Court, and it is therefore not applied either in Europe or in the USA. This is a Ukrainian invention which, incidentally, they wanted to repeat in the law on personal data protection, this serving on a number of occasions as the grounds for vetoing that law.
Narrowing of the realm of open information
Bondarenko’s draft law is considerably narrower than that tabled by Shevchenko and indicates the circle of people who can be sent information requests.
Having followed the logic of the Shevchenko draft, the authors removed:
1) people / entities funded by the State budget with regard to expenditure of public funding – for example, State-owned universities, State-owned media outlets;
2) people / entities carrying out delegated powers, as well as
3) people / entities, regardless of their form of property, in possession of information of public importance.
Instead the draft law states that those asking for information may, according to this law, also be public authorities. That is incorrect – the right of the authorities to ask for this or that information is defined by separate laws, with the specific features of the body taken into account.
Other forgotten guarantees of access
Many positive norms over which experts worked for several years have found mention in Bondarenko’s draft law.
For example, there is no defence envisaged for public officials who disclose information of public importance about corruption, misappropriations, etc.
We should recall SBU [Security Service of Ukraine] General Kravchenko who disclosed information about SBU surveillance of opposition leaders abroad. Criminal proceedings were initiated against him for divulgence of State secrets. Such an article in the law should provide protection in similar cases.
There is also no norm which stipulates the number of papers provided in response to an information request free of charge. Such a guarantee prevents abuse by an authority which can charge even for copying one page.
Shevchenko’s draft law stipulates that up to 50 pages are provided free of charge. This number was, however, reduced to 10 at the last meeting of the committee.
Good norms in Bondarenko’s draft law include the articles which oblige all authorities to place information about themselves on official websites. This includes all their decisions. Only the amount of information has been significantly reduced – for example, they don’t have to write about “budgetary funds, the procedure and mechanisms for spending them”.
Bondarenko’s draft law also fails to include a clear time scale for making information public. In the draft law drawn up by civic organizations this is 5 days.
Olena Bondarenko’s draft law is thus extremely weak. In many cases it does not improve, but worsens the situation both as regards access to information, and with regard to freedom of speech as a whole.
To now reject a draft law which has already passed through many rounds of discussion, international expert assessments, and was supported by deputies in its first reading in order to begin again, almost from scratch, makes no sense.
Is this highly flawed draft law an indication that the Party of the Regions does not take it seriously? And this is merely a delaying tactic, as well as an inept explanation to the voters for why they are not voting for a draft law put forward by civic society.
If the Verkhovna Rada rejects Shevchenko’s draft law, this will mean that the entire campaign for access to information has been aborted through the fault of the Party of the Regions.
Aborted consciously and cynically, and the President’s problems will be hollow noise.
Taras Shevchenko, Director of the Media Law Institute