Human rights in Ukraine 2011. VIII. THE RIGHT OF ACCESS TO INFORMATION

[1]

1. General overview

The Law of Ukraine “On Access to Public Information” (hereinafter in this section — the Law on Access), adopted on January 13, 2011, as well as the new wording of the Law of Ukraine “On Information”, despite certain drawbacks (see the section on access to information in the previous report 2009–2010) should have become the first step towards the reforms in the area of access to information about activity of the authorities in Ukraine. At the same time, research concerning implementation of the Law on Access conducted by several non-governmental organizations as well as the experts’ conclusions state that there are no significant shifts towards more openness of the Ukrainian authorities. For instance, according to the data of the Ukrainian Independent Center for Political Research, the central bodies of executive power fulfill the requirements of the Law on Access to Public Information only at a level of 50%[2]. As says M. Latsyba, “Citizens can obtain information mostly through an information enquiry, but cannot normally do this through the agency’s official website or through a register of public information”[3]. Although, the analysis of how access to information through an information enquiry is provided gives enough reasons to state that in 2011, in Ukraine, despite all innovations stipulated by the Law on Access to Public Information that aimed to simplify this procedure and establish strict limitations concerning possible classification of information about activity of the authorities as restricted, violations of the right of access to information through information enquiry were, as before, systemic.

In practice, while the authorities reported on implementation of all provisions of the Law on Access, and to prove their statements informed that official websites started special sections on access to public information, and reported on adoption of numerous instructions and regulations concerning enforcement of the right of access to public information, actual provision of requested information and official documents in full scope and within the time period stipulated by the Law would happen seldom, if ever.

Nothing changed, in particular, with access to Ukrainian towns and cities’ general construction plans, the majority of which are still classified as For Official Use Only, and are beyond the reach of the public[4].

Besides, after the new laws on information were adopted it was expected that the Cabinet of Ministers of Ukraine would annul the Resolution of the Cabinet of Ministers of Ukraine as of November 27, 1998, No. 1893 “On approval of the Instruction on procedure of recording, storage and use of documents, cases, editions and other material media of information that are classified as containing confidential information owned by the state”, as this enactment contradicts the Law on Access in both letter and intent. In particular, the abovementioned Resolution entitles the bodies of state authority and local self-government to classify any official document as “For Official Use Only” as they deem appropriate, but the Law on Access, in its turn, firstly, establishes that it is access to information that is restricted, not access to the document; secondly, only two categories of information may be classified as confidential and only in exceptional instances, after a three-part test is applied (and namely, in compliance with the Law, restricted access to information is enforced when the following three conditions are met: 1) exclusively in the best interests of the national security, territorial integrity or public order in order to prevent disturbances or crime, to protect public health, to protect reputation or rights of other people, to prevent disclosure of information obtained confidentially, or to uphold the authority and impartiality of justice; 2) disclosure of information can cause significant harm to these interests; 3) harm from disclosure of such information outweighs public interest in obtaining it — part 2 Article 6 of the Law on Access); thirdly, based on the systemic interpretation of Article 6, Article 9 of the Law, decisions of bodies of executive power and local self-government cannot be classified as confidential information: for instance, resolutions and orders of the Cabinet of Ministers of Ukraine, orders of the Tax Administration of Ukraine and so on cannot be labeled as “For Official Use Only”. Besides, the above-mentioned provisions of the Law created an obligation for Ministries, other central bodies of executive power, the Council of Ministers of the Autonomous Republic of Crimea, oblast state administrations, Kyiv and Sevastopol city state administrations to revise the documents that in compliance with the Resolution of the Cabinet of Ministers of Ukraine as of November 27, 1998, No. 1893 were classified as containing confidential information owned by the state and are labeled as “For Official Use Only”. Such revision should have resulted in one of the three following outcomes:

1. To remove the label “For Official Use Only” from the documents that in compliance with the Resolution of the Cabinet of Ministers of Ukraine as of November 27, 1998, No. 1893, were classified as containing confidential information owned by the state; and to label the information that, in compliance with part 2 Article 6, Article 9, can be classified as confidential, as “For Official Use Only”;

2. To classify the data contained in the document as confidential information:

2.1.     if this information was collected in the process of operational-investigative activities, counterintelligence activities, in the area of country defense, and was not classified as a state secret, а disclosure of this information can cause significant harm to the interests of national security, territorial integrity or public order; in order to prevent disturbances or crime, to protect public health, to protect reputation or rights of other people, to prevent disclosure of information obtained confidentially, or to uphold the authority and impartiality of justice; and harm from disclosure of such information outweighs public interest in obtaining it;

2.2.     if this is intradepartmental confidential correspondence, memorandum reports, recommendations, in case they are connected to development of the profile institution activity or performance of control and supervising functions by bodies of state authority, to the process of decision making and precede public discussion and/or adoption of decisions, and disclosure of this information can cause significant harm to interests of the national security, territorial integrity or public order; in order to prevent disturbances or crime, to protect public health, to protect reputation or rights of other people, to prevent disclosure of information obtained confidentially, or to uphold the authority and impartiality of justice; and harm from disclosure of such information outweighs public interest in obtaining it.

But instead of this, on September 7, 2011, the Cabinet of Ministers of Ukraine adopted the Resolution No. 938 “On making amendments to certain Resolutions of the Cabinet of Ministers of Ukraine in the issues of access to information”, according to which in the text of the Resolution No. 1893 the phrase “confidential information owned by the state” in all cases were replaced by the phrase “confidential information” in the corresponding cases. This step of the Cabinet of Ministers of Ukraine is a direct and outrageous violation of the Law on Access, as the term “confidential information owned by the state”, as defined in the Law of Ukraine “On information” of 1992, and, correspondingly, in the Resolution of the Cabinet of Ministers of Ukraine No. 1893, and the term “confidential information” as understood in the Law on Access, are different categories, first of all, not in letter, but in their legal nature. In particular, as we have already emphasized, while the Resolution of the Cabinet of Ministers of Ukraine No. 1893 entitles bodies of state authority and local self-government to label any official document as “For Official Use Only” as they deem necessary, the Law on Access, in its turn, firstly, establishes that it is access to information that is restricted, not access to the document; secondly, only two categories of information can be labeled as confidential information (Article 9) and even then it can be done only in exceptional cases, after the three-part test is applied. Moreover, based on the interpretation of Article 9 of the Law of Ukraine, except for information collected in the process of operational-investigative activities, counterintelligence activity, in the area of the country defense, public information cannot be labeled as confidential if this information is contained in a decision of the corresponding agency, including acts of separate action (decree, order, decision, regulation, resolution and so on). In other words, decisions of bodies of executive power and local self-government cannot be labeled as confidential information.

So, the year 2011 became a year of broad statements and declarations made by the authorities and of no actual efforts to improve the condition of how the right of access to information is ensured in Ukraine. In particular, when on May 9, 2011, the Law on Access became effective it meant enabling its major assumption that all information on activity of the authorities is publicly available, and the authorities are entitled to restrict the access to information on their activity only in exceptional cases[5], that is, the concept of maximum informational transparency of the authorities. But to implement this paradigm it is necessary that provisions of the Law of Ukraine “On access to public information” are reflected in other legislative acts in this sphere; in particular, after its adoption those legal provisions that contradict the concept of maximal transparency of the authorities had to be either annulled or harmonized with the Law. In other words, after the first step, that is the adoption of the Law on Access, the second and the third steps were to be made, namely, harmonization with the Law on Access of other laws in this area, and repeal of the subordinate regulatory acts that contradict the provisions of the Law on Access, in particular, stipulate additional restrictions for enforcement of the right of access to information.

But this did not happen, and instead of actions aimed at implementation of the principles of the Law on Access, the bodies of state authority and local self-government started to take steps that utterly violate of the Law. In particular:

1. they adopt lists of information that is not public, what contradicts and violates the Law on Access (for instance, the executive committee of Lviv City Council by its decision No. 737 approved a list of data that contain no features of public information[6]);

2. they classify as confidential information:

1) public information that is directly prohibited to be classified as restricted access information, in particular, as confidential information (according to part 5 Article 6 of the Law on Access and part 4 Article 21 of the Law of Ukraine “On Information”);

2) public information without compliance with the requirements of part 2 Article 6 and Article 9 of the Law of Ukraine “On access to public information”;

3) bodies of executive power continue the practice of issuing Regulations, Resolutions, Decrees and other decisions with the label “For Official Use Only”. But one of the major ideas of the Law on Access was to overcome the excessive secretiveness of the state, in particular, through establishing the strict limitations as to whether public information can be classified as restricted access information. Nevertheless, the Cabinet of Ministers of Ukraine still adopts Resolutions with the label “For Official Use Only”. And this is a direct violation of Article 6 of the Law on Access. According to the above mentioned article, “it is information the access is restricted to, not the document. If a document contains restricted access information, information, to which access is not restricted, has to be provided for familiarization”. Still, even after the Law on Access became effective, it is not uncommon when access to a document is denied exactly on the grounds that this document contains restricted access information. One of the last examples is the refusal of the State Department of Affairs to provide justification why the helicopter for Victor Yanukovych was leased without a tender. As the head of the State Department of Affairs Andriy Kravets answered in his official reply to the request from Ukrayinska Pravda, “The requested document contains data concerning organization and procurement of airborne transportation of persons, concerning whom state protection is conducted, as well as concerning flight safety”;

4. The provision of part 5 Article 6 of the Law on Access is being outrageously violated; in compliance with it, “access cannot be restricted to information concerning disposal of the budgetary funds, possession, use or disposal of state and municipal property, including copies of corresponding documents, conditions of obtaining of these funds or property, surnames, names, patronymics of individuals and names of legal entities that obtained these funds or property”. But, with no regard to this article, as well as the provision of the Law that all administrators of information, no matter what regulatory document they act upon, when resolving the issues concerning access to information should be governed by this Law, that is, the provisions of the Law on Access are special related to other laws, the Cabinet of Ministers of Ukraine refused to provide information about the level of salaries of officials by alluding to the fact that this information is confidential. In the Apparatus of Verkhovna Rada of Ukraine, in their turn, refused to disclose the names of the people’s deputies who received the governmental housing during the last parliamentary cadence.

2. Right of access to information and judicial practice

Analysis of the judicial practice during 2011 showed the following tendencies:

1. The courts are reluctant to reverse decisions of the governmental agencies concerning legality of classifying information as restricted access information, in particular, the status of documents labeled “For Official Use Only”. These are, in particular, cases related to the demand to provide access for familiarization with General construction plans with the corresponding annexes and graphic materials. That is, what happened was a blunt disregard for Article 6 of the Law on Access as such. A rather illustrative example of this was the ruling of Moskovsky rayon court of the city of Kharkiv to dismiss the claim, which, among other things, demanded to oblige the urban development and architecture department of the executive committee of Kharkiv city council to provide a copy of the complete General construction plan of the city of Kharkiv till the year of 2026 with the corresponding annexes and graphic materials, approved by the decision of the session of Kharkiv city council as of June 23, 2004, No. 89/04. The court used the defendant’s argument that the textual and graphic materials requested are labeled “For Official Use Only” and this means that familiarization and work with the documents bearing this label is not prohibited, it is to be conducted following the corresponding procedure. In other words, the court failed to check the legality of the label “For Official Use Only” and when deciding on the ruling, instead of applying the direct norm of the Law Article 5, Article 9 of the Law on Access, it applied a series of subordinate regulatory acts, in particular, the Resolution of the Cabinet of Ministers of Ukraine No. 1893, what contradicts the Law of Ukraine “On access to public information”.

2. Ignoring provision of part 2 of Article 22 of the Law on Access, according to which “the response of the information administrator that the requester can obtain information from open sources, or the response irrelevant to the request is considered an unjustified refusal to provide information”.

3. Ignoring provision of part 5 of Article 6 of the Law on Access, according to which “access cannot be restricted to information concerning disposal of the budgetary funds, possession, use or disposal of state and municipal property, including copies of corresponding documents, conditions of obtaining of these funds or property, surnames, names, patronymics of individuals and names of legal entities that obtained these funds or property. Observance of the requirements stipulated in part 2 of this Article, this provision does not cover cases when disclosure of or providing such information can cause harm to interests of the national security, defense, investigation or prevention of a crime.” For instance, the court rejected the claim to Vyshgorod rayon state administration of Kyiv oblast that requested to hold illegal the defendant’s refusal to provide information concerning the contract of sale and purchase of a land lot between Vyshgorod rayon state administration and V.F.Yanukovych concluded in 2010, as the court concluded, this information is classified as restricted access information, and, namely, information about a person. In such a way, the court ignored the provision of part 5 Article 6 of the Law on Access, which prohibits to classify the corresponding information as a restricted access information, that is, it is that case of exception when information about a person cannot be considered restricted access information. According to Article 32 of the Constitution of Ukraine, such cases can be stipulated in the Law.

4. Court decisions to reject claims ignore provisions of the Law on Access, and instead they rely on other provisions stipulated in the Ukrainian legislation, which indirectly contradict the Law on Access.

3. Recommendations

1. To develop an educational course and to conduct training for judges in all 27 regions of Ukraine, officials and functionaries, who are responsible for providing information in the bodies of state authority and local self-government, concerning new laws on information, international standards of access to information and practices of their application in Ukraine.

2. To amend the Laws “On information”, “On access to public information” and “On protection of personal data” to harmonize them with the international treaties on human rights, to which Ukraine is a member state.

3. To adopt the Law on access of public to sessions of the subjects of powers of authority and their bodies.

4. In order to implement Article 11, “Protection of a person that publishes information” of the Law on Access, to make amendments in the Criminal Code of Ukraine. In particular, to provide an article concerning relief of disclosers (that is, persons mentioned in Article 11 of the Law on Access) from criminal responsibility for disclosure of restricted access information. Besides, to adopt the Law on protection of disclosers in order to implement provisions of Article 11 of the Law on Access.

5. To repeal the Resolution of the Cabinet of Ministers of Ukraine as of November 27, 1998, No. 1893 “On approval of the Instruction on procedure of recording, storage and use of documents, cases, editions and other material media of information that are classified as containing confidential information”.

6. To disclose all legislative acts labeled as “Do Not Publish” and to analyze documents labeled “For Official Use Only” to check for the grounds of their labeling as confidential.

7. To revise the norms of Article 15 of the Law of Ukraine “On State Secret” and stipulate classifying only the fragments that contain state secret, not documents at large.

8. To analyze “Corpus of data that constitute state secret” from the point of view of justification of information’s sensitivity, using both the three-part test to find, whether there is “harm” or influence on “public interests”, and Article 6 of the Law “On access to public information”.

9. To repeal the Decree of the President of Ukraine No. 493 as of May 21, 1998, “On amendments to some decrees of the President of Ukraine in the issues of state registration of regulatory acts.”

10. To establish an open register of all regulatory acts of the prosecutor’s office and an open database on enactments concerning rights and obligations of citizens.

11. To create conditions for members of territorial communities to familiarize themselves with all decisions of the bodies of local self-government (in the most efficient way depending on the circumstances). Where possible, to create websites of bodies of local self-government with obligatory placing of the complete register and texts of all adopted decisions.

12. To secure publishing and open and unrestricted access to all decisions of local administrations (at the level of oblasts and the cities of Kyiv and Sevastopol).

13. Representatives of mass media, advocacy and other non-governmental organizations should research effectiveness of active and passive access to information at the central and local levels and more actively appeal by judicial procedure against officials’ inaction as to providing information and their refusals to provide information.

14. Representatives of advocacy and other non-governmental organizations should appeal by judicial procedure against “lists of data that contain no features of public information”, and lists of “confidential information of bodies of local self-government”.

[1]  Prepared by Oksana Nesterenko, Kharkiv Human Rights Protection Group expert on issues of freedom of opinion and expression.

[2]  Law on access to public information is fulfilled on 50% — expert. //http://nbnews.com.ua/news/27350

[3]  Ibid.

[4]  See research of the East-Ukrainian Center of Public Initiatives “Through access to general construction plans to corruption-free urban development”// http://totalaction.org.ua/node/924

[5]  Which requires that data, access to which is restricted, have to be clear, to described specifically and comply with the three-part test. And namely: information has to concern a legitimate goal stipulated by the law; disclosure of information to public may cause significant harm to the named legitimate goal; the harm that can be caused to the mentioned goal has to outweigh the public interest in obtaining this information (currently the only draft law that follows this standard is the draft law “On Access To Public Information”, submitted to Verkhovna Rada by People’s Deputy A.V. Shevchenko).

[6]  http://www8.city-adm.lviv.ua/Pool/Info/doclmr_1.NSF/(SearchForWeb)/D6398E15C8405162C22578E800507382?OpenDocument.