III. Right to free access to public information
One may emphasize three elements in the issue of protection of the right to access public information which complicates or even makes it impossible to execute this right, thus, to control state authorities; these are disadvantages of the legislation, practice of passive access to public information as well as active access via requests to the information provider as far as available public information.
1. Disadvantages of legislation
Basically, as soon as the Law of Ukraine “On Access to Public Information” (hereinafter — Law) came into force on May 9th, 2011 an issue on its coordination with a great number of other regulatory documents was raised. It was caused by the fact that an issue of delivery of information or access to information available to public bodies and local authorities relating to the areas which were governed by other laws and codes, and in 2011 as of adoption of the Law “On Access to Public Information” the legislation relating to this area was not harmonized.
As long ago as 2012, the draft registered under No. 10455 was prepared and submitted to the Verkhovna Rada of Ukraine, which was re-registered later and submitted to the new Verkhovna Rada of Ukraine under the number 0947.
In March 2014, over 50 acts of law were amended in order to bring it into line with the Law “On Access to Public Information” (Law No. 1170-VII as of 27.03.2014).
These amendments were adopted to resolve a great number of issues relating to the application of the Law, for example, determination of the number of subjects who are providers of public information by making amendments to special laws, adoption of the norm on publication of drafts of the local authorities within less than 20 working days, as an exceptional cases, approximation of definitions with the provisions of the Law “On protection of personal data” etc.
At the same time, the practice of application of this law proved the insufficiency of such changes, and the necessity to draft a new version of the Law “On Access to Public Information” became evident as there still were some unresolved issues which were difficult or even impossible to resolve by introducing amendments to other laws, and which require modification of the Law itself. These are issues that require the correction of some defects in the Law itself.
Such defects are certain unspecific definitions (a term “public information”, “manager of information” and a number of subjects covered with this term, definition “insider information”), definition of the submission procedure; Paragraph 13 of Art. 19 states that “an inquiry may be submitted orally, in writing or another manner (by mail, fax, e-mail) at the discretion of the demanding person. But at the same time, sending a request by mail and fax is a written form of submission that requires an obligatory signature on an inquiry document is also a defect which led to program legal proceedings and a refusal to grant access to the information stated in the Resolution of the Central Election Commission No. 23 as of February 7th, 2013 and requires respective correction(s).
One of the most difficult challenging issues for enforcement is the requirement stipulated in Paragraph 2 of Art. 6 of the Law “On Access to Public Information”, the so called “threefold test” that was transformed and taken from Article 10 of the European Convention on Human Rights as part of the preparation for adoption of the Law. According to the results of the training, workshops of officials of the public and local authorities held by the network of non-governmental organizations “For transparency of public authorities” in cooperation with the Kharkiv Human Rights Protection Group in 2014 this threefold test is not used and it is almost impossible to execute it for an ordinary clerk responsible for giving answers to request for public information.
As Paragraph 2 of Art. 10 of the European Convention on Human Rights is an instrument of judges of the European Court of Human Rights the threefold test stipulated in Paragraph 2 of Art. 6 of the Law “On Access of Public Information” is subject to judicial rather than bureaucratic discretion, thus, it may be used in courts, but not at the executive level which was confirmed by foreign experts who learned of the Ukrainian practice of this law’s application.
Creating an efficient institute to control the correct application of the provisions of this Law is of the most important issues ensuring the Law “On Access to Public Information”. In October of 2014, the Prosecutor General’s Office of Ukraine was deprived of the powers to control observance of the norms of the Law “On Access to Public Information”, thus, at this point of time there is no real effective control mechanism such as an institute of information commissioner with powers, professional qualifications, prestige and independence.
This is an urgent problem for modern Ukraine and there is a need to elaborate the changes to the legislation on access to public information to provide and enshrine in legislation such independent professional mechanism of law observance control.
2. Passive access to public information
In December of 2014, the Institute of Regional Press Development published a transparency rating of 55 web-sites of the central bodies of the executive powers (CBEP) pursuant to the results of the verification conducted by this institute in 2014. According to the methods used by the Institute of Regional Press Development for the web-sites of CBEP in 2011–2014 the general index of information transparency increased by 13.16 points and now amounts to 53.76%.
The studies of transparency of web-sites of the central bodies of the executive power by a network of non-governmental organizations “For transparency of the state bodies” in cooperation with the Kharkiv Human Rights Protection Group in 2014 also prove that a level of fullness is changing for the better. For example, at the beginning of 2014 an official web-site of the Kherson State Regional Administration had indexes of access to passive information at a level of 78%, when in January of 2015 it was about 95%.
This is a common trend for web-sites of other regions, namely, Kirovograd, Sumy, where, as the monitors of the network stated that by means of using the unified matrix of fullness all information that is to be available according to the requirements of Art. 15 of the Law of Ukraine “On Access to Public Information” is available on all web-sites, namely, the state bodies of the region of Sumy and Kirovograd.
But one cannot consider an issue of public information availability at the web-sites settled: an analysis of the contents and updating of information prove that the issue of passive access (essentially, via web-sites) remains a problem for a considerable number of state bodies.
The reasons for such difficulties with passive access are based on a lack of culture of working with information, necessary skills for working with the Internet, poor technical assistance and different (non-uniform) standards of working with Internet. The problem of improper fullness of information is especially evident while making an analysis of the web-sites of the district departments of the state bodies and local authorities in the regions.
According to the monitoring results, 14% of the authorities in the districts, namely in the region of Kherson, do not have their own web-site or a web-page on the web-site of the superior authority.
During the monitoring an important issue was found, which is the lack of a unified standard of the web-sites registration. Thus, for example, official web-sites of the state bodies of the region of Kherson are registered in different domain zones: .org, .com, org.ua, com.ua, in.ua, ks.ua, Kherson.ua. In practical terms it means that doubts in authenticity of the web-site of the respective state body may appear and, accordingly, in the information available on this web-site. For example, at some point the State Ecological Inspection in the region of Kherson had two web-sites at two different addresses. Accordingly, there is a need for a gradual transition of the web-sites of official state bodies to an “official” domain gov.ua.
The monitoring of passive access to information at the web-sites of the district state administration discovered an unsatisfactory level of quality of fullness of the web-sites with official information. After examining the contents of the web sites it became clear that, firstly, Part 2 of Art. 15 is systematically infringed, i. e. the date of updating is not indicated, and in some cases even the date of publication, or this date is reasonably doubted. Thus, at the web-site of the Holoprystanska District State Administration of the region of Kherson most of the information for 2014 (drafts of the resolutions, reports etc.) was dated by 2012.
One more important remark is that the texts of the resolutions of the management (the head) of a district state administration is published more or less regularly from the moment of enforcement of the Law on Access to Public Information, but all previous information for 2011 or 2012 is almost absent from the web-sites.
For example, in the region of Sumy 23 of 48 items of obligatory information to be posted on web-sites weren’t published on half or even more of the web-sites of District State Administrations. The most “problematic” in terms of availability of information are such items as draft resolutions to be discussed and contact addresses for communication and receipt of active information, including the e-mail address of the head of a body and his/her deputies.
3. Active access to public information
The request for public information and the efficiency of its response is an index of active access to information which is at the disposal of the managers. Requesting is the fastest and most convenient option for individuals who want to receive information, to achieve such a goal, however, practice shows that a rather large number of situations have become systemic when a requester is rejected in response to your request.
One of the most common reasons for refusal is reference to the fact that a document or the requested information contains personal data (respectively, confidential information). Provided that sometimes it is a reference to the Decision of the Constitutional Court in the case of the Zhashkiv District Council of the region of Cherkassy concerning the official interpretation of the provisions of Part 1 of Art. 32, Part 2 and 3 of Art. 34 of the Constitution of Ukraine.
Unfortunately, in practice, managers of information manipulate a reference to this decision of the Constitutional Court because of oblique language and definitions contained in the provisions of the Law “On Access to Public Information” regarding confidential information and opportunities to provide the information containing personal data.
Another specific group of issues owes to the fact that the “insider information” includes, among others, documents that define the term incorrectly. First of all, it deals with the documents “For Official Use Only”. In practice, these documents contain information that is similar to secret information, and such information is usually contained in other documents which are defined in Paragraphs 1 and 2 of Part 1 of Art. 9 of the Law. Thus, the definition of “insider information” is not clearly stated in Art. 9 of the law and is subject to adaptation and proper language. The information determined as “insider” requires a label (which, in practice, often is not respected) — Paragraph 2 of Art. 9 of the Law contains a requirement that “documents containing information that is “insider information” assigned a label “For Official Use Only”, but in practice this rule is not respected and therefore needs to be adjusted.
It is important to mention about the right to access public information in a judicial proceeding. By 2014 the good law practice concerning ensuring the right of access to information by courts, primarily by administrative courts, has not been fixed yet. According to the results of the work of the network of NGOs “For Transparency of Public Authorities” cooperation with lawyers of the Kharkiv Human Rights Protection Group in 2013–2014 courts, as a rule, did not provide the right of applicants for socially significant information, such particularly as information on tariffs for services for residential premises or copies of statements on resignation from People’s Deputies of Ukraine. This proves the need for proper responsibility of the judges for ensuring the needs of society in an open government and the right to public information.
1. Amend the Law “On Access to Public Information”, which eliminates disadvantages in the application of the law and provides for the establishment of an effective mechanism to monitor compliance with the regulations.
2. Ensure standard representation of public information on the web-sites of managers of public information (including navigation on the web-site) that will enable easy search and access to relevant documents.
3. Ensure transition of the web-sites of official state bodies to “official” domain gov.ua.
4. Update regularly and fully the information on the web-sites, timely publish draft resolutions to be discussed.
5. Provide clear language for the categories of “confidential” and “insider information” and provide clear mechanisms to overcome improper restrictions on access to such information.
6. Ensure proper training of judges and their approach corresponding to European standards to the right to access the information.
 Prepared by Olexandr Pavlichenko and Dementii Bilyi, KHPG.
 http://ekologia.ks.ua/ (available on December 21st, 2013) and http://ecoinspekcia.ks.ua/