On 3 February 2011 Viktor Yanukovych signed the Laws on Information and on Access to Information passed by parliament on 13 January. The final versions of the texts have not yet been made public – at present we have only the texts that were considered at the parliamentary session.

 

The laws will come into effect from three months after their publication. What should we expect and will the conditions for exercising the right to information really improve?  We will examine the laws passed with regard, firstly, to removal of the significant flaws in the Law on Information, and secondly, with how they meet international standards.  For convenience, we will refer to them as the Law on Information and the Law on Access.

 

First a few comments on terminology. The legislators have finally understood that “information about an individual” and “personal data” are the same thing. This would seem a minor point, yet it is extremely important since it will make it possible to link norms of domestic and international legislation, rulings of domestic and international courts. Yet another such highly significant “trifle” is the appearance among types of information as per content (Article 10 of the Law on Information) of information about the state of the environment (environmental information).  Once again, the merging of the terms “information about the state of the environment” and “environmental information” will make it possible to consider that the constitutional norm on openness of information about the state of the environment and the norms of the Law on the Protection of the Environment which uses the term “environmental information”, are talking about one and the same thing.

 

The definition of environmental information in Article 16 entirely complies with the Aarhus Convention: this information cannot be classified as information on restricted access, aside from information about the location of military objects. One can only welcome this norm.

 

A negative feature of the laws is the narrowing of the circle of those seeking information – they are called enquirers, while a positive feature is that the circle of those whom the law obliges to provide information, those  administrating information, has been broadened.

 

According to Article 12 of the Law on Access, those seeking information are individuals, legal entities or civic associations without the status of a legal entity. The list does not include media outlets (including foreign outlets) since such outlets may not have legal entity status and therefore do not find a place in the list of those seeking information. We would also note that the list of those seeking information (Article 4 of the Law on Information) does not include civic associations without legal entity status and this discrepancy between the two laws needs to be removed. The list also leaves out State players as a whole, other States and international organizations which are engaged in information relations according to the current Law on Information. For example, the UN, Council of Europe, EU and OSCE according to the current law can request information in Ukraine, whereas according to the new laws, they cannot.

 

Holders of information, pursuant to Article 13 of the Law on Access, are those in power, legal entities financed from State or local budgets or the budget of the Autonomous Republic of the Crimea (regarding information about the use of public funding); individuals or bodies delegated the power of figures of authority according to the law or an agreement, including provision of educational, health, social or other State services (with respect of information linked with the fulfilment of their duties); economic subjects occupying a dominant position on the market or with special or exceptional rights, or natural monopolies (regarding information about conditions for delivery of goods or services, and prices for these).

 

In comparison with the current Law on Information, where only bodies of legislative, court or executive power can be the recipients of information requests, this is potentially a significant improvement in access to information. According to Yelizaveta Alekseyeva from the leading environmental organization Environment, People, Law, “with the entry into force of this law material assessing impact on the environment, reports itemizing emissions of pollutants, the results of monitoring of impact on the environment and any other environmental information produced by economic subjects will become public information and therefore open to the public. From the point of view of ensuring access to environmental information, these laws are a huge step forward”.

 

However the formulation of the right to information and its restrictions (Articles 5 and 6 of the Law on Information and Article 6 of the Law on Access) do not meet international standards, in particular, Article 10 of the European Convention.  Article 10 § 1 states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

 

Nowhere in the new laws do we find mention of the right to information being exercised regardless of frontiers although in the age of the Internet this is axiomatic. Then, according to Article 5 § 2 of the Law on Information “The exercise of the right to information must not infringe the civil, political, economic, social, spiritual, environmental or other rights, freedoms and legitimate interests of other citizens, the rights and interests of legal entities”. This norm is impossible to implement: the exercise of the right to information, as a rule, infringes somebody’s interests. This norm effectively jeopardizes the exercising of the right to information and makes It possible for officials, when the wish arises, to refuse to meet the majority of information requests.

 

Article 10 § 2 of the European Convention states that: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. 

 

Compare this with Article 6 § 2 of the Law on Information which firstly restricts the very right to information, and not its exercise, and secondly, contains no presumption that the restrictions must be those needed in a democratic society. The question arises: who prevented the legislators from simply repeating in the law the provisions of Article 10 of the Convention, as was done in draft law № 4485.

 

The norms of Article 10 needed to be fixed in the new version of the Law on Information since the judgments of the European Court are a source of law in the domestic legal system in accordance with Article 17 of the Law on Implementation of the Judgments and Application of the Practice of the European Court of Human Rights.

 

An important issue is whether the three-tier test is used. This helps to balance the damage from the divulgence of publicly important information which serves a legitimate purpose and the damage from keeping this information secret. In Article 6 § 2 of the Law on Access, this test is set out quite correctly. However in the Law on Information (Articles 29 and 30 § 3) this is not the case. If one takes Article 30 § 3 literally, then any publicly needed information with restricted access can be divulged regardless of the damage which it will cause.

 

There is another discrepancy between the two new laws. Furthermore the definition of publicly needed information in Article 29 § 2 is too narrow. It states: “An object of public interest shall be deemed information which indicates a danger to Ukraine’s sovereignty and territorial integrity; ensures the exercise of constitutional rights, freedoms and duties; indicates the possibility of human rights abuse, of the public’s being misled; which indicates harmful environmental and other adverse consequences from the actions (inaction) of individuals or legal entities etc”. 

 

Compare this with the definition in  draft law № 4485: “Information of public interest is information which indicates a danger to Ukraine’s sovereignty and territorial integrity; infringement of the rights of territorial communities and the property rights of the Ukrainian people; makes it possible to make a well-founded political choice; guarantees being informed about events and facts which directly impact upon the state and nature of human life; ensures the exercise of constitutional rights, fundamental freedoms and duties; prevents violations; the public’s being misled, as well as harmful environmental and other adverse consequences from the actions (inaction) of economic subjects, etc”.

 

We would note that the definition of publicly needed information in the Law on Access was taken out.

Confidential, secret and official information are classified as information on restricted access. An undoubtedly positive feature of the new laws is the removal of the ambiguous construction “confidential information which is owned by the State” of the current Law on Information and its replacement by the category of official information with indication of what particular types of information can belong to this category (Article 9 § 1 of the Law on Access). Now documents containing official information are stamped “For official use only” [DSK] and access to the lists of items of information constituting official information may not be restricted (Article 9 § 3).  This means that the authorities which concealed information using the stamp “For official use only” must divulge and publish these lists (and this is the Cabinet of Ministers  and other bodies (see http://www.khpg.org/en/index.php?id=1246097691 for more information).  The norms of the Law on Access regarding official information will begin working when a new law on this is passed. It would be desirable to draw this up and pass it as soon as possible. For the moment all authorities, bodies of local self-government , ministries, etc should review previously drawn up lists of confidential information which is owned by the State, in accordance with Article 9 of the Law on Access, and reveal that part of the documents stamped “For official use only”. The situation where the number of items in lists drawn up by regional State administrations has ranged from 18 (the Ivano-Frankivsk and Kyiv Regional State Administrations) to 136 (Kirovohrad RSA) is absolutely unacceptable.

 

Unfortunately the norm was removed from the final version of the Law on Access which had stated that official information contained in documents of those in authority and constituting internal official correspondence, reporting notes, recommendations were open from the day the decision was passed where they were linked with the drawing up of directions of activities of the institution, the process of decision-making and preceding public discussion and / or passing; or if the information was gathered in the course of the exercising of the authorities’ controlling or supervisory functions. According to Oksana Nesterenko, specialist on information law for KHPG, this norm would have had a revolutionary effect on information openness in Ukraine. It would have meant that almost all official information after the passing of a decision was on open access to the public.

Article 6 § 7 of the Law on Access states that it is the information, not the document, that is on restricted access. If a document contains information on restricted access, then the information where access is not restricted should be provided. This well-known principle of freedom of information should have been implemented in Ukraine a long time ago. However unclear formulations in the Law could render this norm meaningless. For example, Article 9 § 3 of the Law envisages that documents containing information which constitutes official information, are stamped DSK (“For official use only”), and that already means that it is impossible to provide even part of the information from this document. What prevented the legislators from adding the proviso that access to documents with restricted access is provided in accordance with Article 6 § 2 of this Law?

 

Furthermore, in order to apply Article 6 § 7 of the Law on Access, they needed in the Final Provisions to revoke amendments to the Law on the Press passed by the Verkhovna Rada on 11 May 2004. Article 2 § 1 of that Law, “Freedom of activities of the printed press” declares “the right of each citizen to freely and independently look for, receive, record, retain, use and circulate any information on open access with the help of the printed press”.  The fundamental right of a journalist – to information – was similarly reduced with the journalist now having “the right to freely receive, use, circulate (publish) and retain information on open access” (Article 26 § 2.1 of the Law on the Press). These restrictions – the possibility of working only with information which is on open access (literally: open according to the regime of access) which were added in May 2004 should have been revoked. Unfortunately, however, there is no such norm in the Final Provisions of the Law on Access.  

 

In Article 3 of the Law on Information, one of the main directions of State information policy is called “ensuring Ukraine’s information security”. However the term information security is not defined, although the basic information law should contain a definition of this important concept which is used in the Constitution. It is not clear why the legislators did not use the well-worded norm from draft law № 4485:

1. Information activities of subjects of information relations in Ukraine take place within a regime of information security;

 

2. Ukraine’s information security consists of ensuring (guaranteeing) freedom access by all to open information and of protecting and guarding State secrets and others envisaged by law;

3. Ensuring Ukraine’s information security is one of the most important functions of the State and the matter of the entire Ukrainian people.

 

We would also note that the norm in the current Law on Information banning censorship, both direct and indirect, is seriously spoiled in the new version of the Law. For example, Article 24 § 2 of the Law in the new version declares that the prohibition of censorship “does not cover cases where the prior agreeing of information is carried out on the basis of the law”.  At present there are no such laws, yet this time bomb could become a problem in the future. Especially if we consider the adoption as a base on 22 December 2010 of a draft Concept of State Information Policy” where one of the priority tasks is to “ensure Ukraine’s information sovereignty”  This concept does not have any legal sense, the relevant article was removed from the old version of the Law on Information, yet it has again become relevant.

 

The Law on Access thoroughly sets out the duties of those holding information regarding its publication, determining the structural sections or those responsible for information requests and the procedure for reviewing these requests. Only 5 working days is given for a response, and not a month as previously. Furthermore, the Law establishes types of information which must be provided even quicker, within 48 hours. This is information needed to protect the life or freedom of a person; regarding the state of the environment, the quality of food products and everyday items; accidents, catastrophes, dangerous natural phenomena and other emergencies which have taken place or could happen and which endanger people’s safety.

 

However according to Article 20 § 4 of the Law on Access, the time period for review of a request can be extended to 20 working days if the request pertains to a large amount of information or needs to be looked for in a considerable amount of data. Knowing the kind of responses received to requests at present, one can confidently predict that responses will at best come within 20 working days, and not five.

The well-known principle of freedom of information regarding protection of whistleblowers has not been implemented in the best way. Article 11 of the Law on Access states that “Public officials and civil servants shall not face legal liability, regardless of infringement of their duties, for divulging information about offences or information which pertains to a serious risk to citizens’ health or safety, to the environment, if the individuals were prompted by good intentions and had well-founded belief that the information was accurate, and also contains proof of an offence or concerns a significant threat to citizens’ health or safety or to the environment”.  This effectively means that the burden of proving the offence or significant threat to citizens’ health or safety or to the environment falls on the public official who revealed the information.

It would have been better to use the analogous norm in draft law № 4485 which, unlike Article 11, implements this principle: “Public officials and civil servants and those in authority who, infringing their duty regarding non-divulgence of information on restricted access, reveal facts of unlawful behaviour, corrupt activities committed by public officials or civil servants, State bodies, bodies of the Autonomous Republic or other bodies of local self-government,  shall be free of legal liability if they were prompted by good intentions and were convinced that the disclosure of such information was in accord with the public interest”.

 that the information was accurate, and also contains proof of an offence or concerns a significant threat to citizens’ health or safety or to the environment”

 

Unfortunately, Articles were removed from the Law on Access which specified the procedure for appealing to the Human Rights Ombudsperson against unlawful refusals to provide information.  This is claimed to have been done at the request of the Ombudsperson herself. Thus, unfortunately, parliamentary control over exercise of the right to information implemented in all European laws on freedom of information is not in the Ukrainian law.

 

The definition of information about an individual and regulation of access to such information needs to be reviewed together with the Law on Personal Data Protection passed by parliament on 1 June 2010 which came into effect on 1 January 2011.

 

None of the three laws provides even a minimum list of items constituting personal data. In Article15 § 2 of the Law on Information, the constitutional norm is given on the prohibition of gathering, keeping, using and circulation of confidential information about a person without their consent, yet such confidential information about a person is seen as being information about their nationality, education, family position, religious beliefs, state of health, as well as address, date and place of birth.

 

In the Law on Personal Data Protection the list of personal data also appears in a prohibiting context. Article 7 § 1 prohibits the processing of personal data about racial or ethnic origin; political, religious or worldview believes; membership in political parties and professional unions, as well as data concerning health or sexual life. Both these lists are clearly incomplete and do not coincide. Furthermore, address, data and place of birth cannot be treated as confidential information, with this running counter to generally accepted practice.

 

Unfortunately the legislators did not make use of the definition of personal data in draft law № 4485 which does comply with European standards. There personal data is divided into data of a general nature ( (first name, patronymic, last name, data and place of birth, citizenship, place of residence) and sensitive personal data (information about state of health, medical history, diagnosis, etc, ethnic origin, attitude to religion, identification codes or numbers, personal symbols, signature, fingerprints, voice print, photographs, data about pay or other legal income, about bank deposits and accounts, property, tax status, credit history, information about any criminal record or other forms of criminal, administrative or disciplinary liability,  exam results, or results of professional or other tests, etc). Laws on information, access and personal data protection should prohibit collecting, retaining, using and circulating specifically sensitive personal data without the person’s consent.

 

The lack of differentiation between personal data of a general nature and that which is sensitive leads to anecdotal consequences. For example, the circulation of any personal data, including even the surname and first name of person, can only be carried out with their written consent. Article 6 § 9 of the Law on Personal Data Protection states that “the use of personal data for historical, statistical and scientific purposes can only be made in depersonalized form”. This means that one cannot give any personal data even first and last name in textbooks or any scientific works!

 

None of the three laws contains the concept of “public official” where the limits, in accordance with the position of the European Court of Human Rights, are broader than for the average person.  One can, therefore, circulate more personal information about such a person without their consent if this is of public importance.  The Law on Access makes an exception to the overall ban on circulation of personal data without the person’s consent only with regard to people standing for or occupying electoral office in bodies of power, or holding the post of civil servant, official of a body of local self-government of the first or second category (Article 6 § 6).  This exception moreover only concerns data on income declarations for the people and members of their families (the previous version had had, among other things, biographical details, but this was removed).

 

Article 5 § 4 of the Law on Personal Data Protection does not include as information on restricted access any personal data about a person standing for or holding an electoral position (in representative bodies) or first category public officials. These exceptions clearly do not coincide, and both are considerably narrower than the concept of “public official”. The Law on Personal Data Protection in general does not allow for the possibility of circulating personal data where there is a public need, and in this clashes with the Laws on Information and on Access.

 

There are other discrepancies as well between the Law on Access and Law on Personal Data Protection. Article 6 § 5 of the Law on Access does not allow restriction of “access to information about the use of public funding, the use or distribution of State or communal problem, including to copies of the relevant documents, the conditions for receiving this funding or property, the first and last names of individuals and names of legal entities which received that funding or property.”

 

According to the Law on Personal Data Protection, generally speaking access is not allowed to the given individuals on conditions for their receiving funding and property without their consent (Article 6 § 6; Article 11 § 1; Article 14 § 1).

 

In order to remove this clash, the legislators should have added the relevant provisos to the Law on Access which was reviewed later than the Law on Personal Data Protection.

 

In conclusion, change is needed to all three laws – on information, access to information and on personal data protection, in order to agree them among themselves and bring them into line with international human rights agreements to which Ukraine is a signatory. The new laws will work if the public and journalists are active in looking for and circulating information.

 

[1] We would add at least a note that in listing in Article 10 the types of information, the legislators once again forgot to mention archival information.