In May 2011, the Parliament of Ukraine adopted the law “On access to public information” which was immediately hailed as a great democratic advance (something so rare in modern Ukraine). According to first world rating of FOI laws that law got very high evaluation (9 place in the world). The law was widely advertised; several NGOs started public campaigns to encourage citizens to use this law; journalists started using the law routinely.
The law focused civic attention on the problems with access to information and its importance for the defense of democracy, constitutional rights and freedoms. The law encouraged many NGOs to concentrate their efforts on getting information about government activities, thus ensuring its transparency, accountability and responsibility.
However, only 3% of all citizens filed requests for information in the last 4 months (according to polls by Democratic Initiatives and Rozumkov center).
Our organization maintains a portal, “Right to Know” http://stop-x-files-ua.org , where practically all available materials about freedom of information and the practice of implementation of informational laws in Ukraine are accumulated. Our lawyers, including one co-author of the law “On access to public information”, work with problems of its implementation on a daily basis. The analysis of the portal’s publications and legal experience with the law “On access to public information” show that, in fact, no serious changes in government transparency has occurred.
Instead of one basic legislative act (the old law “On information”) now there are three laws: “On information”, “On access to public information”, and “On personal data protection”. There were no simultaneous amendments in all information related laws and as a result there are conflicts between the laws.
Most legislative acts adopted by central and local governments in order to implement the law “On access to public information”; themselves violate that law and restrict the right to access information about government activities, which was to be guaranteed by that law. See examples below.
So what are the major problems in the implementation of the law “On access to public information” (hereafter – new law)?
Socially important information is not defined
One serious problem of the new law is that the term “socially important information” is mentioned there several times but not defined. The draft law had this term defined in its first article, however during the draft revision members of Parliament from the Party of Regions insisted that this term be excluded. Instead a renewed version of the law “On information” acquired the definition of socially important information as one of social interest where the citizens’ right to know this information prevails over potential damage due to its distribution. However this law provides only a vague idea of who decides and how, whether the information is of social interest, giving this right to the information provider or to the courts but with no real content guidelines.
Legislators did not implement the imperative from the European Convention on Human Rights in the new law, that says that “to receive and impart information … as are prescribed by law and are necessary in a democratic society”. The result of not implementing this imperative is shown below.
Creating registries of non-public information
Both central and local governments started to adopt “registries of non-public information” and “registers of official information” that restrict public access to information of government agencies. The biggest known register of “official information” is in the east-Ukrainian town Stakhanov. It consists of 85 items. (Google translation gives good idea of the document, which unfortunately is not unique; such registries are adopted all over the country). The biggest known register of “non-public information” was issued by Lviv city council.
However the new law defines the term “public information” as “information that was acquired or created in the process of the execution of the legally defined duties by government agencies, or which is owned by government agencies”. Therefore the term “public information” must refer to all information without exception that is available in government agencies, and the registries directly contradict the new law.
Government continues practice of issuing documents marked “for internal use”
One of main ideas behind the new law was to overcome the excessive secrecy of the state, in particularly by setting up severe restrictions for making public information classified. However, in practice, the Cabinet of Ministers of Ukraine still creates resolutions marked “for official use”. The titles of such documents are still not published. This practice directly violates articles 6 and 9 of the new law. This year we detected at least 41 such resolutions by central government agencies.
The rule to restrict access to information and not to a document does not work
According to article 6 of the new law “limited access applies to information and not to the document”. If a document contains the information with restricted access then the part of the information that is not restricted should be available to the public. However there are many cases where information is not provided on the pretext that the document contains restricted information. The President’s administration, the state management agency and the management of Parliament were denying the right to information on this pretext. One of latest examples is the refusal of the state management agency to provide justification of a lease of a helicopter for the president without tender procedures. In refusing they mentioned classified flight security plans.
Information about state budget and property not provided
The norm of the new law that states that “access to information about the use of budget funds, state and communal property, including access to copies of corresponding documents, conditions of the receipt of these funds or property, names of physical persons and legal entities that received these funds or property cannot be limited” is routinely violated. For example the Cabinet of Ministers of Ukraine refused to provide the information about the salaries of its employees stating it’s confidential. And the management of Parliament refused to disclose the names of members of Parliament who acquired apartments from the state, as well as data about MP’s staff assistants. Their refusal was motivated by internal regulations that have lower legal powers than the new law.
Sites of governmental agencies do not comply with new law
Article 15 of the new law defines a rather extensive list of information that the government agency should publish on its website. However the farther one is from the capital, Kyiv, the less information is published on the sites of local governments. In the Luhansk region, for example, most legislative acts are not published at all. However even the National Bank’s website has no mandatory info published and we are forced to demand for it to be revealed. The Ministry of Infrastructure’s site had a state telecom company listed which had changed its afilliation half a year ago. The site of the agency where the company belongs now, does not list it at all. Thus applying to the company’s superior with complaints and questions using open access is simply not possible – a citizen will not find who to appeal to. (We learned about this concern’s real subordination personally from the vice-premier, as finding and examining official resolutions about changes of a concern’s subordination is a hard task because of different wording, changes of the names of agencies, etc. This is a case when even Google does not help).
Local governments ignore requests for information
We accumulated information about cases when the local governments simply ignore valid requests for information. Several citizens already went to the court with such cases, however we do not know of any victory in court yet. One of the authors of this article also sued a local government for not providing public information.
There are cases of written refusals to provide public information on absolutely illegal grounds. For example, in Kremenchuk, the city council responded to a request for information like this: “Your civic organization is not in our register which makes us doubt the legality of your request”.
The most efficient way to cope with the practice of non-compliance with the new law, appear to be appeals against such illegal acts to administrative courts. Additional leverage that could influence the practical implementation of the law “On access to public information” could be open appeals of civic organizations to the central government and an overall activation of effort by citizens, the mass media and NGOs in order to enforce the government’s transparency.
Viktor Garbar, Natalka Zubar, Oksana Nesterenko, doctor of law, Olexander Severyn, doctor of law
Civic Information and Methodology Center “Vsesvit”