By Taras Shevchenko, Director of Media LawInstitute
This is a juridical analysis of the law in draft ofUkraine “On amending some legislative instruments of Ukraine (to providefor an access to public information”), which was registered under thenumber № 7321 and submitted by the MPs Olena Bondarenko,Volodymyr Landik and Yuriy Stets. They claimed this bill would be analternative to another bill on access to public informationwhich had been worked out by Andriy Shevchenko. That’s why a part of theprovisions was presented in form of comparison.
On November 2, the MPs from the Party of Regions OlenaBondarenko and Volodymyr Landik claimed they submitted their own bill on accessto information to the parliament. That’s why, as she explained, the Party ofRegions would not endorse the bill worked out by the civil society experts. Thecivil society bill was already submitted for consideration by the MP AndriyShevchenko and already adopted in its first reading.
Term for reply to letter of inquiry
At the sitting of the Committee on freedom of speechand information the MP Olena Bondarenko presented the bill of hers and gavereasons why she had refused to support the Shevchenko’s draft law in the secondreading. Also she said that the bill of hers included a lot of democraticprovisions. Among other things she pointed out at a provision of a 5-days termfor reply to the letter of inquiry. It was found out Ms Bondarenko did not readthe bill, drafted for her carefully. This bill (the article 45) said: “Term to examine the letterof inquiry with a view to eventual reply to it should not exceed 5 working days“.But to examine the inquest is different from providing information. Another provisionsaid “Total term for examination and reply to the letter of inquirycannot exceed twenty working days“.
20 working days is almost the same, as 30 calendardays, in conformity to the standing “Law “On information”. Butthe head of state Victor Yanukovych said that term should be shortened. Also itis hard to understand what the logic was when they set up a term forexamination of inquiry letters and another term to reply to it. The bill ofAndriy Shevchenko cut out this provision. According to the law in force whichhad been adopted in 1992, there are ten days to examine the inquiry and 30 daysto give access to documents to the requester. The person who sent the inquiryletter was supposed to be invited to come to the office of public servant andto read the document by himself. That was why they fixed 10 days necessarily tonotify the requester and 30 days to complete all procedures. There is no senseto keep that provision now. But it seems, the authors of that legislativeinitiative would not be experts in the field.
Bondarenko’s bill has no substantial guarantees ofaccess to information, well-known as three-component test. The point is thateven if a requested document is classified, the functionary has to assess it accordingthree criteria: 1) it was legitimate to classify the requested document or not;2) could it cause any substantial damage to this interest; 3) what ismore important, the damage caused by making the document public or the interestthe society has to get this information? If at least one answer to thesequestions is negative, the document should be produced for reply to theinterested party. The same scheme is applied in the court to assess was denialto accord an access to the information lawful or not. The law in vigour doesnot have such provision, but the bill of Andrity Shevchenko has.
Definition of unreliable information which threatens journalists
Also at the sitting of the committee Olena Bondarenkosaid the terminology was strong point of her bill. To what extent this is nottrue, we could see if we analyze, for example, how the authors definedunreliable information. “Unreliable information is information whichdoes not represent properly state, properties, qualities, signs of the subjectsand objects (material objects, processes, technologies, resources and so on)because of some or other reasons.” This definition would be notbad for a library research paper on mass media. But first of all, the legalterm of “unreliable information” is used in the court of law whilethe journalists are sued for libel, for attempts against honour, dignity andreputation. So from the point of view of the Party of Regions if a journalist”misrepresents … some qualities, signs of subjects”, it means he spreadsunreliable information. Actually, to describe some qualities, this is judgmentof value which is not an offense.
Government bodies could cause damage to mass media once more
The public authorities and local government bodies arere-enabled to sue the press and citizens for information they spread, thanks tothe bill of MP Olena Bondarenko! It means, the law “On information”,as it was set forth by the Party of Regions, has lost one of the keyachievements we obtained in 2003. According to the effective law, thegovernment body could require from the press to refute some reports, but notmoney. This is a highly democratic provision, which we are proud of. It allowsto criticize freely the government bodies, to spread reports on corruption. Theauthors of this bill took some positive provisions on the judgment of value,but they excluded restrictions regarding the government bodies. I don’t guessthey did it by chance.
When copying a number of positive provisionsregulating the procedure of access to information from the civil society’sbill, submitted to the parliament by Andriy Shevchenko, the authors ofBondarenko’s bill made a lot of blunders. For instance, they included a groundfor denial to reply to the letter of inquiry because “no telephonenumber or electronic mail of requester”. But even in this bill neithertelephone number, nor e-mail are obligatory elements to be put in the inquiryletter (and should not be). And even worse, what is requested as to the contentof the reply. In contrast to the law in force “On information”, theParty of Regions decided to cancel responsibility of the authorities to justifyits denial to reply to the letter of inquiry. Instead of it, the functionariesshould only mention the reason of denial. And the reasons of denial are vagueand could be loosely interpreted.
Unfortunately, the Bondarenko’s bill did not resolvethe issue of classified information (stamped as “off record”,”not to be published”). The provision regarding official secrecy isnot detailed, as it should be, all gaps remained untouched, and this billprovides a lot of possibilities to bar access to a great number of documents.For instance, the bill said “the official secret means: any informationwhich while being divulgated could infringe the constitutional rights andfreedoms of physical and juridical persons; any informationregarding … territorial integrity or public security aiming to preventriots”. It is hard to imagine, on my mind, what does it mean “informationregarding territorial integrity“. The working group which worked onthe bill submitted by the MP Andriy Shevchenko detailed these provisions inorder not to let abuse with “classified information”.
The most of the text is nothing, but beautifulabstractions. For instance, we could cite this one: “Information heldby any power entity is published in printed press”. It sounds well,but it has no lawful meaning. All information is published in printed press,isn’t it? What kind of information? When? Under what conditions?
Speaking of conditions, I would like to say some wordsapart. According the bill, “procedure and terms to publish someinformation of power entity are defined by the agreement concluded between therespective power entity and the editorial office of printedpress”. This provision did not solve existing problem whichis due to the effective law. The wording is so vague that it is unclear whetherthe mass media could or not publish information without an agreement. Also thisis unintelligible whether the agreement means that the government body has topay to the mass media for coverage or the mass media has to pay to thegovernment body for information they got. Usually, such ambiguity results inmany abuses, the functionaries abusively deny giving access to information,because of agreement.
Right of property to information
This bill left in force such a tool as the right ofproperty to information. Today the government often denies providing some information,referring to its right of property to this information. . Forinstance, the Constitutional Court of Ukraine denied communicating the expertconclusions to the Media Law Institute, the conclusions made ready by some lawschools at the request of the Constitutional Court. The Constitutional Courtargued it was question of privacy of the law schools (which, actually, are thestate schools). But the most important is the concept itself of “right ofproperty to information”. For ordinary citizens, it sounds OK, butjuridically speaking this is different thing. If someone stole a fragment oftext from someone, he broke copyright, not the right of property. Right ofproperty to information applied in this case could lead to many abuses, as ithappened with the Constitutional Court denial. So right of property toinformation is applied neither in Europe, nor in the USA. This is a purelyUkrainian idea, which they wanted to apply as well in the law “On PersonalData Protection” and which was vetoed for several times.
Open information space being reduced
The Bondarenko’s bill is considerably narrower thanthe Andriy Shevchenko’s one. The bill of Party of Regions indicatedquarters whom one could address the letter of inquiry to. Based on the logic ofthe Shevchenko’s bill, the Bondarenko’s bill excluded: 1) persons who arefunded from the state budget (for ex., state universities, state massmedia); 2) persons with delegated authorities; and 3) regardless ofpatterns of ownership, all persons who have public information. Instead, thebill said the requester could be government body as well. This is wrongattitude. The government bodies’ right to request some or other information isdefined by other laws, which take into account specificities of these bodies.
Other forgotten guarantees of access
Several positive provisions worked out by expertsduring several years, were not applied in the bill of Olena Bondarenko. Forinstance, this bill did not protect the functionary who divulgated publicinformation on corruption, abuses and so on. Don’t you recall someone SBUgeneral Kravchenko who had disclosed information about surveillance over theopposition leaders abroad, do you? Criminal proceeding was instituted againsthim for divulgation of the state secret. So the law mush provide for protectionin such case.
Another provision is not mentioned in the bill ofOlena Bondarenko: number of pages to be sent free of charge to the requester.This guarantee is to prevent public servant from abusing, when they demandpayment even for one page of document copy. The bill of Andriy Shevchenko saidthe functionary should send free of charge up to 50 pages of the requestedtext. But at the last sitting the ad hoc committee shortened this number to 10pages.
We could cite positive provisions in the Bondarenko’sbill: provisions which obliged every government body to put information aboutthem online on its official web sites. And to publish all the decisions theytook. But the quantity of information was significantly shortened, there is noobligation to report on “budget funds, procedure and mechanism ofexpense“. There is no clearly defined term during which they must makethis report public. The bill from the civil society this term is defined: 5days.
Thus, the Bondarenko’s bill is very weak. And in manyissues this bill did not improve, but worsened the state of affairs, as toaccess to information and freedom of expression in general. But to give up thebill now, after it passed several rounds of discussions, underwentinternational examinations, passed the first reading in the parliament and torestart the whole work from the point zero, this has no sense. This bill ofextremely poor quality means the Party of Regions disregards the issue ofaccess to information. This is the way to temporize, while trying to give lameexcuse to the electors, why the Party of Regions don’t vote for the bill madeready by the civil society experts.
If the Verkhovna Rada rejects the bill of AndriyShevchenko, it will mean the Party of Region sabotaged the whole campaign foraccess to information. They did it deliberately and cynically. And it means thepromises made by the head of state will remain empty words.