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“Full Access”: What Does the Draft Law No 0947 Change?

On 27 March 2014, after almost three years of preparation andconsideration of the draft law No 0947 “On Amendments to CertainLegislative Acts of Ukraine in relation to the adoption of the Law of Ukraine”On Information” (new version) and the Law of Ukraine “On Accessto Public Information”, finally, the Parliament of Ukraine voted for the adoptionof this law as a whole. Now we are awaiting its signingby the President shortly and its entry into force.

Given that it alters a large range of legislative provisions, it isimportant to analyse in detail what novelties it provides for and why it was sonecessary to adopt it.

 

Freedom of Expression and Mass Media

One very important provision of the new law, yet not directly related tothe access to information, is the abolition of a rule under the Civil Code,which established a presumption of unreliability of negative information abouta person. That rule obliged a defendant in libel cases to prove the veracity ofnegative information. Obviously, this provision was clearly contrary to the recognizedinternational standards on freedom of speech and did not comply with the new versionof the Law “On Information”.

Another provision concerns the improvement of grounds for the exemption ofthe print media and news agencies from liability for spreading falseinformation. Specifically, some purely technical changes were made as to theexemption from liability for the information contained in a response to the enquiry,submitted under the Law of Ukraine “On Access to Public Information”,or in a response to the request/application. Worth noting is more expandedexemption from liability for quoting of the public statements or сommunicationsby the representatives of governing authorities, by individualsand legal entities. Previously, this exemption applied only to the officialstatements by public officials, organisations and civil society organisations.In addition, the list of legal grounds for such an exemption becomes non-exhaustive.

The changes also touch upon recognition of the status of journalist.Previously, this status had to be confirmed exclusively by an editorialcertificate or other document, issued to a person by the editorial body ofprint media. With the entry into force of this law, professional affiliation ofa journalist might be confirmed by a document, issued by a professionalassociation of journalists.

 

Access to Public Information vs. Personal DataProtection

Current wording of the Law of Ukraine “OnPersonal Data Protection”, the Article 5, automatically refers allpersonal data to the restricted information (apart from non-personified data).The exception is the personal data of an individual who intends to occupy oroccupies an elective publicoffice or a position of the first category publicservant (except for some data directly provided for by law), and in cases wherethere is a direct prohibition by law to refer personal data to the restricted information.Such an approach seemed essentially contrary to the principle of maximum opennessof public information and was often used by the administrators of relevantpublic information and by courts for refusing to provide information.

So, first of all, amendments to the Law “On the PersonalData Protection” abolish a presumption of confidentiality for personaldata and stipulate that personal data maybe attributed to the confidential information about a person only by law or bythat person. Importantly, the law expressly provides that shall not berestricted in access the following information:

– personal data relating to the exercise by a personholding the position that implies performingfunctions of the state or the local self-governance, official or public servicepowers;

– personal data as specified in the declaration ofassets, income, expenses and financial obligations filled in a form and mannerestablished by the Law of Ukraine “On Principles of Prevention andCombating Corruption ” (except for the listed data); and

– information on receiving by an individual of anyform of budget funds, of state or municipal property.

The revised provisions provide for an opportunity toestablish other legal prohibitions on referring of personal data to the restrictedinformation.

 

Access toPublic Information at the Local Level

The Law of Ukraine «On Access to Public Information», the Article 15,establishes a general list of information that shall be published by the information providers on their official websites or in themedia. However, without direct inclusion of similar provisions into the lawsgoverning the status and powers of the public authorities, these requirements havenot been fulfilled in practice, especially at the local level.

In this regard, the new lawamends the law “On Local Self-Governance in Ukraine” and “On theVerkhovna Rada of the Autonomous Republic of Crimea” and establishes anobligation for the local authorities and parliament ARC to disclose:

×       minutesof meetings of the local councils;

×       actsof the local self-governance bodies/ of the Verkhovna Rada of Crimea;

×       draftacts of the local self-governance bodies/ of the Verkhovna Rada of Crimea (in case of emergencies and otherurgent cases are made public immediately after their preparation);

×       conclusions,proposals, minutes of the standing committees` meetings that work at the local councils.

Similar requirements apply tothe publication of information on the activity of local administrations and theCouncil of Ministers of Crimea, in particular, the publication of regulationsand individual acts, as well as draft legal acts subject to public discussion.

 

Access tothe Verkhovna Rada and the Local Councils` Meetings

Important provisions of thenew law is to ensure the right of every individual to be present at meetings ofpublic authorities what meets the requirements of transparency enshrined in theConstitution of Ukraine.

Open shall be the sessions ofthe Verkhovna Rada of Ukraine, local councils, the Verkhovna Rada of Crimea.The procedure for access to public meetings is determined by the resolution ofVerkhovna Rada or by the relevant councils. Additionally, as regardsaccreditation of journalists at the Parliament, it is now impossible towithdraw the accreditation of a journalist for a “bad behaviour.”

 

Access tothe Master Plans of Towns andOther Localities

For now, it appearschallenging to get access to a city master plan or detailed plan of theterritory, because most of them are groundlessly concealed under the stamp”For official use only”.  That is why the new law explicitlysets out that the materials of the general plan of a town, as well as a detailedplan of the territory cannot contain confidential information and be limited inaccess.

Additionally, the overallavailability of these materials should be ensured by:

–     its placing on the website of a local authority,

–     publication in the local periodical print media,

–     placement in a public place on the premises of the agency, and

–     provision upon requests for access to public information.

 

Combating Corruption

The proposed changes involvea whole range of mechanisms for the public control over observance of the anti-corruptionlegislation.

Notably, several importantamendments have been made on disclosure of information from the officials’declarationsof assets. First, the law requires disclosing this information on the official website ofrelevant authorities (and only in case if there is no website – thisinformation should appear in the official newspapers of the relevant publicauthorities and local bodies). Second, publication of this information on theofficial website should remain available online for at least one year.

In addition, any person will be entitled to receive upon request the information about the status of assets ofthe pension insurance fund, and information from theRegister of State Property Objects.

Whereas, media representatives may now attend meetingsof tender committees (in charge of public procurement) – not only at the bidopening procedure, but also at other stages of competitive tendering.

The law also provides a clear prohibition to restrictaccess to certain information included in the Unified State Register of Perpetratorsof Corruption Offenses, including:

1) the name, surname, patronymic of a person;

2) placeof employment, position at the time of commission of a corruption offense;

3)composition of a corruption offense;

4) typeof punishment (penalty);

5) theway of committing of the offense;

6) typeof disciplinary sanction. 

 

Access to Archival, Statistical Information and State Secret

The law provides for a greater access to archival and statisticalinformation, with clear rules on the state secret in a specialised law.

Namely, it is set that one cannot be denied, upon request, in receivingof the non-personified statistical information, obtained in the course ofstatistical surveys conducted at the expense of the state budget or a customerunder the contract.Such statisticalinformation may not be classified as confidential and shall be provided free ofcharge, except for reimbursement of actual costs for copying and printingaccording to the Law of Ukraine “On Access to Public Information”.

As the law also establishes, access to the documents of the NationalArchival Fund containing state secrets or other confidential information may berestricted only in accordance with the Law of Ukraine ” On Access toPublic Information”. Whereas previously, the Law “On NationalArchival Fund and Archival Institutions” provided that such information islimited in access until the cancellation of a decision on referring suchinformation to the state or other secrets.

Equally important are the complemented exceptions for disclosure ofarchival documents containing information about a person without his/herconsent – namely, if there is a public interest in its disclosure.

Some changes concern the state secrets: any classification ofinformation is carried out only in terms of data that constitutes a state secret,and access should be granted to documents in the part of non-classifiedinformation contained. Thus, the establishment and prolongation of the term forsecrecy shall be made only in line with the three-step test.

 

Administrative Responsibility

Amendments to the Law provide for a fine ranging from425 to 850 USD, on the top of existing administrative responsibility for theungrounded refusal to disclose information, untimely or incomplete provision ofinformation, or provision of false information, namely:

–  forfailureto provide information, whichis subject to mandatory publication;

–  for ungrounded referral of the informationto the restricted one, when there was an information inquiry;and

–  for unlawful refusal to accept andconsider an application, and other violations of the law on citizens’ appeals.

 

For limiting access to the information or referring itto the restricted information, if this is expressly prohibited by law, a fineof 1020-1360 UAH is foreseen.

As regards the classified information, the law providesfor the administrative responsibility for disclosure of the information gatheredin the process of operational-investigative activity, counterintelligence activity and in the defence sphere.

 

Control

The law lays down that the parliamentary control overthe observance of the right to access to public information is performed byUkraine`s Ombudsman. Still, no additional powers in this regard have beenprovided to this body. Therefore, the matter of effective and independent bodyremains on the table.

 

«For Official Use Only» 

Quite important transitional provisions are enshrinedin the Law No 0947 – they should have been enacted earlier, after the adoptionof the Law “On Access to Public Information” itself. They concern therestrictive stamp “For Official Use Only” or other information-limitingclassifications that appeared on the documents before the entry into force ofthe Law of Ukraine “On Access to Public Information”.

In particular, all these restrictive stamps arerepealed, except for a secrecy grading. Along with this, a transitional periodof one year is established for revising the stamps applied and information-limitingclassifications under the amended laws. This means that many documents, stamped”For Official Use Only”, might be disclosed or provided upon requestafter such a revision.

 

 

To summarise, the Law No 0947 does not change theorder of access to public information, the essence of that right or the ways toimplement it. It rather strengthens the obligation of the public authorities toprovide relevant information; specifies in more detail those principles andmechanisms that were established by the information legislation from the verybeginning; and widely aligns the terminology used in this regulatory sphere.

Without amending and aligning the rules of various information-relatedlaws, a full realization of the right to access to public information often appeareddifficult in practice. Therefore, the adoption of this law is an important stepto further improvement of the Ukrainian legislation information and its approximationto the European standards.

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