Ukraine

International Focus

Ukraine adopted two laws on access to public information in January 2011.

The "Law on Access to Public Information," enshrines the citizen's right to obtain government data, to appeal if his or her request has not been satisfied, and also guarantees protection for whistleblowers, provided they acted in good faith [1].

According to Article 19, a human rights organisation monitoring freedom of expression and information, the law contains several progressive provisions "including a broad definition of public information, and a legal responsibility of holders of information who fail to publish" [2].

Bill no. 7321, which passed through Parliament simultaneously, modifies the previous 1992 "Law on  Information." The modification "specifies the legal status of mass media and guarantees protection of journalists' professional rights," according to the Kyiv Media Law Institute [3]. It also sets the bases for the government's information policy [4].

Before the new laws were passed, Ukraine already had regulations governing access to information. The 1996 Constitution does not grant a general right of access to public information, but it specifies the right to collect and disseminate information. It also guarantees the right of every citizen to examine any state-held personal records about him or herself as well as any information regarding the environment, food and other consumer goods [5].

Background and history

Mikhail Gorbachev's glasnost policy ushered in an era of greater transparency and freedom to collect government information. Soviet reformers in the latter half of the 1980s saw access to information as a conduit for citizens to participate in political decision-making [6].

Ukraine gained its independence in August 1991 and its "Law on Information" was enacted in 1992. But while the breakup of the Soviet Union brought with it promise of transparency and democracy, Ukraine and the new independent nations that arose began a slow trek back into darkness.

Under second president Leonid Kuchma, Ukraine became a semi-presidential republic and adopted the Constitution of 1996, which contained provisions for attaining information. Kuchma was often criticized for being corrupt, discouraging free speech and access to government data [5]. The Organization for Security and Co-operation in Europe reviewed the "Law on Information" in 2001 and determined it was "confusing," had overly broad exemptions, and functioned poorly [7].

Moreover, a tendency prevailed in the Kuchma administration whereby decisions and decrees were routinely stamped as "Not to be Printed." Two years following the Orange Revolution of 2004 - in which rigged presidential elections brought a peaceful movement for democracy to the streets - a list of decrees concealed under stamps between 2001 and 2005, were released by the government. They showed a significant decrease in 'stamping' after the Orange Revolution [8].

In 2005, the "Law on Information" was amended to remove a provision that prohibited the collection of state secrets or confidential information [5].

The draft law "On Access to Public Information" was registered in the Ukrainian parliament in July 2008 and was approved with an overwhelming majority during the first reading of the bill in February 2009. Consensus broke during the second reading when only one-third of MPs supported it. As advocates lobbied MPs and the media stepped up the pressure, the law was finally approved in January 2011 [9].

The legislation

The law defines public information as that which is "possessed by government agencies and other public information providers."

This includes information about organizational structure, functions, budget, salaries, agendas of public meetings, reports and contact information for public authorities. Providers are obliged to keep an updated register of all the information they hold and submit an annual report of compliance to the Human Rights Commissioner.

Information holders are legally obliged to provide non-exempt information, without asking the requester's motive. Officials and employees who 'whiltleblow' - release information in defiance of the non-disclosure policy to "uncover facts of unlawful actions and corruption-related activities of higher officials of national and local government agencies" - are protected, provided their intentions are good.

The time frame for processing requests is tight at only five working days, but if it requires a large amount of work, the information provider has the right to extend the term to 20 working days after notifying the requester. In cases of emergencies - like natural disasters - a response must be given within 48 hours.

If the request is refused or delayed without proper reason, Article 24 of the law allows the requester to appeal to "the head of the providing entity or a higher authority, if applicable, the Human Rights Commissioner, or a court."

Requests can be made orally, by telephone, in the form of a letter, a fax, or as an e-mail, and are free of charge unless they require photocopying or printing more than 50 pages.

The law also enshrines a person's right to obtain data about him or herself and demand that false information be corrected.

Exemptions and limitations

Confidential, secret and information for official use (information regarding internal operation and internal official correspondence) is granted limited access within the law.

Data that may harm "national security, territorial integrity and civil order" will not be released. State, professional and banking secrets are also held back.

If a requested document contains information with limited and unlimited access, the information with unlimited access must be considered for release [1].

Recent developments

It's still early to gauge the law's practical effectiveness, but the MP who initiated the legislation said that, by May, the implementation of the law had already hit some roadblocks.

The subordinate legislation that the Law needs to function had not been drawn up, said Andriy Shevchenko, Head of the Parliamentary Committee on Freedom of Speech, and "those responsible for implementing the law have not been appointed in all bodies of power" [10].

Freedom House, a pro-democracy watchdog based in Washington DC, said that journalism and political activism had been stifled during local elections in October 2010.

"The security services have assumed a more prominent role in society and are responsible for applying unwarranted pressure against civil society activists (foreign and domestic) and journalists" [11].

 In July 2011, the government of Victor Yanukovych established the Working Group on Journalists' Rights Protection "in response to the increasing interest of the international community on the status of the Ukrainian press freedom."

The government believes journalists are benefiting from the law. A press release states that following the implementation of the 2011 law on access, "journalists from nation-wide and regional publications have already written a number of articles based on the newly released information related to public funds expenditures, public property use, as well as revenues and privileges of the key public servants" [12].

Bibliography

[1] English translation of the Ukranian law "On Access to Public Information." http://www.article19.org/resources.php/resource/1196/en/ukraine:-the-law-on-access-to-public-information

[2] Press Release,"Ukraine: Access to Information Law Adopted," Article 19, January 14, 2011, http://www.article19.org/resources.php/resource/1693/en/ukraine:-access-to-information-law-adopted

[3] Shevchenko, Taras, "Ukraine Law on Access to Public Information Adopted," Kyiv Media Law Institute, January 2011, http://merlin.obs.coe.int/iris/2011/3/article30.en.html

[4] "Ukraine Parliament Adopts Access to Information Law," FreedomInfo.org, January 14, 2011, http://www.freedominfo.org/2011/01/ukraine-parliament-adopts-access-to-information-law/

[5] Banisar, David, "Global Survey: Freedom of Information and Access to Government Records Around the World," July 2006, www.freedominfo.org/documents/global_survey2006.pdf

[6] Ferguson, Denise, "From Communist Control to Glasnost and Back?: Media Freedom and Control in the Former Soviet Union." Public Relations Review, Vol. 24, No. 2. Summer 1998, 165-182.

[7] Press Release, "Ukraine: Parliament must Adopt a Law on Access to Information Without Delay," November 4, 2010, http://right2info.org/news/ukraine-parliament-must-adopt-law-on-access-to-public-information-without-delay

[8] Press Release, "Secret Material Which the Regime Concealed Under Stamps 'Not to be Printed' and 'Not to be Published'," Kharkiv Human Rights Protection Group, April 4, 2006, http://www.khpg.org/en.php?id=1145710178

[9] Memorandum, "NGOs push for breakthrough legislation," UNITER Project, Pact Inc., 17 January 2011, www.freedominfo.org/documents/ukraine2011pactsummary.pdf

[10] "Implementation of Access to public information effectively stalled," Ukranian Helsinki Human Rights Union, May 10, 2011, http://www.helsinki.org.ua/en.php?id=1305011300

[11] Kramer, David J.; Wilson, Damon; Nurick, Robert, "Mr. President, time to stop digging yourself into a hole," Kyiv Post, July 14, 2011, http://www.kyivpost.com/news/opinion/op_ed/detail/108655/#ixzz1Tc0Wlt3x

[12] PRNewswire, "Ukraine Establishes a Watchdog on Journalists' Rights Protection," July 12, 2011, http://www.prnewswire.com/news-releases/ukraine-establishes-a-watchdog-on-journalists-rights-protection-125398133.html