This is a juridical analysis of the law in draft of Ukraine "On amending some legislative instruments of Ukraine (to provide for an access to public information"), which was registered under the number  № 7321 and submitted by the MPs Olena Bondarenko, Volodymyr Landik and Yuriy Stets. They claimed this bill would be an alternative to another bill on access to public information which had been worked out by Andriy Shevchenko. That's why a part of the provisions was presented in form of comparison.

On November 2, the MPs from the Party of Regions Olena Bondarenko and Volodymyr Landik claimed they submitted their own bill on access to information to the parliament. That's why, as she explained, the Party of Regions would not endorse the bill worked out by the civil society experts. The civil society bill was already submitted for consideration by the MP Andriy Shevchenko and already adopted in its first reading. 

 Term for reply to letter of inquiry

At the sitting of the Committee on freedom of speech and information the MP Olena Bondarenko presented the bill of hers and gave reasons why she had refused to support the Shevchenko's draft law in the second reading. Also she said that the bill of hers included a lot of democratic provisions. Among other things she pointed out at a provision of a 5-days term for reply to the letter of inquiry. It was found out Ms Bondarenko did not read the Shevchenko's bill carefully. This bill (the article 45) said: "Term to examine the letter of 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 provision said "Total term for examination and reply to the letter of inquiry cannot exceed twenty working days".   

20 working days is almost the same, as 30 calendar days, in conformity to the standing "Law "On information". But the head of state Victor Yanukovych said that term should be shortened. Also it is hard to understand what the logic was when they set up a term for examination of inquiry letters and another term to reply to it. The bill of Andriy Shevchenko cut out this provision. According to the law in force which had been adopted in 1992, there are ten days to examine the inquiry and 30 days to give access to documents to the requester. The person who sent the inquiry letter was supposed to be invited to come to the office of public servant and to read the document by himself. That was why they fixed 10 days necessarily to notify the requester and 30 days to complete all procedures. There is no sense to keep that provision now. But it seems, the authors of that legislative initiative would not be experts in the  field.

Three-component text

Bondarenko's bill has no substantial guarantees of access to information, well-known as three-component test. The point is that even if a requested document is classified, the functionary has to assess it according three criteria: 1) it was legitimate to classify the requested document or not; 2) could it cause any substantial damage to this interest;  3) what is more important, the damage caused by making the document public or the interest the society has to get this information? If at least one answer to these questions is negative, the document should be produced for reply to the interested party. The same scheme is applied in the court to assess was denial to accord an access to the information lawful or not. The law in vigour does not 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 Bondarenko said the terminology was strong point of her bill. To what extent this is not true, we could see if we analyze, for example, how the authors defined unreliable information. "Unreliable information is information which does not represent properly state, properties, qualities, signs of the subjects and objects (material objects, processes, technologies, resources and so on) because of some or other reasons."  This definition would be not bad for a library research paper on mass media. But first of all, the legal term of "unreliable information" is used in the court of law while the journalists are sued for libel, for attempts against honour, dignity and reputation. So from the point of view of the Party of Regions if a journalist "misrepresents ... some qualities, signs of subjects", it means he spreads unreliable information. Actually, to describe some qualities, this is judgment of value which is not an offense.

Government bodies could cause damage to mass media once more

The public authorities and local government bodies are re-enabled to sue the press and citizens for information they spread, thanks to the 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 key achievements we obtained in 2003. According to the effective law, the government body could require from the press to refute some reports, but not money. This is a highly democratic provision, which we are proud of. It allows to criticize freely the government bodies, to spread reports on corruption. The authors of this bill took some positive provisions on the judgment of value, but they excluded restrictions regarding the government bodies. I don't guess they did it by chance.

Access mode

When copying a number of positive provisions regulating the procedure of access to information from the civil society's bill, submitted to the parliament by Andriy Shevchenko, the authors of Bondarenko's bill made a lot of blunders. For instance, they included a ground for denial to reply to the letter of inquiry because "no telephone number or electronic mail of requester". But even in this bill neither telephone number, nor e-mail are obligatory elements to be put in the inquiry letter (and should not be). And even worse, what is requested as to the content of the reply. In contrast to the law in force "On information", the Party of Regions decided to cancel responsibility of the authorities to justify its denial to reply to the letter of inquiry. Instead of it, the functionaries should only mention the reason of denial. And the reasons of denial are vague and could be loosely interpreted.

Illegitimate secrecy

Unfortunately, the Bondarenko's bill did not resolve the issue of classified information (stamped as "off record", "not to be published"). The provision regarding official secrecy is not detailed, as it should be, all gaps remained untouched, and this bill provides a lot of possibilities to bar access to a great number of documents. For instance, the bill said "the official secret means: any information which while being divulgated could infringe the constitutional rights and freedoms of physical and juridical persons;  any information regarding ... territorial integrity or public security aiming to prevent riots". It is hard to imagine, on my mind, what does it mean "information regarding territorial integrity". The working group which worked on the bill submitted by the MP Andriy Shevchenko detailed these provisions in order not to let abuse with "classified information".  

Beautiful abstractions

The most of the text is nothing, but beautiful abstractions. For instance, we could cite this one: "Information held by 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 words apart. According the bill, "procedure and terms to publish some information of power entity are defined by the agreement concluded between the respective power entity and the editorial office of printed press".  This provision did not solve existing problem which is due to the effective law. The wording is so vague that it is unclear whether the mass media could or not publish information without an agreement. Also this is unintelligible whether the agreement means that the government body has to pay to the mass media for coverage or the mass media has to pay to the government body for information they got. Usually, such ambiguity results in many 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 of property to information. Today the government often denies providing some information, referring to its right of property to this information.   . For instance, the Constitutional Court of Ukraine denied communicating the expert conclusions to the Media Law Institute, the conclusions made ready by some law schools at the request of the Constitutional Court. The Constitutional Court argued it was question of privacy of the law schools (which, actually, are the state schools). But the most important is the concept itself of "right of property to information". For ordinary citizens, it sounds OK, but juridically speaking this is different thing. If someone stole a fragment of text from someone, he broke copyright, not the right of property. Right of property to information applied in this case could lead to many abuses, as it happened with the Constitutional Court denial.  So right of property to information is applied neither in Europe, nor in the USA. This is a purely Ukrainian idea, which they wanted to apply as well in the law "On Personal Data Protection" and which was vetoed for several times.

Open information space being reduced

The Bondarenko's bill is considerably narrower than the Andriy Shevchenko's one.  The bill of Party of Regions indicated quarters whom one could address the letter of inquiry to. Based on the logic of the Shevchenko's bill, the Bondarenko's bill excluded: 1) persons who are funded from the state budget (for ex., state universities, state mass media); 2) persons with delegated authorities; and 3) regardless of patterns of ownership, all persons who have public information. Instead, the bill said the requester could be government body as well. This is wrong attitude. The government bodies' right to request some or other information is defined by other laws, which take into account specificities of these bodies.

Other forgotten guarantees of access

Several positive provisions worked out by experts during several years, were not applied in the bill of Olena Bondarenko. For instance, this bill did not protect the functionary who divulgated public information on corruption, abuses and so on. Don't you recall someone SBU general Kravchenko who had disclosed information about surveillance over the opposition leaders abroad, do you? Criminal proceeding was instituted against him for divulgation of the state secret. So the law mush provide for protection in such case. 

Another provision is not mentioned in the bill of Olena Bondarenko: number of pages to be sent free of charge to the requester. This guarantee is to prevent public servant from abusing, when they demand payment even for one page of document copy. The bill of Andriy Shevchenko said the functionary should send free of charge up to 50 pages of the requested text. But at the last sitting the ad hoc committee shortened this number to 10 pages.   

We could cite positive provisions in the Bondarenko's bill: provisions which obliged every government body to put information about them online on its official web sites. And to publish all the decisions they took. But the quantity of information was significantly shortened, there is no obligation to report on "budget funds, procedure and mechanism of expense". There is no clearly defined term during which they must make this report public. The bill from the civil society this term is defined: 5 days.    

Thus, the Bondarenko's bill is very weak. And in many issues this bill did not improve, but worsened the state of affairs, as to access to information and freedom of expression in general. But to give up the bill now, after it passed several rounds of discussions, underwent international examinations, passed the first reading in the parliament and to restart the whole work from the point zero, this has no sense. This bill of extremely poor quality means the Party of Regions disregards the issue of access to information. This is the way to temporize, while trying to give lame excuse to the electors, why the Party of Regions don't vote for the bill made ready by the civil society experts. 

If the Verkhovna Rada rejects the bill of Andriy Shevchenko, it will mean the Party of Region sabotaged the whole campaign for access to information. They did it deliberately and cynically. And it means the promises made by the head of state will remain empty words. 

By Taras Shevchenko, Director of the Media Law Institute

For Telekrytyka online edition

The bill of Bondarenko-Landik-Stets is commented by Evhen Zakharov, co-president of Kharkiv Human Rights Group: 

I've looked through the bill from Bondarenko-Landik-Stets. And I am agree with every remark Taras Shevchenko made. 

I could add as well, the bill wasn't in line with the principles set forth by the European Court in respect of the article 10: no demand regarding interference with the exercise of freedom of expression only if it is "necessarily in a democratic society", no specified notion who is public person, whose privacy must be much more restricted than other persons' privacy, no complete three-component test, it remained restrictive as it is in the standing law on information. And it's hard to apply it. Not once they mentioned exchange of information "regardless of the borders", as it was set forth in the article 10. On the contrary, they planted delayed-action mines in form of information security and credibility (impartiality of information). Actually, the authors have very poor view of relationship surrounding information. And this pragmatic bill did not take into account the modern media relationship in the web. They failed to bring it into line with the personal data protection. 

But they put several restrictions, as accreditation procedure. And under the new law it will be a problem for the foreign journalists. Defamation and insult (sic!) were detached from the judgment of value. And this means, next step will be to restore it in Criminal Code. 

Generally speaking, the bill is to satisfy the interests of the state and not of the individual. If to compare it to the principles of the legislation on freedom of information in the article 19, there is no conformity: no clear wording for the principle of largest divulgation, access restrictions as exclusions, no three-constituent test, vague procedure of receiving replies to the letters of inquiry, restricted number of entities to which the requester could address his letter of inquiry, poor protection of public servants who give information.

We could continue enumerating the gaps in the bill, but probably I should not.  The point is this is restoring the concept of the law on information, when we, civil society, give our support to another bill. We support idea when the concept of procedural and material part are split in two bills: on access to public information (voted for in its first reading) and the law on information (submitted to the parliament by the MP Andriy Shevchenko last year). I should remind that in 2004 the Kharkiv Human Right Group had submitted the single bill, which was afterwards discussed in detail and even was approved by the Ministry of the Interior and Secret Service of Ukraine (SBU), but the ministry of Justice did not submit it to the parliament. That bill was published in our two-volume edition "Freedom of information and privacy right".  Every minor issue was thoroughly worked out in that text. 

What to do next? I guess, Taras Shevchenko was right: to obtain second reading of that bill on access to public information. It would be useful to analyze the Bondarenko's bill as such which is not in conformity to modern views on freedom of information. I should remark, it could be improved, if its authors cede some of their principles. But they won't cede...   

By Taras Shevchenko, for Telekrytyka online edition 04-11-2010