Establishing Rules on Processing Official Information (UA0035)

Ensuring citizens’ unhindered access to public information by means of: preparing and submitting to the Cabinet of Ministers of Ukraine in due course a draft resolution on approval of the procedure for recording, storing and using documents and other physical information media containing official information collected during operational and detective, counterintelligence activities, in the field of national defence of the country Expected result: a relevant resolution adopted by the Cabinet of Ministers of Ukraine Lead institution: State Archive Service Supporting institution(s): Ministry of Justice, Ministry of Internal Affairs, Ministry of Defence, Security Service, Administration of the State Service for Special Communications and Information Protection, State Committee on TV and Radio Broadcasting, Ministry of Finance, Ministry of Economic Development, Service of Foreign Intelligence, unspecified NGOs and international organisations Start date: Not specified End date: 31 January 2015

5.1. Establishing rules on processing official information

Commitment Text: 5.1. Ensuring citizens’ unhindered access to public information by means of: preparing and submitting to the Cabinet of Ministers of Ukraine in due course a draft resolution on approval of the procedure for recording, storing and using documents and other physical information media containing official information collected during operational and detective, counterintelligence activities, in the field of national defence of the country.

Expected result: a relevant resolution adopted by the Cabinet of Ministers of Ukraine.

Responsible institution(s): State Archive Service

Supporting institutions(s): Ministry of Justice, Ministry of Internal Affairs, Ministry of Defence, Security Service, Administration of the State Service for Special Communications and Information Protection, State Committee on TV and Radio Broadcasting, Ministry of Finance, Ministry of Economic Development, Service of Foreign Intelligence, unspecified NGOs and international organisations.

Start date: Not specified                                                                     End date: 31 January 2015

Commitment aim

This commitment attempted to improve public access to government-held information, to establish a more transparent process for handling of official information, and to reduce unjustified denials of information requests. This was to be done by improving transparency of the regulations, and transposing the progressive provisions of the Access to Public Information Law to the bylaws.

Status

Midterm: Substantial

The 2011 Law of Ukraine on Access to Public Information revised the legal framework concerning access to information held by public authorities. In particular, the law introduced a new classification of information with restricted access, including “official information.” In March 2014, Parliament instructed the government to adopt regulations referred to in the OGP commitment by mid-October 2014.^{[Note 10: See text of the law at: http://bit.ly/1Vrnx6S.]} The State Archive Service prepared several versions of the text and published them for public consultations, as well as discussed them with the ombudsman office. Both civil society and the ombudsman office criticised the draft texts, as they did not fully align with the Law on Access to Public Information. As a result, the government failed to adopt the regulations.^{[Note 11: Independent Reporting Mechanism (IRM) Progress Report 2014-15: Ukraine, 31-32. ]}

End of term: Complete

After rejecting several versions of the draft regulations, the government finally adopted the document on 19 October 2016.^{[Note 12: See text of the regulations at: http://bit.ly/2ily5va. ]} The document was approved in the form of a model procedure for recording, storing, and using documents and other physical information media containing official information. This makes it recommendatory by nature. Such an approach reflects the 2011 Law on Information that removed authorisation for the government to pass binding regulations in this regard.^{[Note 13: Independent Reporting Mechanism (IRM) Progress Report 2014-15: Ukraine, 31. ]} The final text of the regulations addressed the criticism of the previous drafts raised by civil society and the ombudsman, by incorporating the harm and public interest tests^{[Note 14: Harm and public interest tests are used to establish whether disclosure of the requested information will harm any protected interest and, if so, whether such harm outweighs the public interest in the disclosure.]} for situations in which access to information is restricted.

Did it open government?

Access to information: Major

Government regulation (“Instructions”) on official information is an important, albeit technical, document that regulates, in detail, how public agencies deal with “official information” (a type of information with restricted access). In the Ukrainian context, public agencies closely follow such regulations, paying close attention to changes. It was essential, therefore, that the regulations were in line with the law, and reflected the progressive provisions of the 2011 Law on Access to Public Information.

After several failed attempts, the final regulations did incorporate important provisions of the 2011 Law on Access to Public Information. In particular, it included the rules on denying or restricting access to requested information; the law requires public authorities to apply public interest and harm tests. The authority that holds information is required to justify any access restriction with legitimate reasons, including the substantial harm that may be caused by disclosure. It also must prove that such harm outweighs the public interest in disclosure. This requirement was embedded in the rules on the  treatment of official information.

However, unlike the previous legislation, the revised 2011 Law on Information and Law on Access to Public Information did not authorise the government to issue mandatory rules for processing official information. Therefore, the final “government instructions” document must be considered a non-binding, recommendatory set of rules. This reduced its importance to some extent, but not significantly, as public authorities’ de facto practice is to follow such recommendations and implement them in their own regulations. It is important that the government model rules are enforced through the internal regulations of the relevant authorities. Therefore, the “government instructions” enhance the level of public access to official government-held information. The rules lay the groundwork for improved implementation of the 2011 Law on Access to Public Information. It does so by defining the rules for managing public information and, more importantly, requiring public and harm tests before denying a public information request.

Carried forward?

The commitment was completed, and was not carried over to the new action plan.