Under Article 34 of the Constitution of Ukraine, everyone has the right to freely collect, store, use, and disseminate information orally, in writing, or by any other means of their choosing.
A request for information is a request made by an individual to an information holder to provide public information in its possession.
The parties to information relations are:
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individuals;
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legal entities;
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citizens’ associations;
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public authorities.
The object of information relations is information.
Public Information
Public information is information recorded and documented by any means and on any medium that was obtained or created in the course of public authorities performing their duties, as provided for by applicable law, or which is in the possession of public authorities or other public information custodians as defined by the Law of Ukraine “On Access to Public Information.”
Public information with restricted access:
1) confidential information;
2) classified information;
3) official information.
Restrictions on the Provision of Information with Restricted Access
The exercise of the rights to freely collect, store, use, and disseminate information orally, in writing, or by other means may be restricted by law in the interests of:
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national security;
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territorial integrity;
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public order, for the purpose of preventing disturbances or crimes;
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public health;
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protecting the reputation or rights of others;
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to prevent the disclosure of information received in confidence;
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maintaining the authority and impartiality of the judiciary.
Access to Personal Information
Every person has the right:
1) to know, during the period when information is being collected but before it is used, what information about them is being collected and for what purpose, as well as how, by whom, and for what purpose it is used, transferred, or disseminated, except in cases established by law;
2) to access information about themselves that is being collected and stored;
3) to request the correction of inaccurate, incomplete, or outdated information about themselves, and the destruction of information about themselves that is collected, used, or stored in violation of the law;
4) to review, upon a court order, information about other individuals if necessary to exercise and protect their rights and legitimate interests;
5) to receive compensation for damages in the event that information about the individual is disclosed in violation of the requirements established by law.
Submitting Requests for Information
The requester has the right to submit a request for information to the information controller, regardless of whether the information concerns the requester personally or not, without having to explain the reason for the request.
A request for information may be individual or collective. Requests may be submitted orally, in writing, or in any other form (by mail, fax, telephone, or email) at the requester’s discretion.
A written request may be submitted in any format. To simplify the process of submitting written requests for information, a person may submit a request by filling out the appropriate information request forms.
A request for information must include:
1) the requester’s name (or entity name), mailing address or email address, as well as a contact number, if available;
2) a general description of the information or the type, title, details, or content of the document to which the request relates, if known to the requester;
3) a signature and date, provided the request is submitted in writing.
Timeframes for Providing Information
The information holder must respond to a request for information no later than five business days from the date of receipt of the request.
If the request for information concerns information necessary to protect a person’s life or liberty, regarding the state of the environment, the quality of food products and household goods, accidents, disasters, hazardous natural phenomena, and other emergencies that have occurred or may occur and threaten the safety of citizens, the response must be provided no later than 48 hours from the date of receipt of the request.
If the request concerns the provision of a large volume of information or requires searching through a significant amount of data, the information controller may extend the deadline for processing the request to 20 business days, provided that the extension is justified.
Fees for Providing Information
Information requested is provided free of charge.
If fulfilling the request for information requires making copies of documents exceeding 10 pages, the requester is required to reimburse the actual costs of copying and printing. When providing an individual with information about themselves or information of public interest, no fees for copying and printing are charged.
Oversight of Access to Public Information
Parliamentary oversight of compliance with the human right to access to information is exercised by the Human Rights Commissioner of the Verkhovna Rada of Ukraine, temporary investigative commissions of the Verkhovna Rada of Ukraine, and members of the Verkhovna Rada of Ukraine.
Public oversight of information holders’ provision of access to public information is exercised by members of local councils, civil society organizations, public councils, and individual citizens through the conduct of relevant public hearings, public expert reviews, and similar measures.
Appeals Regarding Access to Information
A refusal to grant an individual access to information about them, as well as the concealment, unlawful collection, use, storage, or dissemination of information, may be appealed.
Decisions, actions, or inaction by information holders may be appealed to the head of the information holder, a higher authority, or a court.
Administrative Liability for Violations of the Law on Access to Information
In the event of a violation of the right to information, an official may be subject to administrative liability as provided for in Article 212-3 of the Code of Ukraine on Administrative Offenses, “Violation of the Right to Information and the Right to Petition”:
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Failure to disclose information that is required to be disclosed under the laws of Ukraine “On Access to Public Information,” “On Environmental Impact Assessment,” “On the Principles of Monitoring, Reporting, and Verification of Greenhouse Gas Emissions,” “On Specifics of Access to Information in the Sectors of Electricity, Natural Gas, Heat Supply, Centralized Hot Water Supply, centralized drinking water supply and wastewater disposal,” “On Access to the Archives of the Repressive Bodies of the Communist Totalitarian Regime of 1917–1991,” and “On the Prevention of Corruption”—shall result in the imposition of a fine on officials ranging from twenty-five to fifty non-taxable minimum incomes.
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Violation of the Law of Ukraine “On Access to Public Information,” namely: unjustified classification of information as restricted, failure to respond to a request for information, failure to provide information, unlawful refusal to provide information, failure to provide information in a timely manner or in full, or the provision of inaccurate information—shall result in the imposition of a fine on officials ranging from twenty-five to fifty non-taxable minimum incomes.
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Violation of the requirements of the Law of Ukraine “On Access to the Archives of the Repressive Bodies of the Communist Totalitarian Regime of 1917–1991,” namely, the unjustified classification of information as restricted, failure to respond to a request for information, failure to provide information, unlawful refusal to provide information, incomplete provision of information, failure to notify of an extension of the deadline for considering a request, or postponement of consideration of a request, except in cases specified by this Law—shall result in the imposition of a fine on officials ranging from twenty-five to fifty non-taxable minimum incomes.
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Restricting access to information or classifying information as restricted, if expressly prohibited by law, shall result in the imposition of a fine on officials ranging from sixty to eighty non-taxable minimum incomes.
A repeat offense within one year of any of the violations provided for in Parts 1–8 of Article 212-3 of the Code of Administrative Offenses, for which the person has already been subject to an administrative penalty, - shall result in the imposition of a fine on officials ranging from sixty to eighty non-taxable minimum incomes or community service for a period of twenty to thirty hours.
The review of complaints regarding the aforementioned violations and the preparation of reports on administrative offenses are carried out by authorized officials of the Secretariat of the Ukrainian Parliament Commissioner for Human Rights or by representatives of the Ukrainian Parliament Commissioner for Human Rights (para. 8-1, part 1, Art. 255 of the Code of Ukraine on Administrative Offenses).
Supreme Court Decision (Recent Case Law)
Classifying information as restricted-access information is not an automatic ground for refusing to provide information
The Supreme Court noted that the provisions of Part 2 of Article 6 of Law No. 2939-VI set forth requirements for restricting access to information, rather than grounds for granting such access. This approach is based on the fact that Article 1 of this Law establishes a presumption of openness for public information, access to which may be restricted only if the information controller justifies such restriction based on a “three-part test.” The burden of proving that access to information may be restricted rests with the public information holder.
Classifying information as restricted-access information is not an automatic basis for refusing to provide the information. Information holders are required to apply the “three-part test” when considering a request. An unjustified refusal to provide information is unlawful.
Holders of information of public interest are required to provide it upon request by interested parties
The Supreme Court agrees with the plaintiff’s arguments that holders of information of public interest (information necessary for the public) are obligated to provide it upon request by interested parties.
The court concluded that the contested refusal was unlawful and that there were grounds for requiring the defendant to reconsider the individual’s request for public information dated March 15, 2022.
The mere fact of the imposition of martial law in Ukraine, without justification that certain actions cannot be performed within the timeframes prescribed by law due to its imposition, cannot be considered a valid reason for postponing the performance of such actions or for failing to perform them at all.
The Supreme Court considers the conclusions of the lower courts to be well-founded, namely that the mere fact of the imposition of martial law in Ukraine, without justification that it was impossible to provide the plaintiff with a response to his request, in connection with its imposition, cannot be considered a valid reason for postponing the performance of such actions or failing to perform them at all.
Given that the Pechersk District Court of Kyiv continues to operate under martial law, the panel of judges of the Supreme Court considers that the defendant’s use in this case of a deferral for the entire duration of martial law in Ukraine, taking into account the general recommendation to the courts issued by the Council of Judges of Ukraine at the outset of the Russian Federation’s full-scale invasion of Ukraine, was not justified by circumstances that objectively made it impossible to provide the requested information within the time limit established by law or that posed a threat to national security.
The proper respondent is the body that received the request for information, not the official acting on behalf of that body
The plaintiff submitted a request for public information to the Executive Committee of the Tairovka Settlement Council. The court agrees with the arguments of the cassation appeal to the extent that the Executive Committee of the Tairov Town Council is indeed the custodian of the public information requested by the plaintiff.
The Supreme Court noted that the conclusions of the appellate court regarding the dismissal of the claim on the grounds that it was filed against the wrong defendant are unfounded, and the arguments in the cassation appeal, which served as the basis for initiating cassation proceedings under paragraph 1 of Part 4 of Article 328 of the Code of Administrative Procedure of Ukraine, were confirmed during the cassation review of the contested court decision.
Conclusion
The legislation governing the collection, storage, use, and dissemination of information, as well as the establishment of liability for failure to provide it, is set forth in considerable detail, which likewise allows the requester to clearly formulate a request and receive a response to it. However, despite this, abuses by information controllers occur quite frequently—such as delays in responding, failure to provide information, or providing incomplete information, etc. This indicates that the penalties for such offenses, as provided for in Article 212-3 of the Code of Administrative Offenses, are insufficient, and that information holders are not held administratively liable in the vast majority of cases.
Case law regarding the obligation of information holders to provide information is quite widespread, which makes it possible to effectively use the tool of appeal and the restoration of violated rights through the Ukrainian court system.
Author: Barrister Alexander Shatniy
Source: https://yur-gazeta.com/dumka-eksperta/dostup-do-informaciyi-chi-zakonna-vidmova.html