Information Policy of Ukraine: Access, Transparency, E-governance

Introduction

Information policy observers in Ukraine could note constant struggle between transparency and secrecy tendencies. It has direct impact on the 'public authority - civil society' relations influencing both sides of freedom of information: right to obtain and right to disseminate information freely. Both of them are indicators of democracy. The right to obtain information (right to access) is connected to the transparency of public management, good governance and citizens' participation in public affairs, the right to disseminate information freely - to press freedom and political pluralism. The competition of mentioned tendencies becomes apparent at political, regulatory and practical levels. Ukrainian politicians declare adherence to the transparency policy but the monitoring of legal changes shows non-correspondence of words and deals.

State Owned versus Public Domain

The Constitution of Ukraine adopted in 1996 contains a "right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice" (Article 34). But it does not include a specific general right of access to information held by public authority [1]. Such gap is the source for the manipulations at the level of laws and under-laws regulations.

The 1992 Law on Information allows citizens to request access to official documents[2]. But the exceptions from the right to access are broad and vague. The Article 28 classifies information in terms of access mode as open information and information with restricted access. The Article 30 provides for the two types of restricted access information: confidential and secret. Confidential information shall be understood as data being possessed, used or disposed by certain natural persons, legal entities, to be disclosed at their discretion, subject to conditions established by these persons. Secret information shall be understood as information, which contains data qualified by law as the state and other secrets, the disclosure of which will damage the person, society, and the state.

The mentioned Article 30 also provides that "the procedure for secret information circulation and protection shall be determined by relevant state bodies provided they abide by the requirements set forth in this Law; and "a relevant law shall determine the procedures and terms for disclosing secret information".

The requirements for the processing of state secret have been determined by the Law on State Secret [3]. But the processing of other secret information has not been regulated by laws yet. The Cabinet of Ministers exceeding its authority adopted the Regulation on the Rules of Accounting, Keeping and Usage of Documents, Editions and Other Material Carriers Containing Confidential Information Owned by State in 1998 [4]. The Regulation is in conflict with the Article 30 of the Law on Information according to which confidential information shall be understood as data being possessed, used or disposed by certain natural persons, legal entities but not state.

As the Law on Information does not provide for the interpretation of terms "open access information" and "other secrets, the disclosure of which will damage the person, society, and the state" such loopholes granted broad discretion of public authority when classifying information. The proprietary concept is used for the limitation of citizens' access to government-held information. A study by the Kharkiv Group for Human Rights Protection found sufficient overclassification of documents in 2000-2001 [5].

The concept of state property on information held by government presumes that it's discretion of public bodies' officials to decide what information could be of open access. Mainly it is limited to the information about official activity distributed by public bodies as a part of public relations campaigns. Such PR activity of public bodies is required by the Ukase of President on Additional Measures to Ensure the Publicity of the Governmental Bodies Activities of August 1, 2002 (N 683/2002). It ordered the Cabinet of Ministers to study the implementation of the Law on Information for the years 2000-2002.

The report on the implementation of the Ukase submitted by December 10, 2002 by the central and local executive bodies to the State Committee on Information contains among other statistical data of the access granted to open information [6]. According to the report "there were no refusals to provide open information". But it does not contain information on the rejected inquires with regard to the classified information which could be of public interest.

The attempt to legalize the proprietary concept with regard to the government-held information has been made by the law-enforcement agencies by submitting draft law to the Parliament (N 2663 of January 17, 2003). It provides among other for the amendments to the Article 30 of the Law on Information granting to the Cabinet of Ministers authority to adopt "regulation on the accounting, keeping and usage of documents and other carriers containing confidential information owned by state". It also aimed to amend the Law on Printed Mass-Media (Press) in Ukraine restricting the right to freely search, receive, fix, save, use and disseminate information to the information with open access.

The draft has been approved by the Parliament in a very little time by June 9, 2003. By this time Leonid Kuchma, the President of Ukraine, has not signed the draft law yet. The domestic and foreign experts found it very restrictive and violating freedom of information.

Such unexpected decision of the Parliament is in conflict with the previously adopted law On the Amendments to the Several Legal Acts on the Safeguards and Unhampered Fulfillment of the Human Right to Freedom of Speech (No 676-IV) signed by the President of Ukraine on April 3, 2003 as a result of the Parliamentary hearings devoted to freedom of speech in Ukraine held on December 4, 2002. The Law No 676-IV introduces administrative liability for the violation of the right to information (failure by public authority to provide information to the public upon request, for releasing incomplete information and/or for undue delay in the release of information) amending the Code of Administrative Offences with the new Article 212-3. Amendments to the Article 17 of the Law on State Support of Mass-Media and Social Safeguards to Journalists release journalists from the liability for the unintentional dissemination of false information. It amendments the Law on Information prohibiting censorship (Article 45-1) and also amends the Article 30 of the Law on Information with the provisions allowing dissemination of classified information without permission of its owner if: 1) such information is of public interest; and 2) the right of public to know prevails the owner's right for the protection.

The provisions of the Law N 676-IV may be considered as the first attempt to introduce concept of public domain information into Ukrainian legal framework. Further elaboration of the comprehensive government information policy framework for the management and open dissemination of government-held information is required.

Perspectives of ICT usage for the improvement of access and transparency

The dissemination of information about government activity, virtual interfaces between citizens, national and local authorities as well as provision of public services on-line are the few examples of the E-gov services usage as effective tools to facilitate an environment of transparency and better governance.

It is already proved that wide dissemination of government-held information using public networks improves efficiency and effectiveness of governance and has multiplier effect for the development of social capital and for economic welfare.

The Ukase of President of July 2000 On the Measures for the Development of National Inclusive Internet Information Network and for the Provision of a Broad Access to this Network in Ukraine" obliges public bodies to "establishment until the end of 2000 of the order of distributing the information on the public bodies activity and the completion of creation of the official web-sites by the central bodies of executive power" [7].

The Cabinet of Ministers approved the Order on the Dissemination in the Internet Information on the Activity of the Bodies of Executive Power in January 2002 (N 3) [8]. The Order provides for two ways of information dissemination: via public bodies official web-sites and by the creation of the United Web-Portal of the Cabinet of Ministers of Ukraine integrating public bodies official web-sites information. The Order determines the competence of public bodies, procedure of on-line publication as well as the list of the mandatory information to be provided.

The study of Internews-Ukraine found the positive influence of the Order N 3 resulting in more factual content and regular updates of the information in 2002 [9].

The Order of the Information Fulfillment and Technical Safeguards of the United Web-Portal of the Public Bodies of Executive Power and Order of Public Bodies Web-Sites Functioning has been jointly enacted by the State Committee on Information Policy, TV and Broadcasting, and the State Committee on Telecommunications in November 2002 [10]. It reduces the mandatory list of information for its distribution via United Web-Portal to official news, announcements of meetings, visits and their results, press-releases, official statements, interviews, speeches - to be disseminated, if not immediately, in 1-3 days; and statistical & analytical information - to be disseminated when appropriate.

It is expected sufficient improvement of E-gov services based on identification and digital signatures usage by 2005. Such schedule is fixed in the Cabinet of Ministers Enactment on the Measures for the Creation of Electronic Information System 'Electronic Government' adopted in February 2003 [11]. The plans of the Government based on the legal framework created by the Laws on Electronic Digital Signature [12] and the Law on Electronic Documents and Electronic Documents Circulation adopted in May 2003 and entering in force from January 1, 2004 [13].

The mentioned regulations create, in general terms, the new interactive form of interrelations between civil society and government. It is to improve effectiveness of public management surely. But its effect could be multiplied in social and economical dimensions if the state policy with regard to the dissemination of information held by government would be improved.

To confirm the barely written the statistical data of the public sector information (PSI) value comparative study could be used. It is found sufficient discrepancy in Europe and US of the PSI economic value. The amount, EU governments spend in creating information, is around 9.5 bn Euro each year, and the central estimate of economic value of this data is 68 bn Euro. In the USA the investment value is double than in the EU, but the economic value - at 750 bn Euro. The report imputes it partly to US public sector information policy based on strong freedom of information law, no government copyright, fees limited to recouping the cost of dissemination, and no restriction on reuse [14].

The survey recently published by UNESCO contains recommendations for the development of government information policy framework based on the concept of public domain information wide dissemination [15]. It could be used for the improvement of access and transparency in Ukraine.

1. Constitution of Ukraine, 1996.
2. The Law on Information of October 2, 1992 (N 2657-XII) as amended by the Laws of April 6, 2000 (N 1642-III), of February 7, 2002 (N 3047-III), of April 3, 2003 (N 676-IV).
3. The Law on State Secret of January 21, 1994 (N 3855-XII) in the redaction of Law of September 21, 1999 (N 1079-XIV) as amended by the Law on June 19, 2003 (N 971-IV)
4. Cabinet of Ministers Regulation on the Rules of Accounting, Keeping and Usage of Documents, Editions and Other Material Carriers Containing Confidential Information Owned by State of November 27, 1998 (N1893) as amended by the Enactments of November 29, 2001 (N 1601), of March 13, 2002 (N 281).
5. Kharkiv Group for Human Rights Protection, Analysis of Practice Access to Governmental Information; www.khpg.org/index.php?au=0322001000
6. www.article19.org.ua/publications/report.html
7. The Ukase of July 31, 2000 (N 928/2000)
8. Enactment of January 4, 2002 (N 3) as amended by the Enactment of June 16, 2003 (N 905).
9. See: An Analysis of Internet Access to Information of the Institutions of the State of Ukraine; gipi.internews.ua/ukr/activity/analyst/Ukraine_Internet_Analysis_Edit.doc
10. Enactment of November 25, 2002 (N327/225).
11. Enactment of February 24, 2003 (N 208).
12. The Law of May 22, 2003 (N 852-IV).
13. The Law of May 22, 2003 (N 851-IV).
14. PIRA International (2000), "Commercial Exploitation of Europe's Public Sector Information", Final Report to the European Commission, Directorate General for the Information Society; ftp.cordis.lu/pub/econtent/docs/commercial_final_report.pdf
15. Draft Policy Guidelines for the Development and Promotion of Public Domain Information / prepared by Paul Uhlir - Paris: UNESCO, 2003; unesdoc.unesco.org/images/0012/001297/129725e.pdf