Draft law on restricting access to information is excessive and unjustified

Draft law No 3294 has been registered in the Parliament. It suggests suspending the terms for consideration of citizen requests, requests for public information, and lawyers’ enquiries for the quarantine period. Civil Network OPORA is critical about the draft law deeming such restrictions as excessive.  

Draft law No 3294 was submitted to the Parliament on March, 30, 2020, by a people’s deputy Serhiy Demchenko (faction of the “SERVANT OF THE PEOPLE” political party). The draft law proposes amendments to the Law of Ukraine earlier approved by Verkhovna Rada  “On Introducing Amendments to Certain Legal Acts of Ukraine Aimed at Containment of the Coronavirus Disease (COVID-19)” (further referred to as – Law No 530-IX).

The draft law initiator included into the explanatory note the justification of the need to adopt it as the number of enquiries during the quarantine has grown, while  most of the staff from public authorities and local self-government work remotely, which  complicates the timely consideration of such enquiries.

OPORA reiterates that such novelties will be excessive, when introduced, while imposing restrictions on human and citizen rights and freedoms can only be permissible when such restrictions are proportionate and socially necessary. The restrictions to access to information stipulated in the draft law do not have any due substantiation behind. Moreover, the acting law empowers public administration authorities and public officials that receive the requests and enquiries  with the mandate to extend the terms for consideration of requests and enquiries. It sets the grounds for postponing the reply to the request for  information. In other words, to date, the acting law provides for efficient mechanisms to simplify the work of issuing replies to the requests under the quarantine.

Civil Network OPORA emphasizes the need to provide for openness and publicity for all political processes, and is concerned about the possible restrictions of public right  to access to public information to written requests, while due to the quarantine established on the territory of Ukraine, it is restrictive to receive information verbally, upon personal request or by means of attending public discussions and events of public information authorities.

During the quarantine, access to public information is an extremely important tool to receive the socially relevant information. In fact, during this difficult time, when the government imposed many restrictions and bans on citizens, it is important to have access to information on efficiency of performance of authorities under the quarantine.

Legislators suggest enshrining into the law the cases not subject to the changes. They include requests (enquiries) related to protection of life and freedom of an individual to the environment condition, quality of foodstuff and household items, emergencies, disasters, hazardous natural phenomena and other emergencies that have developed or may develop, and present a threat to citizens’ safety.

In fact, the legislator suggested the “reduced” and exhaustive list of information types that shall be provided upon request without any postponement for the quarantine duration.   The wording is going to be freely interpreted by the administrators of public information, and they are going to set a new obligation for citizens to justify and present additional evidence to prove that the requested information is related to the areas stated in the law. At the same time, setting any additional conditions for collection, use, and dissemination of information, except for those stipulated in Article 34 of the Constitution, shall be deemed as the breach thereto.

For example, what about the requests on public money spending to contain hazardous diseases? In fact, the administrators shall decide upon their own discretion whether the stated request falls under the prioritized consideration, or whether the reply can be postponed to the post-quarantine time.

Providing information requests and receipt of replies under current conditions mostly do not require any direct personal contact, thus there is no threat to health of requesters or persons in charge of providing the information.

It shall be noted that the special law in the field of preventing the spread of infectious diseases includes stricter requirements on provision of information to citizens. Thus, citizens and their associations are entitled to receive the true information on the epidemic situation in Ukraine. Public officials of authorities and institutions are liable under the law for refusal to provide information, for deliberate distortion or hiding of objective data on the prevalence of infectious diseases. Citizens are entitled to receive information on emergencies or hazardous events that have developed or may develop, also in a format accessible to persons with visual and hearing impairments. Citizens are entitled to true and timely information on their health condition and health of population, as well as about the available and possible risk factors for their health, and their severity.

OPORA fully upholds the position of the Commissioner of the Verkhovna Rada of Ukraine on Human Rights not to support the draft law on the postponement of consideration of requests and enquiries during the quarantine, since the proposed provisions of the draft law largely restrict an individual’s right to information and requests secured by Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms.

It shall be noted that in addition to the generally recognized right to information, the draft law provisions restrict  professional rights of lawyers to exercise  their legal activities  through receiving information to their lawyer’s enquiry. Restriction of the lawyer’s right to submit the lawyer’s enquiry affects the exercise of the right to legal assistance and the right to protection. With the lawyers disempowered to promptly receive information necessary to collect evidence in the court to defend the defendant, or to represent the  client’s interests in court, an individuals’ right to professional legal assistance and efficient judicial protection is restricted.

We hereby emphasize that pursuant to Article 15 of the Convention on Human Rights, in time of war or other public emergency threatening the life of nation, any High Contracting Party may take measures derogating from its obligations under this Convention. It is occurring to the extent strictly required by the exigency of the situation, provided that such measures are not inconsistent with its other obligations under international law. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe informed of the measures which it has taken and the reasons therefor.

To date, Ukraine has not yet submitted to the Council of Europe any respective request for derogation (intention to defy the provisions of the Convention on Protection of Human Rights and Fundamental Freedoms).  Therefore, the disempowerment on a legislative level contradicts the Convention and the practice of its application. In the future, it may lead to substantial economic losses due to satisfaction of complaints from citizens of Ukraine on infringement of rights during the special period.