Ukraine

Name of law: The Law of Ukraine On Access to Public Information
First adopted: 1992
Last modified: 2013-05
RTI Rating last updated: 2013-05

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Introduction

Local experts: Tetyana Oleksiyuk and Igor Rozkladaj

id	Section	Points	Max score
1	Right of Access	5	6
2	Scope	26	30
3	Requesting Procedures	22	30
4	Exceptions & Refusal	24	30
5	Appeals	25	30
6	Sanctions & Protections	3	8
7	Promotional Measures	10	16
		∑ = 115	∑ = 150

Section

Description

Scoring instructions

Max score

Findings

Points

Article

Comments

1. Right of Access

The legal framework (including jurisprudence) recognises a fundamental right of access to information.

Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.

YES

National Constitution Article 34 guarantees the right to information in the following terms: \"Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.\"

\"Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.\" Link to constitution (English version) http://www.president.gov.ua/en/content/constitution.html

1. Right of Access

The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.

No=0, Partially=1, Yes=2

YES

Article 1. Public Information 2. Public information shall be open except for instances established by the law.

1. Right of Access

The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information.

One point for each characteristic.

Article 4. Principles for Ensuring Access to Public Information 1. Access to public information according to this Law shall be carried out based on the principles of: 1) transparency and openness of the activity of subjects of public authority; 2) free obtaining and dissemination of information, except for limitations established by the law; 3) equal rights regardless of race, political, religious or other beliefs, gender, ethnic and social origin, financial standing, place of residence, language or other features.

2. Scope

Everyone (including non-citizens and legal entities) has the right to file requests for information.

Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons.

YES

Article 12. Definition and List of Subjects 1. Subjects of relations in the area of access to public information are: 1) requesters of information â€“ natural persons, legal persons, associations of citizens without legal person status, except for subjects of public authority;.

Physical persons, legal entities and associations of citizens without legal entity status are allowed to file requests.

2. Scope

The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.

Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.

Partially

Article 1. Public Information 1. Public information shall mean information that is reflected and documented by any means and at any media and which was received or created in the process of performance by subjects of public authority of their duties envisaged in the acting legislation or which is in possession of the subjects of public authority, other administrators of public information determined by this Law.

All info possessed by the authority is public - at it specifically mentions that all info regardless of the form in which it is reflected, regardless of the carriers of information. Internal documents are included in the general description of the public information that can be accessed unless a restriction was imposed based on Article 6.2 (public interest test). Therefore the internal document are included, and to be restricted in access it should be formally assigned an \"official information\" status.

2. Scope

Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).

Score 1 point for only documents, 1 point for information.

YES

Both information and documents seem to be included in the scope.

2. Scope

The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.

Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).

YES

All information seems to be included under the scope. All the State authorities, including the legislature seems to be covered by this article. According to the Constitution (Article 6) there are two types of public authorities - state authorities and local self-government authorities. \"State authorities\" covers all branches of power and some special bodies which are not formally included in any of branches - prosecutors, President of Ukraine. Therefore API Law covers effectively all public authorities.

2. Scope

The right of access applies to the legislature, including both administrative and other information, with no bodies excluded.

Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government

YES

2. Scope

The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded.

Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government

YES

All the state authorities, including the Judicial branch seem to be covered by this article.

2. Scope

The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State).

Score 1 point if some, 2 points if all

n/a

Not specifically mentioned. The Article says: \"Subjects of economic activity that dominate on the market or have special or exclusive rights, or natural monopolies â€“ regarding information about terms of supply of goods, services, and their prices\" This provision could be interpreted as that state owned companies are included under the scope, but the information provided is limited. ThatÂ´s why IÂ´ve decided not to score any point.

2. Scope

The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er).

Score 1 point if some bodies, 2 points if all

YES

Article 13. 1. For the purposes of this Law, the information administrators shall be: 1) subjects of public authority â€“ bodies of state power, other state bodies, bodies of local self-government, bodies of the Autonomous Republic of Crimea, other subjects that perform public management functions in accordance with legislation and whose decisions are mandatory for execution;

The article seems to cover all these bodies. Moreover, considering that the definition of "State authorities" covers all branches of power and some special bodies which are not formally included in any of branches, other public authorities and independent oversight bodies should be included.

2. Scope

The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding.

1 point for public functions, 1 point for public funding

Partially

Article 13. Information Administrators 1. For the purposes of this Law, the information administrators shall be: 1) subjects of public authority â€“ bodies of state power, other state bodies, bodies of local self-government, bodies of the Autonomous Republic of Crimea, other subjects that perform public management functions in accordance with legislation and whose decisions are mandatory for execution; 2) legal persons that are funded from the state, local budgets, budget of the Autonomous Republic of Crimea â€“ regarding information about the use of budget funds; 3) persons, if they perform delegated authorities of the subjects of public authority in accordance with the law or agreement, including delivery of education, health, social, or any other state services â€“ regarding information connected with execution of their duties;

3. Requesting Procedures

Requesters are not required to provide reasons for their requests.

Y/N answer 0 or 2 points

YES

19.2 A requester shall have the right to address the information administrator with information request regardless of whether this information concerns him/her personally or not and without having to explain the reasons for submitting the request.

3. Requesting Procedures

Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).

Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.

YES

19.5 Information request shall contain: 1) the name of the requester, postal address or e-mail, as well as the number of communications means if available; 2) general description of information or type, name, number or content of the requested document, if the requester knows it; 3) signature and date if the request is submitted in writing.

Resolution of the Plenum of the Supreme Administrative Court of Ukraine No. 10 dated 29 September 2016: "If the request contains contact enough information for the administrator to properly perform the duty, namely to respond to the request, the identification of the requester is not necessary for the decision of the administrator to provide information." Telephone number should be provided "if it exists". Requester can just state that he does not have a telephone number. The Law allows to give e-mail instead of giving mailing address.

3. Requesting Procedures

There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.

Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought.

YES

19.3 Information request may be individual or collective. Requests may be submitted orally, in writing or in other form (by mail, fax, phone, e-mail) as chosen by the requester. 19.4 A written request may be submitted in any form.

3. Requesting Procedures

Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification.

Score 1 point for help in formulation and 1 point for clarification procedures

Partially

16.1 Information administrator shall be responsible for defining tasks and ensuring activity of a structural unit or responsible person for issues of access to public information of the information administrator, who shall be responsible for processing, systematization, analysis and control concerning satisfaction of information request, providing consultation during preparation of the request, as well as for publishing of information as required by this Law.

Only a very general obligation to provide assistance to the requestor.

3. Requesting Procedures

Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.

Score Yes=2 point, No=0

YES

19.7 If because of sound reasons (disability, limited physical ability, etc.) a person cannot submit a written request, it shall be prepared by the responsible person for the issues of access to public information indicating his/her name, contact phone, and a copy must be provided to the requester.

3. Requesting Procedures

Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days.

Score 1 point for receipt, 1 point for max 5 working days

N/A

Not mentioned

3. Requesting Procedures

Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.

Score: 1 point for information not held, 1 for referrals or 2 for transfers

YES

22.3 The information administrator, who does not possess the requested information yet who by his/her status or the nature of his activity is aware or should be aware of who possesses it, shall be obliged to transfer this request to the appropriate administrator while simultaneously notifying the requester thereof. In this case, the term for request consideration shall start on the day of receipt of the request by the appropriate administrator.

3. Requesting Procedures

Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).

Score: 2 points for Yes, only 1 point if some limitations

Partially

7.2 Nobody may limit the right of person to choose forms and sources of information obtaining, except for the cases stipulated by law. 14.1 1. Information administrators shall be obliged to: 4) allocate special places for requesters to work with documents or their copies, as well as allow requesters to make extracts from them, photograph, copy, scan them, record on any information medium, etc.;

Only a general right to review documents at the place they are held and not a specific requirement to provide access in whatever format is desired.

3. Requesting Procedures

Public authorities are required to respond to requests as soon as possible.

Score: No=0, Yes=2 points

20.1 Information administrator must provide a reply to the information request not later than five working days from the date of receipt of the request.

Although the time for response is short, this is not a duty to respond as soon as possible.

3. Requesting Procedures

There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).

Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.

YES

20.1 Information administrator must provide a reply to the information request not later than five working days from the date of receipt of the request.

3. Requesting Procedures

There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.

YES

20.4 If the request requires providing a big scope of information or requires search within a large amount of data, the information administrator may extend the term for consideration of the request to 20 working days with substantiation of such extension. The information administrator shall notify the requester about the extension in writing no later than five working days from the date of receipt of the request.

3. Requesting Procedures

It is free to file requests.

Score: No=0, Yes=2 points

YES

21.1 Information in response to request shall be provided free of charge.

3. Requesting Procedures

There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free.

Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional

YES

21.2 If satisfaction of the information request requires making of photocopies of documents of more than 10 pages, the requester shall be obliged to compensate the factual expenses for copying and printing. 21.3 The amount of factual expenses shall be determined by the respective information administrator within the limits established by the Cabinet of Ministers of Ukraine. In case the information administrator has not established the amount of payment for copying and printing, the information shall be provided free of charge. 21.4 Requestor’s personal information and information of public interest shall be provided without payment for copying and printing.

The fees are determined individually by the public authorities but they are limited to copying/printing and the Government sets the maximum ceiling which cannot be exceeded. 10 pages are allowed to be printed for free.

3. Requesting Procedures

There are fee waivers for impecunious requesters.

21.4 Requestor’s personal information and information of public interest shall be provided without payment for copying and printing.

Not mentioned although there are some fee waivers.

3. Requesting Procedures

There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information.

Score: No=0, Yes=2 points

YES

4.1 Access to public information according to this Law shall be carried out based on the principles of: 1) transparency and openness of the activity of subjects of public authority; 2) free obtaining, dissemination and any other use of information, which was provided or published according to this Law, except for limitations established by the law; 3) equal rights regardless of race, political, religious or other beliefs, gender, ethnic and social origin, financial standing, place of residence, language or other features. 10-1.1 Public information in the form of open data means public information in a format that allows its automated processing by electronic means, free and free-of-charge access to it, as well as its re-use. Information administrators shall be obliged to provide public information in the form of open data upon request, publish and regularly update it on the unified state web-portal of open data and on their web-sites.

4. Exceptions & Refusal

The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.

Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points.

YES

2. Limitation of access to information shall be carried out in accordance with the law with observance of combination of the following requirements: 1) exclusively in the interests of the national security, territorial integrity or public order with the purpose of prevention of disorder or crimes, for protection of public health, for protection of the reputation or rights of other people, for preventing the disclosure of information received confidentially, or for maintaining the authority and impartiality of justice; 2) disclosure of information can cause significant harm to these interests; 3) the harm from publication of the information outweighs public interest in obtaining the information. 8.1 Secret information shall mean information, access to which is limited in accordance with Paragraph 2 of Article 6 of this Law, and disclosure of which may harm a person, society, and the state. Information that contains state, professional, banking secrets, secrets of pre-trial investigation and other secrets envisaged by the law shall be considered secret. 2. Procedure of access to secret information shall be regulated by this Law and special laws. 13.4 All information administrators, regardless of the legal act that determines their activity, must be guided by this Law when deciding issues concerning access to information.

Article 8.1 of the Law defines secret information as information access to which is restricted according to Article 6.2 of the Law. So even though there is a special Law on State Secrets, FOI Law trumps it.

4. Exceptions & Refusal

The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities.

Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed

Partially

6.1 Information with limited access shall be: 1) confidential information; 2) secret information; 3) official information. 6.2 Limitation of access to information shall be carried out in accordance with the law with observance of combination of the following requirements: 1) exclusively in the interests of the national security, territorial integrity or public order with the purpose of prevention of disorder or crimes, for protection of public health, for protection of the reputation or rights of other people, for preventing the disclosure of information received confidentially, or for maintaining the authority and impartiality of justice; 2) disclosure of information can cause significant harm to these interests; 3) the harm from publication of the information outweighs public interest in obtaining the information.

Article 6 allows information to be withheld to protect reputations, which is not a legitimate interest, as well as the rights of others, which is too broad, and information received confidentially, which could easily be abused.

4. Exceptions & Refusal

A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused.

Score 4 points and then deduct 1 point for each exception which is not subject to the harm test

YES

6.2 Limitation of access to information shall be carried out in accordance with the law with observance of combination of the following requirements: ... 2) disclosure of information can cause significant harm to these interests;

The harm test applies to all the exceptions listed.

4. Exceptions & Refusal

There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.

Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.

YES

6.2 Limitation of access to information shall be carried out in accordance with the law with observance of combination of the following requirements: ... 3) the harm from publication of the information outweighs public interest in obtaining the information.

The public interest override applies to all the exceptions listed.

4. Exceptions & Refusal

Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.

Score 1 point for each

Partially

6.4 Information with limited access must be provided by the information administrator if there are no lawful grounds to restrict access to such information that have previously existed.

No time limit listed. The 6.4 rules requires restrictions to pre-date the request but this is not a current assessment rule.

4. Exceptions & Refusal

Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.

Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.

N/A

There is no clear procedure for consulting with third parties.

4. Exceptions & Refusal

There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed.

Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted

YES

6.7 Access shall be limited to information and not to the document. If document contains information with limited access, information access to which was not limited shall be made available for examination.

4. Exceptions & Refusal

When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.

Score Y/N: 1 point for a and 1 point for b

YES

22.4 A refusal to satisfy information request shall include: 1) last name, first name and patronymic name and position of the person responsible for consideration of the request by the information administrator; 2) the date of the refusal; 3) grounded reason for the refusal; 4) procedure to appeal the refusal; 5) signature. 22.5 A refusal to satisfy information request shall be provided in writing.

Article 22, Section 4 and 5.

5. Appeals

The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).

Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.

YES

23.1 Decisions, actions or inaction of information administrators may be appealed to the administrator’s superior official, a higher authority or court.

5. Appeals

Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman).

1 for partial, 2 for yes

YES

23.1 Decisions, actions or inaction of information administrators may be appealed to the administrator’s superior official, a higher authority or court. Law of the Ukrainian Parliament Commissioner for Human Rights, Article 16 The Commissioner shall perform his or her duties on the basis of information about acts of violation of human and citizens' rights and freedoms, which he or she obtains through: 1. the appeals of citizens of Ukraine, foreigners, stateless persons or their representatives; 2. the appeals of the People’s Deputies of Ukraine; 3. his or her own initiative. Article 17. Consideration of appeals by the Commissioner The Commissioner shall receive and consider appeals of citizens of Ukraine, foreigners, stateless persons or persons acting in their interests, in accordance with the Law of Ukraine «On Appeals of Citizens».

Right to appeal to ombudsman (Parliament Commissioner for Human Rights).

5. Appeals

The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed.

Score: 1 point for appointment procedure, 1 point for security of tenure

YES

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 5.1 The Commissioner shall be appointed to his or her post and shall be dismissed from his or her post by the Verkhovna Rada of Ukraine by a secret ballot vote. Article 5.6 The Commissioner shall be appointed for the term of five years, commencing from the day of his or her taking oath at the session of the Verkhovna Rada of Ukraine. 6.1 Proposals for candidate(s) to the post of the Commissioner shall be made by the Chairman of the Verkhovna Rada of Ukraine or by no less than one-fourth of People’s Deputies of Ukraine of the constitutional composition of the Verkhovna Rada of Ukraine. A respective Committee of the Verkhovna Rada of Ukraine on the basis of the special check provided for by Article 5 of this Law shall submit its conclusions to the Verkhovna Rada of Ukraine on each candidate to the post of the Commissioner, on how the candidate meets the requirements envisaged by the Law, and on the absence of reasons which would prevent the candidate from holding this post. 6.2 The candidate to the post of the Commissioner shall be nominated within twenty days, commencing from the next day after: 1) this Law has entered into force; 2) the term of office of the Commissioner has expired, his or her authority has been terminated or in the event of his or her dismissal; 3) the results of voting have been announced, if the Commissioner has not been appointed. 6.3 Voting shall be conducted during plenary sessions of the Verkhovna Rada of Ukraine by a secret ballot vote but no earlier than ten days and no later than twenty days after deadline for nomination of candidates for participation in election. 6.4 The candidate shall not be deemed appointed until he or she receives the majority of votes from People’s Deputies of Ukraine making up the constitutional composition of the Verkhovna Rada of Ukraine, with the resolution adopted thereof. 6.5 Should more than two candidates to the post of the Commissioner be nominated and none of them is appointed, the Verkhovna Rada of Ukraine shall repeat voting between the two candidates who have won the majority of votes. 6.6 Repeat voting on the appointment of the Commissioner shall be conducted in accordance with the procedure established by this Article. 6.7 Candidates to the post of the Commissioner shall be nominated again if none of the candidates received the required number of votes. 9.1 The authority of the Commissioner shall be terminated in such cases: 1) the Commissioner refuses to further perform his or her duties by submitting a statement of resignation; 2) verdict of guilty of a court against him or her has come into effect; 3) court decision according to which a person holding the post of the Commissioner is considered missing or deceased has come into effect; 4) the newly-elected Commissioner has taken the oath; 5) person holding the post of the Commissioner has deceased. 9.2 The Verkhovna Rada of Ukraine shall adopt the resolution on dismissal from the post of the Commissioner before the expiration of term to which he or she has been elected, in case of: 1) violation of the oath; 2) incompliance with the requirements of incompatibility of the post of the Commissioner; 3) termination of citizenship of Ukraine; 4) inability to perform duties for more than four months in a row due to unsatisfactory health conditions or inability to work. 9.3 The Temporary Special Commission of the Verkhovna Rada of Ukraine shall conclude whether there are grounds to dismiss the Commissioner from the post. 9.4 If such grounds exist, the Verkhovna Rada of Ukraine shall consider this issue and adopt a respective resolution on dismissing the Commissioner from the post following an application by the Chairman of the Verkhovna Rada of Ukraine or no fewer than one-fourth of People’s Deputies of Ukraine of the constitutional composition of the Verkhovna Rada of Ukraine. 9.5 The Commissioner is considered dismissed from the post if the majority of People’s Deputies of Ukraine of the constitutional composition of the Verkhovna Rada of Ukraine voted in favour of it. 9.6 Termination of authority and dismissal of the Commissioner from the post shall be legalized by a respective resolution of the Verkhovna Rada of Ukraine.

5. Appeals

The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.

Score 1 point for reports to parliament, 1 point for budget approved by parliament

Partially

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 12.1 Financing for the activity of the Commissioner shall be allocated from the State Budget of Ukraine and will annually receive its own distinction. 12.2 The Commissioner shall elaborate, submit to the Verkhovna Rada of Ukraine for approval and implement budgetary outlays. Article 18.1 During the first quarter of every year, the Commissioner shall provide the Verkhovna Rada of Ukraine with an annual report on the issue regarding the observance and protection of human and citizens' rights and freedoms in Ukraine

Allocated from the State budget but reports to parliament.

5. Appeals

There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.

Score 1 point for not politically connected, 1 point for professional expertise

YES

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 8.2 Ombudsperson cannot be a member of any political party. Law of the Ukrainian Parliament Commissioner for Human Rights, Article 5.2 A Ukrainian Ombudsperson can be a person who has reached the age of 40 on the day of election, speaks the state language, has high moral qualities, experience in human rights activities and has lived in Ukraine for the last five years. Article 5.3 By their written consent candidates for the post of the Commissioner shall be subject to special check under procedure prescribed by Law “On Principles of Preventing and Counteracting Corruption”. 5.4 A person who has a criminal record that is not expired or expunged for committing a crime unless a person is rehabilitated or a person who has been given an administrative punishment for corruption during the last year shall not be appointed as a Commissioner.

5. Appeals

The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.

Score 1 point for reviewing classified documents, 1 point for inspection powers

YES

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 13.1 The Commissioner has the right to: 4) visit, without hindrance, bodies of state power, bodies of local self-government, enterprises, institutions, organizations, irrespective of their forms of ownership, and be present at their sessions; 5) review documents, including those which contain classified information and obtain copies from bodies of state power, bodies of local self-government, associations of citizens, enterprises, institutions, organizations, irrespective of their forms of ownership, bodies of prosecution, including court cases. The access to classified information is provided according to procedure established by the relevant legislation; 6) demand from officials and officers of bodies of state power, bodies of local self-government, enterprises, institutions, organizations, irrespective of their forms of ownership, facilitation in conducting inspection regarding the activity of enterprises, institutions and organizations under their control and subordination, and ensure that experts participate in acts of inspection, providing their expertise and respective conclusions;

The analysis made in the Report of Directorate of Information Society DGI (2016) SASG/2016/07 on the Ukrainian state authorities system and weaknesses of existing institution. No power to compel witnesses to testify, though.

5. Appeals

The decisions of the independent oversight body are binding.

Score N=0, Y=2 points

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 15.1 The acts of response of the Commissioner to violations of provisions of the Constitution of Ukraine, laws of Ukraine, international agreements of Ukraine on human and citizens' rights and freedoms are a constitutional submission of the Commissioner and a submission to bodies of state power, bodies of local self-government, associations of citizens, enterprises, institutions and organizations, irrespective of their forms of ownership, and their officials and officers. 15.2 The constitutional submission of the Commissioner is an act of response submitted to the Constitutional Court of Ukraine with regard to the issue of conformity (constitutionality) of a law of Ukraine or any other legal act issued by the Verkhovna Rada of Ukraine, the President of Ukraine and the Cabinet of Ministers of Ukraine, a legal act of the Autonomous Republic of Crimea with the Constitution of Ukraine; and with regard to the official interpretation of the Constitution of Ukraine and the laws of Ukraine. 15.3 The submission of the Commissioner is a document which is submitted by the Commissioner to bodies of state power, bodies of local self-government, associations of citizens, enterprises, institutions, organizations, irrespective of their forms of ownership, their officials and officers for the purpose of taking, within the period of one month, relevant measures aimed at the elimination of revealed acts of violation of human and citizens' rights and freedoms. Article13.1 The Commissioner has the right to: (11)submit to respective bodies, documents containing the response of the Commissioner to instances of violation of human and citizens' rights and freedoms, for taking respective measures;

Efficiency and effectiveness of the Ombudsperson's control suffers from a defective mechanism of creating administrative liability that is foreseen in the Code of Ukraine on Administrative Offences. Regional Ombudsperson’s representatives can only record the fact of the offence but have no authority to prosecute on their own. They send the record of the breach to the court that brings the guilty person to liability, but only on condition that the three-month period from the moment the violation took place has not expired yet, as the Code of Ukraine on Administrative Offences prescribes. In addition, the Ombudsperson’s representatives have no authority to carry out effective investigation - for example they have no right to force a person suspected of committing an offence, to a court. The Ombudsperson’s submissions are recommendations by their nature, and in order to bring to liability for the non-fulfillment of the lawful Ombudsperson’s requirements, its representatives must again draw up a separate protocol on an administrative offense, which is submitted to the court for a review.

5. Appeals

In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information.

1 for partial, 2 for fully

Partially

Law of the Ukrainian Parliament Commissioner for Human Rights, Article13(11) Ombudsperson has the right to submit to respective bodies, documents containing the response of the Commissioner to instances of violation of human and citizens' rights and freedoms, for taking respective measures.

The Ombudsman can recommend the declassification of information but not require it.

5. Appeals

Requesters have the right to lodge a judicial appeal.

1 for partially, 2 for fully.

YES

23.1 Decisions, actions or inaction of information administrators may be appealed to the administrator’s superior official, a higher authority or court.

5. Appeals

Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.

1 for free, 1 for no lawyer required.

YES

Appeal to Ombudsperson is free of charge and do not need legal assistance.

5. Appeals

The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).

Score 1 point for appealing refusals, additional points for appealing other violations.

YES

23.2 The requester shall have the right to appeal: 1) refusal to satisfy the information request; 2) postponement in satisfaction of the information request; 3) failure to provide reply to the information request; 4) provision of false or incomplete information; 5) late provision of information; 6) non-observance by the administrator of the duty to publish information in accordance with Article 15 of this Law; 7) other decisions, actions or inaction of information administrators that violated lawful rights and interests of the requester.

5. Appeals

Clear procedures, including timelines, are in place for dealing with external appeals.

Score 1 point for clear procedures, 1 point for timelines.

YES

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 17.1 The Commissioner shall receive and consider appeals of citizens of Ukraine, foreigners, stateless persons or persons acting in their interests, in accordance with the Law of Ukraine «On Appeals of Citizens». 17.2 Appeals shall be submitted to the Commissioner in a written form within the period of one year after disclosure of the act of violation of human and citizens' rights and freedoms. In case of exceptional circumstances, this period can be extended by the Commissioner, but should not exceed two years. Law of Ukraine «On Citizens’ Appeals» Article 20.1 Time for processing of applications of citizens Applications shall be processed and decided upon not later than in one-month term from the day of their receipt, and those which do not require any additional investigation shall be processed without undue delay, but not later than in fifteen days from the day of their receipt. If it is not possible to solve the issues, raised in the application, within one-month term, the head of the corresponding body, enterprise, institution or his/her deputy shall identify the necessary time for its processing and notify the applicant about it. However, the total time for solving the issues, raised in the application, shall not exceed forty-five days. 20.2 On citizen's reasonable request the time for processing, established by this article, can be reduced. 20.3 Application of citizens, who have privileges established by law, are processed in priority order.

Law of Ukraine «On Citizens’ Appeals» (available here)

5. Appeals

In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules.

Score Y/N and award 2 points for yes.

YES

Code of Administrative Proceedings of Ukraine, Article 77(2) In administrative cases on the illegality of decisions, actions or omissions of the subject of power, the burden of proving the legality of its decision, action or omission rests with the defendant. In such cases, the subject of authority may not rely on evidence that was not the basis of the contested decision.

5. Appeals

The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management)

1 for partial, 2 for fully.

Partially

14.1 Information administrators shall be obliged to: 1) publish information provided by this and other laws; 2) systematically carry out recording of documents which are in their possession; 3) keep records of information requests; 4) allocate special places for requesters to work with documents or their copies, as well as allow requesters to make extracts from them, photograph, copy, scan them, record on any information medium, etc.; 5) have special structural units or appoint responsible persons for ensuring access of requesters to information and publishing information; 6) provide and publish accurate, exact and complete information and, if needed, verify the correctness and objectiveness of information provided and update the published information. Law of the Ukrainian Parliament Commissioner for Human Rights Article 13.1 The Commissioner has the right to: 11) submit to respective bodies, documents containing the response of the Commissioner to instances of violation of human and citizens' rights and freedoms, for taking respective measures;

Ukrainian Ombudsperson has the power to recommend to the public authority to engage for example better records management. However these recommendations are not binding.

6. Sanctions & Protections

Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.

Score 1 point for sanctions for underming right, 1 point for destruction of documents

YES

24.1 Responsibility for violation of legislation on access to public information shall be borne by persons guilty of commission of the following offences: 1) failure to provide a reply to the request; 2) failure to provide requested information; 3) ungrounded refusal to satisfy information request; 4) failure to publish information in accordance with Article 15 of this Law; 5) provision or publication of false, inaccurate or incomplete information; 6) late provision of information; 7) ungrounded referring of information to information with limited access; 8) failure to register documents; 9) wilful withholding or destruction of information or documents. 24.2 Persons who believe that their rights and legal interests were violated by information administrators shall have the right to seek compensation of material and moral damages in accordance with procedure defined by the law. 3.1 The right of access to public information shall be guaranteed by: (6) legal liability for violation of legislation on access to public information.

6. Sanctions & Protections

There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).

Score 1 point for either remedial action or sanctions, 2 points for both

N/A

Not mentioned

6. Sanctions & Protections

The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.

Score 1 for oversight body, 1 for immunity for others

N/A

Not mentioned

6. Sanctions & Protections

There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).

Score 2 for strong protections, 1 for moderate protections

Partially

11. 1. Officials and officers shall not be subject to legal liability, regardless of the breach of their duties, for disclosure of information about infringements or information concerning serious threat to the health or safety of citizens and environment, if the person was guided by good intentions and had a justified conviction that the information was accurate and contained evidence of infringement or concerned serious threat to the health or safety of citizens and environment. Law of Ukraine ""On the prevention of corruption" includes protection for whistleblowers regarding corruption.

Only covers certain types of wrongdoing (infringements, threat to health, safety or the environment) and then corruption is covered separately.

7. Promotional Measures

Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations.

Score Y/N, Y=2 points

YES

3.1. The right of access to public information shall be guaranteed by: 1) duty of information administrators to provide and publish information, except for instances envisaged by the law; 2) designation by the information administrator of special structural units or officials, who organize access to public information in its possession according to the established procedure; 14. 1 Information administrators shall be obliged to: 1) publish information provided by this and other laws; 2) systematically carry out recording of documents which are in their possession; 3) keep records of information requests; 4) allocate special places for requesters to work with documents or their copies, as well as allow requesters to make extracts from them, photograph, copy, scan them, record on any information medium, etc.; 5) have special structural units or appoint responsible persons for ensuring access of requesters to information and publishing information; 6) provide and publish accurate, exact and complete information and, if needed, verify the correctness and objectiveness of information provided and update the published information.

7. Promotional Measures

A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information.

Score Y/N, Y=2 points

YES

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 14. 5 Commissioner exercises parliamentary control over the observance of the right of access to public information.

The analysis made in the Report of Directorate of Information Society DGI (2016) SASG/2016/07 suggests that there is a possibility of existence of a new independent body in the Ukrainian state authorities system and offers the body’s tentative structure (available here)

7. Promotional Measures

Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law.

Score Y/N, Y=2 points

YES

15.1 Information administrators shall be obliged to publish: (11) the procedure for preparing and submitting information requests, the information about an appeal procedure against decisions of the subjects of public authority, their actions or inactions.

The responsible public authorities have to publish the information in their web-sites, billboards in the public authorities' buildings

7. Promotional Measures

A system is in place whereby minimum standards regarding the management of records are set and applied.

Score Y/N, Y=2 points

Partially

18.1 To ensure preservation and access to public information, documents that are in possession of the subjects of public authority shall be subject to mandatory registration in the recording system that must contain: 1) name of the document; 2) date when the document was created; 3) date when the document was received; 4) source of information (author, relevant unit); 5) lawful ground for referring information to the category of limited access; 6) term for limitation of access to information, in case it is referred to information with limited access; 7) thematic area; 8) key words; 9) type, medium (text document, electronic document, tapes, video recordings, audio recordings, etc.); 10) type (normative acts, agreements, decisions, protocols, reports, press releases); 11) draft decisions (memoranda, petitions, statements, requests, proposals, letters, etc.); 12) form and place of the document’s storage and so on. 18.2 Access to the recording system, which contains information about documents that are in possession of the subject of public authority, shall be ensured by: 1) publication of such information on official web-sites of the subjects of public authority or, if the web-site does not exist, - by any other acceptable means; 2) providing access to the system in response to requests. 18.3 System of public information recording may not be referred to the category of information with limited access. 18.4 Information administrators shall bear responsibility for ensuring access to the recording system in accordance with the law.

Somewhat detailed system but lacks a full approach whereby a central body sets and enforces standards.

7. Promotional Measures

Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public.

Score Y/N, Y=2 points

Partially

15.1 1. Information administrators shall be obliged to publish: 5) information about the system of registration, types of information stored by the administrator; 5-1) list of datasets that are published in the form of open data; 18.1 To ensure preservation and access to public information, documents that are in possession of the subjects of public authority shall be subject to mandatory registration in the recording system that must contain: 1. name of the document; 2. date when the document was created; 3. date when the document was received; 4. source of information (author, relevant unit); 5. lawful ground for referring information to the category of limited access; 6. term for limitation of access to information, in case it is referred to information with limited access; 7. thematic area; 8. key words; 9. type, medium (text document, electronic document, tapes, video recordings, audio recordings, etc.); 10. type (normative acts, agreements, decisions, protocols, reports, press releases); 11. draft decisions (memoranda, petitions, statements, requests, proposals, letters, etc.); 12. form and place of the document’s storage and so on. 18.2 Information administrators shall bear responsibility for ensuring access to the recording system in accordance with the law.

Lists of types of documents only. In addition the responsible officials should disseminate open data information via their official websites, as well as publish it on the u state web-portal of open data: https://data.gov.ua/ and the United Web-Portal of budget funds spending: https://spending.gov.ua/edata. The Resolution of the Cabinet of Ministers No. 835, dated October 21, 2015, which regulates the dissemination procedure and prescribes which datasets should be made public by the responsible authorities, needs to be updated and amended.

7. Promotional Measures

Training programs for officials are required to be put in place.

Score Y/N, Y=2 points

Law of Ukraine on Civil Service, Article 13. Central body of executive power, which ensures the formation and implementation of state policy in the field of civil service provides identification of needs for professional training of civil servants in accordance with the requirements of professional standards. Article 48. Increasing the level of professional competence of civil servants 1. Conditions shall be created for civil servants to increase the level of professional competence through professional training, which is conducted on an ongoing basis. 2. Professional training of civil servants is carried out at the expense of the state budget and other sources not prohibited by law, through the system of training, retraining, specialization and advanced training, in particular in the field of public administration and administration, in the manner prescribed by law in schools, institutions, organizations regardless of the form of ownership, who have the right to provide educational services, including abroad.

This is just a very general training obligation which does not refer to access to information training specifically.

7. Promotional Measures

Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with.

Score Y/N, Y=2 points

Partially

15.1 Information administrators shall be obliged to publish (10) reports, including reports on satisfaction of information requests.

Information administrators obliged to consolidate and publish quarterly reports on the processing the requests. There is no obligation to consolidate a special report describing all aspects of the implementation of the law (disclosure of information, training of civil servants, etc.).

7. Promotional Measures

A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law.

Score Y/N, Y=2 points

Partially

Law of the Ukrainian Parliament Commissioner for Human Rights, Article 18.1 During the first quarter of each year, the Commissioners submit to Verkhovna Rada of Ukraine an annual report on measures and protection of human and civil rights and freedoms in Ukraine by state authorities, local governments, associations of citizens, enterprises, institutions, organizations, regardless of ownership and their officials and officials who violated their actions (inaction) of human and civil rights and freedoms, and shortcomings in the legislation found as for protection of human and civil rights and freedoms. 18.2 The annual report may contain references to cases of human and civil rights and freedoms violations, in respect of which the Commissioner uses the necessary measures, based on the results of the inspection conducted during the year, conclusions and recommendations for improving human and civil rights and freedoms situation. 18.3 If necessary, the Commissioner may submit to Verkhovna Rada of Ukraine a special report (reports) on certain issues of assistance in Ukraine to human and civil rights and freedoms.

There is no obligation to present special report on access to information issues, however the part of annual Ombudsperson’s report is dedicated to the access to information legislation implementation as a part of mandate.

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