Supervisory Mechanism for the Right to Information (UA0039)

Developing and submitting to the Cabinet of Ministers of Ukraine in due course a draft law on exercising state supervision over enjoyment of the right to access to public information

✪ 7. Right to information supervisory mechanism

Commitment Text: 7. Developing and submitting to the Cabinet of Ministers of Ukraine in due course a draft law on exercising state supervision over enjoyment of the right to access to public information.

Expected result: relevant draft law endorsed by the Cabinet of Ministers of Ukraine, submitted to the Verkhovna Rada of Ukraine, and followed up until adoption.

Lead institution(s): State Committee on TV and Radio Broadcasting

Supporting institution(s): Ministry of Justice, Parliament's Ombudsman, International Renaissance Foundation, unspecified NGOs and international organisations

Start Date: Not specified                                                        End Date: 31 December 2015

Commitment aim

In 2011, Parliament adopted a new Law on Access to Public Information. It did not provide for a separate mechanism for supervising its enforcement, notably through an extrajudicial review of complaints. Lack of the relevant provisions was one of the main deficiencies of the new law. The commitment aimed to address this deficiency by establishing a supervisory mechanism for enforcing the access to information provisions. This would enhance the right to access information, increase accountability of public authorities, and make the government more transparent.

Status

Midterm: Complete

The 2014 Law on Anti-Corruption Strategy of Ukraine for 2014-2017^{[Note 28: http://bit.ly/1LvuQWk. ]} established as one of its policy directions setting up or designating a state authority to oversee implementation of the right to access information. Such authority would have to comply with standards of effectiveness and independence. From October 2014 to April 2015, a working group at the ombudsman’s office developed draft amendments to the Law on Access to Public Information, particularly in regard to the oversight authority. A joint EU and Council of Europe project provided assistance during the drafting process.^{[Note 29: Independent Reporting Mechanism (IRM) Progress Report 2014-15: Ukraine, 38-39.]} The commitment reflected international standards^{[Note 30: See, for example, Article 19 of the Model Freedom of Information Law, the Council of Europe Convention on Access to Official Documents, and the Right to Information Global Rating Indicators.]} and Ukraine’s commitment to its international partners. In addition to the OGP action plan, the enactment of amendments to the body overseeing access to information was one of the conditions for EU funding for Ukraine.^{[Note 31: Independent Reporting Mechanism (IRM) Progress Report 2014-15: Ukraine, 39.]}

A group of MPs submitted the draft law, developed by experts, to Parliament in May 2015.^{[Note 32: http://bit.ly/1jy74C7. ]} The relevant committee endorsed it, and the draft law awaited its consideration in the first reading. While the commitment stated that the government had to develop a relevant draft law, it can be viewed as completed because a group of MPs submitted the draft law to Parliament. The commitment did not require adoption or enforcement of the law.

The draft law identifies the ombudsman as an oversight authority for access to information, and assigns a range of powers to that office. Those powers include receiving and reviewing complaints on access to information violations; obtaining any information (documents) from any party, including classified information; obtaining explanation and other evidence; and issuing binding decisions on the disclosure of requested information or on addressing any other violation of the access to information legislation. Decisions of the ombudsman in this regard will be executed by the bailiff’s service, much like a court decision.

As written, the commitment was complete at the midterm. This is because the scope of the commitment did not include adoption or enforcement of the law. Since the midterm, there has been no further progress on the draft law in parliament.  

Did it open government?

Access to information: Did not change

Public accountability: Did not change

The law was not adopted and, as such, did not change the status of government practice. If adopted, it could have a significant impact in terms of strengthening enforcement of the right of access to information in Ukraine. Citizens continue to face limited options for challenging access to information restrictions through administrative appeals to the public agency that violated the access rights. Appeals to a superior administrative agency have also proved ineffective, while judicial appeals are time consuming and costly. The supervisory mechanism envisioned by the draft law would fill this gap if it were passed into law.

Carried forward?

The commitment was not carried over to the new action plan. The IRM researcher recommends adopting as soon as possible the draft law pending in Parliament, and ensuring its implementation. The draft law will vest significant additional powers and responsibilities in the ombudsman office, which should be matched with commensurate resources. The government will need to ensure that relevant funding is allocated in the state budget, and that the ombudsman has the necessary human and other capacities to implement the law and process complaints related to alleged violations of the access to information legislation. In the midterm, public authorities should explore the possibility of amending the Constitution of Ukraine to allow the establishment of a stand-alone oversight agency with enforcement powers to relieve the ombudsman of this function. Such an agency could also oversee respect for the right of personal data protection, which is often related to access to information.