The euphoria over the Law “On Access to Public Information” is gradually evaporating
First, the restrictive Law “On the Protection of Personal Data” was passed and then, on January 20, the Constitutional Court of Ukraine took another step to narrow the scope of the Law “On Access to Public Information” and thus curtailed freedom of expression and citizens’ rights to information.
According to the Constitutional Court ruling, information about an individual's personal and family life is confidential. This includes all information and/or data (except for information envisaged by law) about property and non-property relations, circumstances, events, relationships, and so on, having to do with a person (and members of his family) who is involved in performing the functions of the state or a local self-government body, as well as office or official duties. At the same time, the Constitutional Court specified which information is not confidential: 1) income declarations of persons (and members of their family) who are running for or already hold an elective government office, civil servants and local self-government officials of the 1st or 2nd category; 2) personal data of a physical person who is running for or already holds an elective office (in a representative body) or is a first-category civil servant, except for information defined as limited access by law; 3) information about illegal actions committed by government agencies, local self-government bodies and their officials.
In this way, the Constitutional Court ruled that any information about civil servants of categories 3-7, including their income declarations, is limited-access information and cannot be disseminated without their consent. But the situation with categories 1-2 – deputy ministers, heads of central executive bodies, heads of regional state administrations, chairmen of regional councils, etc. – is not clear, either. It would seem that their “income declarations” should be openly accessible. However, under the April 7, 2011 anti-corruption law, these civil servants must submit “declarations of property, income, expenses and financial obligations” rather than “income declarations” starting from January 1, 2012. In other words, the Constitutional Court ruling does not seem to really apply to them and their incomes appear to be confidential information. These nuances mean that government bodies may completely ignore the norms about publishing declarations of senior civil servants. Incidentally, the Constitutional Court did not say a word in its ruling about the President of Ukraine, ministers, the Speaker of the Verkhovna Rada, etc.
Experts have unanimously interpreted this ruling as being a way to help officials conceal their assets which often exceed the level of their official salaries.
“If you look at the Constitutional Court ruling in the context of what the government is saying about its resolute intention to abide by the law on access to public information, you will conclude that these are empty declarations. Decisions like the one issued by the Constitutional Court do extreme damage to the openness and transparency of society,” Suspilnist Foundation President Taras Petriv says indignantly. He predicts that the ruling will lead to an increased number of lawsuits against journalists trying to show officials in their true colors. Moreover, he believes that it marks a departure from European principles and international conventions on freedom of expression and information which Ukraine has implemented.
The mass media link these privacy concerns to the upcoming parliamentary election. Awareness about the real financial status of an MP hopeful may adversely affect his or her popularity, so concealing this information will be increasingly important to wealthy candidates. The Constitutional Court ruling will make it easier to keep information away from journalists and will protect officials against NGOs and initiatives that are committed to collecting and disseminating information about their corrupt activities and love of luxury.