The preamble to the Law of Ukraine “On Access to Public Information” states that this Law determines the procedure for exercising and ensuring everyone’s right of access to information held by public information holders, as well as to information of public interest.

It is no coincidence that the legislator distinguished between an individual’s right to information and society’s right to information as a broad community of participants in legal relations. Indeed, the Law of Ukraine “On Access to Public Information” contains mechanisms for exercising the constitutional right of everyone to freely collect, store, use, and disseminate information orally, in writing, or by any other means of their choice.

This individual right to information may be restricted by law in the interests of national security, territorial integrity, or public order, for the purpose of preventing disturbances or crimes, protecting public health, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary.

Thus, Article 6 of the Law of Ukraine “On Access to Public Information” defines the following categories of information with restricted access:

• confidential information;
• secret information;
• information for official use.

Access to such information may be denied only if all of the following requirements are met (the three-part test):

• the restriction is imposed exclusively in the interests of national security, territorial integrity, or public order, for the purpose of preventing disturbances or criminal offences, protecting public health, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary;
• disclosure of the information could cause substantial harm to these interests;
• the harm caused by disclosure of such information outweighs the public interest in obtaining it.

But everything changes when a private interest becomes bonum commune (the common good) and the requested information acquires the status of information necessary to the public.

What Is Information Necessary to the Public and How Is the Public Interest Measured?

Given the nature of information necessary to the public, Ukrainian legislation does not provide an exhaustive definition of this concept, which is also closely linked to the concept of the “public interest.” The flexibility of the legislation in this respect justifiably allows courts to determine whether particular information is necessary to the public, taking into account the individual circumstances of each case. In other words, these concepts apply to both private and public legal relations.

The Law of Ukraine “On Information” defines information of public interest as information that indicates a threat to Ukraine’s state sovereignty or territorial integrity; ensures the exercise of constitutional rights, freedoms, and duties; indicates the possibility of human rights violations, misleading the public, harmful environmental consequences, or other negative consequences of the actions or inaction of individuals or legal entities, etc.

The legislator’s use of the word “etc.” leads to the conclusion that the list of types of information that may be considered a matter of public interest is not exhaustive.

Thus, for example, information may be considered necessary to the public if its dissemination contributes to:

• discussion of issues of concern to society or a particular part of it, including the need to clarify matters important to an ongoing public debate;
• identifying and understanding the reasons underlying decisions made by a state authority, local self-government body, or its officials;
• strengthening the accountability of public authorities to society as a whole, including by ensuring transparency in the preparation and adoption of government decisions;
• effective oversight of the receipt and expenditure of public funds, the management of state or municipal property, and the distribution of social benefits;
• preventing the waste or misappropriation of public funds and property and preventing the unlawful personal enrichment of public officials;
• protecting the environment, identifying actual or potential environmental harm, and raising public awareness of the actual state of the environment and the factors affecting it;
• identifying and preventing risks to human health, public safety, and public order, as well as mitigating their consequences;
• identifying harmful consequences of the actions or inaction of individuals or legal entities;
• informing the public about the activities of public authorities (state authorities and local self-government bodies), their internal rules, organization of work, etc.;
• informing the public about the activities and conduct of public figures, meaning persons who hold public service positions and/or use public resources, as well as, in a broader sense, persons who play a certain role in public life – in politics, economics, the arts, the social sphere, sports, or any other field;
• exposing shortcomings in the activities of public authorities and their employees;
• identifying human rights violations, abuse of power, corruption offences, unethical conduct by public officials, failure to perform (or improper or negligent performance of) their duties, and discrimination on any grounds;
• innovation and scientific research;
• economic development, entrepreneurship, and investment;
• identifying instances in which the public has been misled.

The Supreme Court, sitting as a panel of judges of the Administrative Court of Cassation, in Case No. 420/8512/20, emphasized that “significant public interest” should be understood as a serious and well-founded interest of exceptional importance to society as a whole, particular groups of people, territorial communities, associations of citizens, etc., in a particular case, in view of the potential impact of the judicial decision adopted in that case on the rights, freedoms, and interests of individuals and on the rights and interests of legal entities. This concept encompasses those needs of society or particular groups within it that are connected with preserving, enhancing, and protecting existing values, the devaluation and/or loss of which would have a significant negative impact on the development of civil society.

In addition, when determining whether information is necessary to the public, the following factors should be taken into account:

1. The identity of the requester. If the information is requested by a journalist or by a person who, using modern means of communication, creates a platform for public discussion of important issues and systematically informs society about matters of public concern, or by a representative of a civil society organization, this constitutes an additional argument in favor of recognizing a public interest in the requested information.
2. The number of persons (individuals or legal entities) affected by the requested information. For example, information about the structure of utility tariffs concerns every member of the territorial community to which the relevant decision applies. Therefore, the greater the number of people whose rights, duties, and interests are affected by the requested information, the greater the public interest in it.
3. The existence of an ongoing public debate at the time the information holder receives the request. This concerns a current discussion taking place, for example, in the media, parliament, or a local council.
4. The amount of time that has passed since the information/document was created. As a rule, the more time that has passed since the creation of the information or document, the lower the potential harm caused by its disclosure and, consequently, the greater the weight given to disclosure.
5. The lower the likelihood of harm, the greater the weight given to disclosure of the information.
6. If the information concerns a public figure or a person seeking public office, this is an additional argument in favor of disclosure. Access to such information may be restricted only where there are serious circumstances and a high likelihood of substantial harm. In this context, public figures may include persons holding public service positions (positions in state authorities or local self-government bodies) or using state resources, as well as anyone who plays a particular role in public life (in politics, economics, the arts, the social sphere, sports, or any other field). The higher the public office a person holds or seeks to hold, the more limited the possibility of restricting access to information about that person.
7. Only very serious arguments in favor of the public interest in disclosure can outweigh the potential harm to the right to privacy and the protection of personal data when so-called sensitive personal data are involved (data concerning racial or ethnic origin, political, religious, or philosophical beliefs, membership in political parties and trade unions, criminal convictions, as well as data concerning health, sex life, biometric data, or genetic data).

Public Interest as a Component of the Tromsø Convention

The public interest in information, in the spirit of the Council of Europe Convention on Access to Official Documents* (the Tromsø Convention), reflects citizens’ concern with the conduct of public affairs, which is also guaranteed by Article 38 of the Constitution of Ukraine.

The preamble to the Tromsø Convention states that the exercise of the right of access to official documents:

• provides the public with a source of information;
• helps the public form an opinion on the state of society and on public authorities;
• fosters the integrity, efficiency, effectiveness, and accountability of public authorities, thereby helping to affirm their legitimacy.

As stated in the Explanatory Report to the Convention, its purpose is to create a situation in which public authorities encourage public participation in decision-making processes and in addressing matters of public interest.

Therefore, when an information holder receives a request for information with restricted access, it must be guided by the principle of assessing potential harm and by the principle of balancing the public interest in access to official documents against the interest protected by the restriction.

Accordingly, when applying the “three-part test” provided for in Part 2 of Article 6 of the Law of Ukraine “On Access to Public Information,” the information holder must analyze:

• which specific legitimate interests would be harmed if the requested information were disclosed and why restricting access to the information serves those interests;
• what exactly the harm would consist of and why it would be substantial;
• the causal link between granting access and the potential occurrence of such harm;
• why the harm caused by disclosure outweighs the public interest in obtaining the information.

Even if it can be demonstrated that disclosure of the information may cause substantial harm to a legitimate aim, the information must nevertheless be provided upon request or made public if the public interest in its disclosure outweighs the harm.

*An international instrument ratified by Ukraine that formed the basis for the Law of Ukraine “On Access to Public Information.”

Source: cedem.org.ua