EPL considers that the proposed Draft Order of Provision and Dissemination of Environmental Information does not take into account none of the recommendations given by the Committee and furthermore straitens assess to environmental information comparing to general domestic procedure on citizens’ appeals for information held by public authorities.
I. Dissemination of Environmental Information
The current legislation of Ukraine does not give any further development to Article 5 of the Aarhus Convention regarding collection and dissemination of environmental information.
Ministry of Environmental protection does not collect and thus does not hold such information as materials of Environment Impact Assessments and other documents provided by developers in the course of State Environmental Expertiza (a decision on whether to approve project and allow particular activity) or information on emissions produced by operators.
The proposed Draft Order does not establish any mandatory systems insuring adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment.
As for today the government does not provide information to the public about the type and scope of environmental information held by the relevant public authorities. No Publicly accessible lists, registers or files are in place.
None of these issues is triggered at the Draft Order.
II. Provision of Environmental Information
A. Draft Order straitens public access to environmental information comparing to general rules of access to information held by authorities
The general procedure for handling public requests for information in Ukraine is established by the Law “On Information” and the Law “On Citizens’ Appeals”.
Article 37 of the Law “On information” lays down a list of reasons justifying a denial for access to information held by public authorities. It says that public authorities are not bound to provide official documents which include the following information:
- Information, classified as state secret on the basis of law;
- Confidential information;
- Information about investigations if its disclosure may adversely affect such investigation, breach one’s right to a fair trial, create a threat for one’s life or health;
- Information concerning personal life of citizens;
- Documents which constitute internal communications of public authorities if they concern decision-making and precede such decisions;
- Information with is precluded from dissemination according to other legislative acts or regulations. Authority to which a request was addressed may not provide a document if it contains information which is precluded from dissemination by the regulations of other authority and the first one is not authorized to declassify this information;
- Information of financial institutions prepared for financial controlling authorities.
[The list is exhaustive.]
Article 30 of the Law “On information” talks about information with limited access and distinguishes two types of information with limited access – confidential information and secret information.
Information on the state of the environment could not be classified by authorities as confidential. (§4)
Private persons may classify as confidential any information which they earned and possess. Information in the sphere of environment and information hiding of which constitutes a threat to human life and health – are examples. (§5,6)
Information with limited access may be disseminated without consent of its owner if this information is important for public meaning that if it is a subject of public interest and if right of a public to be aware of this information overrides the right of its owner to protect such information. (§11)
Article 8 of the Law of Ukraine “On State Secret” provides that information on the state of the environment could not be classified by authorities as secret.
Article 7 of the Law of Ukraine “On Citizens’ Appeals” guarantees that all citizen’s appeals including request for information are answered unless anonymous.
The abovementioned current legislation for handling public requests on information implies to all kinds of information and complies with the provisions of Aarhus Convention. Thus any additional list of reasons justifying denial of access to information will straiten public access to environmental information comparing to any other information rather then make it more open.
The Draft Order does lay another list justifying denials. Paragraph 10 of the Draft Order reads as follows:
Authorities may deny providing information upon a request if:
- Authority does not possess the information requested;
- Requested information constitutes the information with limited access according to the Article 50 of the Constitution of Ukraine;
- information concerns internal information exchange between state authorities;
- the request is formulated in a way that its too general character makes it impossible to answer;
- information concerns the materials at the final stage of their preparation;
- disclosure of the information can negatively affect confidentiality of activity of public authorities in case if such confidentiality is envisaged by current legislation, international relations, national defense or state safety according to the Law of Ukraine “On State Secrets”, exercise of justice, possibility for people to be under court or capacity of state authorities to conduct investigations of criminal, administrative or disciplinary character, right of intellectual ownership; environment, for which such information is disseminated, especially at the territories which are habitats for reproduction of especially valuable, rare and endangered species of flora and fauna.
1. Subparagraph 10.1 of the Draft Order states that authority can deny access if it does not hold the information requested.
It is illegal to diminish rights granted by the Constitution and laws of Ukraine by regulations. The law “On Information” does not list such reason for the denial of access to information. The Law of Ukraine “On Appeals of Citizens” proclaims that citizens’ appeals shall be answered unless anonymous, (Article 7). It lays down procedure for the cases when a request was sent to a public authority which does not hold the information requested. In such situations an authority is required to forward a request to another authority which can answer the request.
Furthermore, since public authorities do a poor job on collecting and holding information relevant to their responsibilities, such reason for the denial is very convenient for them.
2. Subparagraph 10.2 states that an authority can deny access if requested information constitutes the information with limited access according to Article 50 of the Constitution of Ukraine. Article 50 of the Constitution of Ukraine proclaims that:
“The right to free access to information on the state of the environment is guaranteed to everyone. No one shall make such information secret”.
3. Subparagraphs 3 (information concerns internal information exchange between state authorities) and 5 (information concerns the materials at the final stage of their preparation) divide paragraph 5 of Article 37 of the Law “On information” and although use the same wording due to division provide wider opportunities to deny access to information.
4. Subparagraph 4 (the request is formulated in a way that its too general character makes it impossible to answer) lays down a reason for the denial not listed in the Law “On information”, contradicts Article 7 of the Law “On Citizens’ Appeals”, which oblige authorities to answer all requests, unless anonymous, and thus is illegal.
5. Subparagraph 6 states that authority can deny access if dissemination of the information requested can negatively affect confidentiality of activities of state authorities in case if such confidentiality is envisaged by current legislation, international relations, national defense or state safety according to the Law of Ukraine “On state secrets”, renewal of justice, possibility for people to be under court or capacity of state authorities to conduct investigations of criminal, administrative or disciplinary character, right of intellectual ownership; environment, for which such information is disseminated, especially at the territories which are habitats for reproduction of especially valuable, rare and endangered species of flora and fauna.
This paragraph includes objects which can be adversely affected by dissemination of particular information and due to what access to such information can be denied. These objects (confidentiality of activities of state authorities in case if such confidentiality is envisaged by current legislation, international relations, national defense or state safety according to the Law of Ukraine “On state secrets”, renewal of justice, possibility for people to be under court or; environment, for which such information is disseminated, especially at the territories which are habitats for reproduction of especially valuable, rare and endangered species of flora and fauna) are not listed in the Law “On Information”.
Furthermore the paragraph includes “right of intellectual ownership” as a reason for possible denial. Ministry of environmental protection and its local offices very often deny public access to EIA materials claiming them to be protected under intellectual property rights provisions. Instead of fixing a problem identified by the Committee the Government is listing this unlawful reason for the denial in the Draft Order.
B. Requirements regarding terms for providing environmental information and forms of requests, established by the Draft Order, do not comply with domestic legislation and Aarhus Convention
The paragraph 8 of the Draft Order states that the request should be written. This contradicts paragraph 1b of Article 4 of the Convention.
The paragraph 9 states that environmental information is provided in terms, defined by the Law of Ukraine “On Information”, but not later than one month since the request is received, if only the volumes of complicity of collection of data inquired do not justify extension of this term up to two months since the request is received.
Extension of the term up to 2 month contradicts Article 33 of the Law “On Information” which states that the answer shall be provided within a month unless other term is established by the law. Article 20 of the Law of Ukraine “On Citizens’ Appeals” allows prolonging the term only up to 45 days. There is no other law establishing longer term.
C. The Draft Order does not account for the recommendations of the Committee
The Draft Order fully ignores Findings and Recommendations of the Compliance Committee adopted at its 23-rd meeting. It does not contain provisions (a) requiring that public authorities obtain environmental information relevant to their functions (b) requiring that information within the scope of article 4 of the Convention is provided, regardless of its volume; (g) requiring that public authorities do not limit the provision of information under article 6, paragraph 6, and article 4 of the Convention to publication of the environmental impact statement but include other relevant information to ensure more informed and effective public participation; (h) clarifying that information that applicants are required to provide in the course of the public authorities’ decision-making under article 6 is generally not exempt from disclosure; (i) requiring disclosure of EIA studies in their entirety as the rule (with the possibility for exempting parts being an exception to the rule); (j) requiring that texts of decisions, are publicly available, along with the reasons and considerations on which they are based.
Instead, it explicitly states that is disclosure of particular information may adversely affect intellectual property rights (parag. 10.6) or this information concerns the materials at the final stage of their preparation (parag. 10.3) it may not be provided.
