As the full-scale war started, local self-government bodies faced new challenges in working with public information. According to Mykhailo Shelep, decentralization and local self-government adviser of the U-LEAD with Europe regional office in Rivne oblast, despite the introduction of martial law, there have been no significant changes in the information legislation:
“The effective legislation does not allow automatic closing access to public information, even during martial law. There is no regulatory act that sets out a list of information that should be restricted. At the same time, there are clear procedures that should be applied in every specific case to prevent the restricted information dissemination.”
This issue becomes even more urgent in the context of video recording and publication of recordings of standing commissions and meetings of standing commissions of local councils. This requires a clear algorithm of actions for local government bodies.
Important legislation changes. Mykhailo Shelep emphasised that on 22 February 2024, Law of Ukraine No. 3590-IX was adopted, which introduced changes to the Law “On Local Self-Government in Ukraine.” This Law strengthens the requirements for ensuring transparency of local councils and imposes additional responsibilities on local government bodies, among which there are the following:
- Mandatory video recording of plenary sessions of the council and meetings of standing commissions.
- Publicizing and preserving video recordings of these meetings.
- Broadcasting of plenary sessions of the council meetings and meetings of standing committees (the provision will come into force after the end of martial law).
- Publication of draft agendas for meetings of standing committees.
“By 15 August 2024, all local government bodies were obliged to adapt their local acts in accordance with this Law,” the advisor emphasised.
Presumption of openness of information; Oksana Vashchuk-Ohdanska, a U-LEAD expert on access to public information, emphasised that Ukrainian legislation is based on the principle of openness of information:
“What is the presumption of openness of information? Public information is open, except in cases established by law. The presumption of openness of information during martial law has not been cancelled!”
The Law of Ukraine “On the Legal Regime of Martial Law” does not contain direct restrictions on the disclosure of public information or consideration of requests. Local government bodies must act in accordance with Law of Ukraine No. 2939-VI “On Access to Public Information”.
Restricted information protection. It is very important that local self-government officials are capable to determine which public information can be classified as restricted information. We are talking about confidential, for internal use and secret information, because only access to information from these categories can be restricted.
At the same time, the procedure of information access restriction should be applied only for the purpose of protecting such information and in the manner prescribed by law, and not at the discretion of the administrators. This also applies to video records of meetings, some of which may not be made public under certain conditions.
Procedure for access restriction. In order to protect restricted information that may be voiced during a meeting and recorded on video, several important steps must be taken before the meeting itself. Oksana Vashchuk-Ohdanska emphasises the importance of compliance with the law:
“Access to a part of the meeting video record may be restricted only if the issue that will be considered contains classified information (confidential, for internal use or secret) and “three-part test” is used. In other words, the administrator must provide convincing arguments that the harm from the disclosure of certain information will outweigh the public interest in obtaining it.”
Any restriction of access to information, including the publication of documents or video records, may be carried out only if the requirements set forth in part two of Article 6 of Law No. 2939-VI are met. This is the “three-part test”:
- First, it is required to determine whose interests, as provided for in the law (for example, national security or protection of human rights), may be violated by the certain information dissemination;
- Next, it is necessary to determine whether the disclosure of information may cause significant harm to these interests;
- At the end, it is necessary to prove that the harm from the disclosure of such information outweighs the public interest in obtaining it.
Algorithm of actions for local government bodies when publishing video records. Both “U-LEAD with Europe” experts state that in order to ensure proper implementation of the law on transparency, local self-government bodies should follow the following algorithm:
- Determining the status of information: Local government bodies should evaluate whether the information contained in the draft decisions is classified as restricted information.
- Application of the three-part test: Before publishing drafts of decisions and before considering them at meetings, a three-part test should be applied to evaluate potential damage and determine possible grounds for restricting access to this information. The same procedure will be applied before publishing texts of the council’s decisions and video records of meetings.
- Decision-making on access restriction: Based on positive test results, a decision is made to restrict access to this information: in case of publication, by the responsible official, in case of consideration at a meeting, by the commission or council.
- Video recording of meetings: The whole meeting is recorded. Depending on the technical and organisational capability of the local government, the part of the video record that contains the consideration of the issues on which the decision to restrict access was made is separated from the general video recording. You can hide certain information. Another way is to record two parts of the meeting separately: the part with open and the part with restricted information. The council saves all records for at least five years.
- Publication of a part of the video: the part of the video record of the meeting that does not contain restricted information is subject to publishing by the local self-government body on its official website no later than the day following the meeting.
- Documentation of decisions: The three-part test is not an appendix to the decision, and there is no actual requirement to make it public. However, it must be conducted at each stage of the process of restricting access to information and documented.
Conclusions
In addition to ensuring transparency of their work, local self-government bodies should act in accordance with the requirements of the legislation on the protection of public information with limited access. As Mykhailo Shelep emphasises:
“Our goal is to help local self-government bodies develop clear algorithms for work with restricted information that meet the requirements of the law and include the realities of today.”
By application of the three-part test, local authorities can effectively manage access to information and keep balance between security and transparency. Together with U-LEAD experts, practical recommendations are developed to help with the implementation of these rules. These topics are discussed during open information events on “Restricted Information and local councils meetings video records publication: algorithm of actions for local government bodies”, which are held on Wednesdays.
