Legal basis for restricting access to public information

Keywords: open access, public information, confidential information

Abstract

The article is devoted to pressing issues of real ensuring the exercise of subjects’ information rights to free access to information of public interest. It is emphasized that the proper organization of the turnover and the legal protection of the transparent dissemination of information are the basic foundations for achieving the goals of the socio-economic and cultural development of the country, improving the quality of life. After all, the ability of each member of society to obtain data on public relations in the society guarantees the strengthening of a single information space, minimizing various negative manifestations in the activities of the authorities, such as abuse, negligence, corruption.

The content of Ukrainian legislative presumptions of openness of public information is analyzed in the paper. As a general rule, such information is open. Exceptions to this rule are laid down by law, in particular, the types of information that may be restricted - confidential, classified and proprietary information, and a set of requirements that are compulsory to restrict access to such types of information. The stated restrictions on the turnover of certain data are quite weighted, they can only take place when the fundamental principles of the state and national security, inalienable fundamental human rights, are affected.

There is a serious problem related to the misapplication of information by the public stewards of the information law requirements. Examples are given where state and local government officials make every effort to conceal their activities, thus concealing their mistakes, and often abuses. This is accompanied by their support from national judiciary. The normative and practical principles of organizing the public activity of the authorities regarding compliance with the law in limiting access to classified, confidential and official information are considered. A clear list of reasons for attributing information to the category of restricted persons is defined. It also examines the essence of the legislature’s basic democratic approach whereby any possibility of restricting access to information can arise only when the restriction is made solely in the interests of national security, public order or the protection of the rights of others; disclosure of information may cause significant harm to those interests; the harm of disclosing such information outweighs the public interest in obtaining it. It is emphasized that the law indicates the mandatory presence of a set of these features.

In addition, the paper concludes that even the indisputable recognition of certain information as official or even secret or confidential does not mean that it cannot be provided for use by a specific person. Information cannot be denied only because the relevant type of information is included in the list of information that constitutes business information. In the case of public need for this information, they may also be made publicly available: in each case where a particular information is given the status of "official use" of the information manager, the so-called "three-part test" must be applied. The content of such testing and its specific manifestations are analyzed. The refusal to satisfy the request for information must be reasoned, that is, the refusal of the information manager is obliged to justify the existence of grounds for restriction in access, which constitute the content of the "three-part test". The following are indications of good and fair practice in the commentary field applied by the European Court of Human Rights.

References

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How to Cite
Guyvan, P. (1). Legal basis for restricting access to public information. Law Review of Kyiv University of Law, (2), 126-131. https://doi.org/10.36695/2219-5521.2.2019.22
Section
The issues of civil law, commercial law, labour law and social security law of U