Article 10 and 13.1.
Access to Information and Participation of Society

Overarching Law on Access to Public Information
The transparency and openness of public authorities (i.e., all government bodies of all branches of power, local self-government bodies and their officials and employees) and, accordingly, the implementation of everyone's right to access public information are ensured at the constitutional, law and by-law levels. Since 2011, the Public Access to Information Law of Ukraine (Law on Access) is in force. It is the overarching law in the sphere of access to public information administered by holders of public information. The law incorporates international standards on access, including the provisions of the Council of Europe Convention on Access to Official Documents (in 2020, Ukraine ratified the Tromsø Convention).

Overriding public interest is the guarantee against restrictions on access to information, i.e., information of public interest. A holder can restrict access to information under the three-part test. If it is activated, the information is considered confidential, privileged, or official. By law, the dissemination of restricted information is not punishable if it is judged by a court to be of public interest. However, the subjects of power are envisaged to be criminally punished for their disclosure of state secrets, even if such information is of public interest. If the document contains information with restricted access, the part of the information that is not restricted is provided for review. Ukraine ranks 18th on the Global Right to Information Rating, which speaks to the law’s comprehensive nature.

Appealing
There is no Information Commissioner in Ukraine. Instead, the right to access public information, as well as other human rights, is overseen by the Parliamentary Commissioner for Human Rights (the Ombudsman), which is regulated by a special law. The Ombudsman is appointed for five years and dismissed by the VRU. A complaint to the Ombudsman is free of charge and may be filed within one year after a violation of human and civil rights and freedoms is discovered. The term may be extended for up to two years.

Legislation Provisions on Involvement of the Public in Decision-Making Processes
The involvement of citizens in the development of administrative decisions is guaranteed at the constitutional, law, and by-law levels. For example, the Law On Citizens' Appeals regulates, inter alia, citizens’ participation in and influence on public administration. The authorities are obliged to consider citizens’ appeals, ensure the right to be heard; cancel or amend the appealed decisions, stop unlawful actions, identify and eliminate the causes and conditions that contributed to violations. There are provisions in place that provide monitoring by civil society (through public councils at the bodies), involvement in policy development and monitoring, corruption proofing of acts and draft acts. The Law on Local Self-Government covers application of corresponding instruments at the local level (referendum, general meetings, public hearings, local initiatives, e-petitions, self-organized civil society bodies).

Means for Access to Information
According to the ILI’s survey, (during September-October 2021, by online anonymous questioning 80 representatives of civil society and the media from 21 out of 24 regions of Ukraine, the Institute of Legislative Ideas conducted a survey asking about a variety of aspects outlining the situation in Ukraine over the last two years in terms of access to information, public involvement, freedom of speech (hereinafter referred to as “the survey”)), requests, open online resources, and instruments are the most frequently applied means for access to public information. The communication, directed towards the public and journalists, for ensuring transparency and accountability of the public sector is neither suitable nor adequate. Very few respondents use public officials’ speeches or meetings as their source of public information.

After the start of Russia's full-scale invasion of Ukraine, a number of state institutions removed some public information, including open data on their work, closed state registers, and suspended reporting on their work. The public called for the restoration of access to public information, as this situation has significantly worsened the transparency of the work of state and local governments. According to the World Press Freedom Index, in 2023, Ukraine moved up 27 positions in the media freedom ranking, to 79th place. A survey of journalists on freedom of speech was conducted in May 2023. Among the 132 journalists surveyed, the majority (78%) said that the Russian invasion had increased the number of cases of self-censorship. Among the reasons why journalists self-censor, three are crucial: fear of making mistakes or difficulties in verifying information (45%), their own beliefs (45%) and fear of losing their jobs (44%). Moreover, numerous journalists believe that it is possible to conceal certain information if it is useful or necessary for the state. This motive, combined with the closure of state registers during martial law, which we have described above, may lead to further restrictions on freedom of speech and is quite dangerous, as it is supported by journalists themselves.

Open data helps save taxpayers' money and prevents corruption. Accordingly, the information analysed in this section reflects the situation that existed before the full-scale invasion. 88% of executive authorities publish monthly, quarterly, weekly and annual reports on their websites. Although the authorities keep electronic records of requests for information and publish regular reports on the processing of them, the data regarding this in their reports is quite superficial, since it is limited to quantitative indicators (e.g., total number of requests received, considered, denied).

Citizens are highly active in sending requests for public information. Citizens and their associations are the most active category of requesters (82,6%). Among the possible reasons, there are difficulties in online access to open sources, lack of information or incompleteness of information published, and low awareness of the existence of open resources. Sending an email has become the most popular channel for making requests for information, although in 2016, it was common practice to deny requests received by email. In the context of the COVID-19 pandemic, there was a significant increase in the need for access to digital information, and electronic means of sending requests and responding to them. Requests are a tool for public monitoring. According to the survey, 12% of respondents appealed to law enforcement agencies based on information received on their requests. Responses to requests are often the basis for publicity and investigation by journalists.

The vast majority of public bodies nominally comply with the requirements to publish regular reports on their performance on their official websites and social media pages. The lower-level the body is (e.g., from the ministry to its subordinate bodies, or from the regional level to a village or small town), the less information it publishes. 83 out of 96 executive bodies fulfil their obligations to publish regular reports on their performance on their website, or on the unified state-owned web portal of open data (https://data.gov.ua), access to which is free, and user-friendly. The vast majority of executive bodies (83%) have electronic databases containing information on documents held by them, and they publish them on their websites (73%). Hence, an overwhelming number of local bodies and municipal entities do not publish information, or do not even have a website.

Initiatives of IT tools for access to open data, implemented in Ukraine, are recognized worldwide, and have become possible, in particular, thanks to the Open Government Partnership Initiative, being implemented in Ukraine since 2011. In 10 years, four action plans have been fulfilled, and the fifth action plan is currently being implemented. Ukraine has received numerous awards within the Initiative. The top 10 achievements are recognized to be the access to information in open data format, disclosure of beneficiary owners, е-petitions, е-appeals, ProZorro, DoZorro, and ProZorro.Sale е-systems, е-declarations, open public finance, access to communist regime archives, Extractive Industries Transparency Initiative, and е-services. The ProZorro.Sales won the Open Government Partnership Awards-2021. Open data demonstrates anti-corruption and social impact: it has a positive effect on the detection and cessation of illegal activities, and increases transparency in various areas. There are frequent cases when received or disclosed public information is a reason to appeal to anti-corruption and law enforcement agencies. According to the survey, more than half of the respondents (57%) directed allegations, based on the public information they got, inter alia from open sources, to NABU, NACP, SBI, or the National Police.

Cases of Denial of Access to Public Information, and Other Restrictions
The overall rate of denials of access to public information is relatively low. However, denials certainly often occur in situations that pose risks of corruption or other misconduct. In such cases, the most common reason for denial of access is the unjustified classification of information as restricted. In 2011-2020, executive authorities refused to provide information in response to 4.6% of the total number of requests received (31990 requests out of 702653), while the requested information was classified as restricted information in only 1.3% (9300) of requests. The previously described survey results show that one in three respondents has at least once received a refusal to provide the requested information, citing the fact that the requested information is marked "for official use", "trade secret" or "confidential". One of the reasons for refusals is the lack of knowledge of requesters. 3.3% (22690) of the 4.6% of refusals to provide information (31990 refusals out of 702653 requests) were made on the grounds that the request was sent to a body that does not hold the requested information. The survey results also show cases of refusals for this reason. In addition, respondents mention cases of refusals because the requested information is available in open sources (e.g., on the body's website), or because the body perceives the request as a statement rather than a request, or because the body believes that the law on access to information does not apply to it (e.g., a military unit). There are also cases where requesters perceive a request for payment for copying or scanning services as a refusal to provide access to information.
The survey shows that almost every second respondent has experienced a case where their request needs a charge to be paid; and for every third such requester, such a fee was exorbitant. According to information received from executive authorities, reimbursement of actual costs for copying and printing documents is requested on average by 1-2 times per month. On the one hand, officials complain that there are situations where applicants abuse their rights, thus, charging a fee can serve as a safeguard against, inter alia, “paralysis” of a public body. On the other hand, even if only a few pages need to be printed, public authorities may refuse to provide the requested information until the requestor pays for the copying costs.

Appeals
The number of cases of appeals against waiving access to public information is growing. In most cases, complaints are satisfied.In 2021, compared to the previous year, the number of reports of such violations increased 1.5 times. The survey revealed that every second requester who experienced a waiver appealed against it. In most cases (60% of respondents), their complaints were satisfied.

The most common way to lodge a complaint is with the Ombudsman (68% of those who have complained), one in three files a lawsuit in court, and almost one in five complains to a higher authority in the hierarchy. The Ombudsman is said to be independent, but its capacity needs strengthening. Regular annual reports of the Ombudsman lack uniformity in structure and information delivery. Although the Ombudsman addresses recommendations to state and local bodies, there are no mechanisms and instruments to guarantee their implementation. Even though assessing and rating of state and local bodies according to methodology are believed to be the right direction of development, the one-time initiative of such rating on the criteria of openness, transparency, accessibility, etc. ended in 2015. Regular rating could have become a good practice. The Ombudsman lacks staff and there is a constant high turnover of personnel. Although the Ombudsman received three times fewer complaints against violations of the right to access to information in 2020 than it did in 2019, the protocols drawn up in 2020 accounted for 5% of the total number of complaints received.

Involvement of Civil Society
During 2016 – 2020, the number of civil society institutions increased significantly. Online resources of state bodies, as well as personal contacts, are the most common sources of information about the initiation of public consultations, discussions, etc. by the authorities. The survey shows that 38% of respondents most often learn about start of public consultations and discussions from the authorities’ websites, 28% from their social networks, and 29% from personal contacts.

The more corruption risks are in the sector, the less the public is engaged in decision-making processes. For example, the Ministry of Strategic Industries was stalling its Public Council’s establishment, and was reluctant to engage the public in its discussion of its draft strategic documents. The public appeal to the Cabinet of Ministers ended up with the return of the issue to the level of that Ministry, which did not resolve the situation in essence. A common problem of not only the executive but also the legislative branch is the general misunderstanding of the essence of work with the public and other stakeholders.

In the vast majority of cases, barriers to the engagement of civil society are encountered in the regions; citizens are reluctant to complain about non-admission to decision-making, or about violations of public engagement rules. According to the survey, 84% of respondents, in the 2019-2020, did not appeal against any state/local authority’s decision made without public discussions, consultations, etc. On the contrary, 16% appealed against such decisions. Only 4% of appeals resulted in revoking or revising the decision, and in 12% of cases appealing did not produce any changes. At the same time, 61% of the respondents to the survey indicate that, in the 2019-2020, they have not been hindered by the authorities from engaging in public consultations which they plan to participate in. Despite the small number of cases, there are some good practices of civil society involvement. For example, the Ministry of Community and Territory Development of Ukraine has drafted a National Strategy for Civil Society Development in Ukraine for 2021-2026, and NACP has developed a draft of updated Anti-Corruption Programme for 2023-2025 with an impressive civil society involvement by means of online discussions that, given the restrictions caused first by COVID-19 restrictions and then by the war, have proved to become an effective way of civil involvement.

Implementation in practice after State evaluation.