The issue of releasing public information in wartime remains a priority for the local self-government. The legal framework and the balance between transparency and security were discussed at the info session held by the U-LEAD Programme for the municipalities of Donetsk, Poltava, Sumy, Kharkiv and Cherkasy oblasts.
Article 34 of the Constitution of Ukraine guarantees everyone the right to freely collect, store, use and disseminate information. However, along with this guaranteed right, this article allows for its restriction in the interests of national security, territorial integrity or public order. Speaker at the event, Tetiana Korobka, Adviser on Decentralisation and Local Self-Government of the Regional Office of U-LEAD with Europe in the Sumy oblast, told more about this.
According to her, although the scope of public information to be disclosed differs across the regions depending on the security component, the local self-government bodies still have the obligation to disclose public information. As Ms Korobka emphasised, the changes in the legislation only partially changed the public information management procedures, and the “three-fold test” requirement is more relevant than ever.
“As for martial law, there is an acute need to maintain a balance between transparency and security: should the municipality be as close as possible to the people, or would the dissemination of information threaten their life and health and the territorial integrity of our state? Just like in peacetime, the key condition for the potential restriction of access to public information is the application of the so-called ‘three-fold test’,” the adviser said.
What is the “three-fold test”?
As Tetiana Korobka explained, the “three-fold test” is a way to determine whether to restrict access to public information provided for in Article 6(2) of the Law of Ukraine “On Access to Public Information”. When applying the “three-fold test”, answer its component questions consistently.
What are the questions of the “three-fold test”?
First: Is the access restricted in the interests of national security, territorial integrity or public order to prevent disorder or criminal offences; for the health of the population, to protect the reputation or rights of others; to prevent the disclosure of confidential information; or to maintain credibility and impartiality of the judiciary? Second: Can the disclosure of information cause significant harm to these interests? Third: Does the harm caused by the release of such information supersede any public interest in receiving it?
According to the speaker, the list of information that may be of public interest is not exhaustive. This is information that indicates a threat to the state sovereignty and territorial integrity of Ukraine; that ensures the realisation of constitutional rights, freedoms and obligations; that indicates possible human rights violations, misleading the public, adverse environmental and other negative effects of actions (inaction) of individuals or legal entities, etc.
How can municipalities determine whether to restrict access to information?
When answering the questions of the “three-fold test” step by step, the municipality will analyse the information and make an appropriate informed decision. If the answer to all questions is “yes”, i.e. if a certain interest (the interest of national security, territorial integrity or public order) is threatened by the disclosure, if the interest may actually be seriously harmed by the disclosure, and provided that the harm caused by the disclosure outweighs the public’s right to know some information, the access to the information may be restricted.
Therefore, the prerequisite for determining whether to restrict the information is the “three-fold test”. Its balanced and consistent application in each specific case will provide a reasoned answer to the local self-government as to which information should be made public and which should not.
“Keep in mind that timely released information affects citizens’ decision-making, which is important for their life and health,” the adviser said.