Igor Rozkladai (on the right)
Igor Rozkladai, expert of Kiev-based Centre for Democracy (CEDEM) tells about Ukraine’s ratification of the first binding international treaty on access to information – the Council of Europe Convention on Access to Official Documents.
The Access to Information Programme would like to publicly congratulate Ukraine on being the 10th country to ratify the Council of Europe Convention on Access to Official Documents (referred below as “the Convention”). It is also known as the Tromsø Convention, named after the city in Norway where it was adopted by the Council of Europe (CoE) and has been opened for signing since 2009.
The Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which 10 member States of the CoE have expressed their consent to be bound by the Convention. Up until now it was signed by 18 countries, 9 of which have completed the ratification process: Sweden, Bosnia and Herzegovina, Estonia, Finland, Norway, Moldova, Croatia, Montenegro and Lithuania. On June 24th it was Armenia that signed the document. To this day, Bulgaria still didn’t sign the Convention.
On May 20, 2020, at a regular sitting, 305 Members of Parliament (MPs) from the Verkhovna Rada of Ukraine voted for the ratification of the Convention. In order for this to happen, one leading Ukrainian NGO has been actively supporting and advocating for the Convention ratification since 2016: the Kiev-based Centre for Democracy (CEDEM). CEDEM is a think-and-act tank which has been working in Ukraine’s civil society sector since 2005, channeling its efforts for development of independent media, support of civic platforms and movements, and building a legal state in Ukraine.
Igor Rozkladai is co-founder and main expert on media law of CEDEM. He is expert of the Reanimation Package of Reforms, which is the largest coalition of leading Ukrainian NGOs.
The interview with Igor Rozkladai was taken on May 27, 2020 by Diana Bancheva (Communications Officer at the AIP), days after the news was made official by the CoE.
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- Hello, Igor! Congratulations on Ukraine being the 10th country to ratify the Tromsø Convention which makes it possible for the Convention to come into force. AIP has been advocating for the signing and ratification of the Convention for 10 years already. What is the secret behind Ukraine’s success?
If you see who is ratifying the Convention, I could say it’s two types of countries: either post-Soviet states with bad historical traditions of state censorship and monopoly for truth, or states with a strong heritage of openness like Sweden, Norway, Finland. A lot of other countries are still thinking, because they don’t understand the benefits of ratifying the Convention. This is the reason we from CEDEM decided to push this process, because in fact Ukraine implements 90% of the Convention’s provisions in our law, except for only one problem - we still have a big issue with the independent authority. At this moment, the role of exercising independent and effective control over access to public information (ATI) belongs to the Ombudsman, but it’s not a classical Ombudsman function. The Ombudsman’s office doesn't have that many staff members or that many powers as they need. This is why we hope for some new independent body to be established. But there is also the question “how”, and it’s a question of the Constitution. In Ukraine in general it is very difficult to create any independent authority. It is a question of who will have the right to nominate, of how to establish an independent authority. Maybe that’s the biggest problem for us. We decided that the ratification of the Convention will be great for our region, because a lot of ex-Soviet countries face the same problems of security tradition and of denials of access to some information - especially if the information requested is related to land ownership, real estate, money and public funds.
- What were the main steps you undertook?
We from CEDEM started advocating for the Convention ratification in late 2016. It was signed by Ukraine in 2018. Then we tried to push it through Parliament but we were blocked by one small political faction and their lack of support. We understood that some of our politicians are against this Convention - it’s a very interesting case. I presume it is so because of their ties with owners of big energy companies, of huge businesses and factories. And of course, they don't want to be transparent because there are a lot of ATI cases related to ecology, for example. So, they voted against it.
Last year (2019) we asked the newly elected Parliament to restart the ratification process, and they sent a letter to the Ministry of Foreign Affairs, which sent documents to the Ministry of Justice... It was a very long bureaucratic process. Finally, the President sent the draft law to Parliament. It passed very quickly through the Parliamentary Committees and was voted by constitutional majority – this also was a big surprise for us because we always believed to have 226 votes (which is the minimum), but we had 305 votes and we were really shocked.
Next steps for us will be to see the follow-up of a draft that we sent two days ago to the President for signature (Editor’s Note: The Law was published on June 10 and went into force on June 11), then it goes to the Ministry of Foreign Affairs and then there must be a formal procedure of physically sending the ratification documents to Strasbourg. Only after these steps can the 3-months procedure be started. We believe that maybe from September-November the Convention will enter into force.
“Maybe”, since there is a problem with aircrafts now because of Covid-19. But the Minister of Foreign Affairs knows about this case and he is personally interested in it, and I suppose this will help finalize this whole bureaucratic procedure by the end of 2020.
- You said the process started in 2016, two years before the Convention was signed by Ukraine?
We did attempts before 2016 – a couple of years after the Convention was adopted and signed, so it was around 2012. We made public appeals for Ukraine to do something, but nobody cared. Only in 2016 when David Goldberg  asked us why we don’t try to renew this process, we asked the Ministry of Justice. Luckily, the Deputy Minister of Justice in person did a lot to help us pass all these bureaucratic procedures because we needed to send drafts to 10 Ministries and gather their opinions in a very long process. Since he was a very modern man, responsible for the international aspects of the Ministry’s work, he helped us a lot and finally Ukraine signed the Convention in 2018.
- And it also took 2 years to take it to ratification?
It took two years because of the elections. Last year was election year, so we had no chance to pass any draft. We failed the first time in 2018. It was a shock, because we had contacts with a lot of MPs. They were also representatives of Ukraine in the Parliamentary Assembly of CoE and they gave green light to the ratification. But when the voting day came, we faced a challenge that nobody could predict. It was really a bad surprise.
- What were the specific factors that made the ratification possible?
First of all, it was very important that we didn’t need to pass any specific legislation. Normally, when you ratify a Convention, you also need to have a draft law which implements the Convention. In this case, we didn’t need a draft law because the Law of Ukraine on Access to Public Information (adopted in 2011), was de facto passed on the basis of Recommendation 2002  and the Tromsø Convention.
The second factor which helped us was some PR for our country. For politicians, it is very important what benefits they will take from this passing of the Convention. Let’s say that the “selling” of this story was very important for Ukraine to enact the Convention – for politicians it was very tasty, and they took it in both parliaments. Frankly speaking, a lot of the MPs do not really care what this Convention is about, but they care to have more positive news from Ukraine. I think it is more or less general picture – you can’t be an expert in all areas.
Talking about the advocacy process, first of all it was publicly appealed by numerous NGOs. Second, we established direct communication with responsible persons in Ministries. In the last two years, I contacted on every step of the process the Ministry of Justice and the Ministry of Foreign Affairs. I even tried to reach in some way the presidential administration. This whole communication process began with the parliamentary Committee on Humanitarian and Information Policy with which we are also in contact. Let’s say I sold them the idea that it will be a great success story for Ukraine, and they understand that this is a really easy and good story. The Parliament started operating in late August and in early September they sent requests to the Ministry of Foreign Affairs.
It was a really good combination of proper people, proper timing and support. Of course, thanks to our donors as Swedish SIDA, Internews – their long-term support is also important to give us resources to operate and advocate. Now we have in Parliament a majority of MPs who are able to support the ratification of the Convention, and the Humanitarian Committee in Parliament is headed by them - this also helps.
Of course, the assistance from the CoE Office in Ukraine and their “international voice” was also essential. They explained why the ratification of the Convention is important, and this is also very helpful in such advocacies. Because a lot of people were initially against this idea - those are the people who still want to have Ukraine divided - and only a huge pressure both from internal and external factors helped to pass this reform.
- What is the role that CEDEM played in this process?
We were among the “pushers” of this Convention, we initiated all this. Frankly speaking, when David Goldberg asked us “Are you able to do it, why don’t you try?”, we decided to draft all these appeals and we started talking with MPs. All the advocacy was on us, it was our job. We were not only negotiating with the correct people - we were also reminding them of the different steps in the process. It is important to know on what stage we are, to explain to them, because the deputy ministers especially have a lot of work and of course the Convention is not a priority for them. From time to time we had to kindly ask: “Hey, we have all those opinions by Ministers, could you take a look?”. It’s part of the advocacy.
- What were the main challenges?
The main challenge was that it was all very unpredictable in Parliament. As we saw in 2018, you can discuss with MPs, you can have green light from them, but then you have some politicians who are trying to stop this process and you cannot even understand why. On the voting day I reached some members of this faction and I asked: “What is the case, what is the problem?” and they told me nonsense. I could understand it is not about the text of the law, it is something else. As we predicted, it was somehow related to oligarchs and they disagreed with something, which we can’t understand, but they blocked this process. And yes, this was the biggest challenge.
In every country there could be different challenges, but I think if the Convention will be enacted in Ukraine this year, it will be easier to advocate even for you in Bulgaria. I think you need to use jealousy as a type of advocacy, like saying “We could have been the crucial 10th country, why Ukraine?” and so on.
I think every country needs to understand who the players are, to make a classical stakeholder analysis: who is pros, who is cons, who is neutral. And also, to try to reach CoE and other international organizations for support, for them to explain why the ratification is important. Maybe try to reach Ukrainian voice and experience - we are a very experienced country in access to public information, and we have a strong voice in the expert group under the Convention. Try to find these positive arguments for you. Expert group and jealousy I think are maybe two steps. Sometimes it’s working - we try to use very different techniques. Because especially when it comes to freedom of information, it is not something that every Parliament or every government wants to accept. It’s about responsibility and openness, so they are always trying to fight it. In this case, one needs to be quite artistic and find some non-traditional methods in order to involve these institutions.
- What unconventional methods did you use to convince the interested parties?
In our case, it is a specific trait of Ukraine that we have a very direct contact with MPs and governmental authorities. We can just write in the evening to the Deputy Minister via Messenger or send additional arguments to the politician during important debates. It may be some Ukrainian specific, because we are a very “Facebook country”. All of us are sitting on Facebook and it is not just about children and followers, but all businesses and of course politicians. All public events happen on or via Facebook. You don’t need to go to the authority to have all these official procedures, especially if you are well-known expert in your area. You just go to Facebook and you say: “Hey, we have a problem, let’s resolve it.” And it works. But maybe it is our specific, maybe other countries don’t have this quick and informal channel of communication that really speeds up some processes.
- How was the news on the Tromsø ratification received by the Ukrainian media?
It was a little bit of a bad day for us, because on this day the President held a press conference marking his first year in office. This was more important news for the country than the Tromsø ratification. In this case, we failed a little bit, but it was not under our control, because we found out only two days earlier that the draft will be voted. That is why I am saying that Parliament may be the bottleneck for such a process, that there are many things you cannot predict. It appeared in the news of course, but not so much as we wanted. Perhaps there will be a better stage for media coverage when Ukraine sends the official documents to Strasbourg, or when the Convention is enacted.
It is also important to know how the expert group will be created . We need to understand how this expert group will be created, how our countries will nominate experts for the Group of Specialists. This mechanism of the expert group, I think it is one of the most useful mechanisms in the Convention.
In general, especially in Ukraine, this is a very important advocacy - to pass the law, it is 10% of the effort. 90% of the work gets done afterwards. We see it in the Law on access to public information. We have been fighting for it for nearly 6 years, but we are still working on implementation, because a lot of problems are still present. A lot of people are moving inside public authorities, so you need to repeat the same things every time you have new people and it is a very long process.
- It is a permanent effort.
Yes, exactly. It is the same as the Convention. It was a huge challenge, but you have to make sure that when it is enacted, it will really be a working document, an international document.
We are also working to use the ratification of the Convention to change our archives legislation which is very outdated. We have a lot of problems with access to archives and especially this grey zone when public documents are getting moved to the archives. It is unclear which legislation must be used in this case.
I have a good relationship with the new head of the State Archives System and he told me that we really need to pass a new law to move this system forward, and of course we can use as an argument to use the provisions of the Recommendation of the CoE 2000 N13 which says that the archives legislation must be synchronized with FOI and with personal data protection. We want to use both the Convention and this Recommendation as an argument to change the law and to copy as many principles as possible from the Law of Ukraine on Access to Public Information to the archives legislation. I did it in the so called decommunization law, I wrote with my colleagues a draft law on access to archives from KGB and other bodies of totalitarian regimes. The study visit we had in 2012 in Bulgaria organized by the AIP was very helpful. We visited the Commission on the former State Security Services Archives and the State Commission on the Information Security.
I also used the Polish experience. But we have some specifics in Ukraine, because Russia stole a lot of documents, especially from the 70s and 80s, and now our archives are more from the 1917 to 1960s. So, we decided to use the Czech model and to open as much archives as possible and now the archives of the State Security service are one of the most open archives not only in Ukraine, but also among our neighboring countries.
- Do you expect that the Convention would impact any transparency practices in Ukraine?
We have from time to time some attempts to amend FOI law. There is a small risk that it will be used for negative amending, but on the other side we have quite a strong civic society in this area and we will block, or at least minimize, any damages that could appear. I am not worried about this. I worry more about processes that belong to Personal data protection because the drafting is not transparent enough.
Personal data protection in Ukraine is mostly used not to protect personal data, but not to provide information. That is why I am really not happy about GDPR - not because it aims at protecting the people, but because in such countries like Ukraine such instruments could be used to close the access to a lot of types of information. I think this is a bit bad policy from Europe. They are considering countries with strong democracy, which can provide adequate protection of personal data. But if you have a weak democracy and you understand Eastern Europe’s tradition of closing information (especially related to public funds), then you need to have some reservations about how this kind of Personal data protection policies will actually work.
We also worry about another draft law – about the State Secrecy, which is (as I know) being developed with the initiative of the Intelligent Services. And frankly speaking I am not happy about this at all.
- Is it related to the protection of classified information?
Yes. I worry that their draft could not be synchronized with FOI law, and that in one of the additional provisions I saw, they are trying to classify information about people who were working with Soviet special services. This information is currently open, but there is an attempt to classify it. And they are trying to do it through the law on security, not through access to information laws.
We understand that it’s maybe just a corporate interest of not wanting to classify any information on cooperation of our agents. I don’t know what is going on with this document these days - maybe because of Covid-19 it is not on the agenda now. But we need to be watchdogging and looking over this process.
- These are challenges we all face in our countries.
Yes, for post-Soviet area it is a similar case, even with some specifics in the different countries. In our case one of the challenges now is that a lot of attempts for example to classify information that is related to some procurements in the army. They try to say that it is because of the war (the Crimean conflict), and we have some scandals on this case.
The central and biggest challenge of course is the independence of authority. We still have no proper decision and our present Ombudsman is much weaker than the previous one – it’s about the capacity of such a body and leadership, of course. We see that it is not such an assertive style which the previous Ombudsman had. But to create a new regulator is also a challenge, because nobody knows how to do it, and in order to create something independent, we need to change the Constitution. And this is a very long and difficult process.
- How long will it take for such changes to become effective?
It is not predictable at all. For example, I am working on the draft of the media law, we started working on it in 2012 and now we are doing the 4th attempt to pass it through Parliament. We rewrote it for the fourth time because the new Parliament demanded of us to make some quasi-codification: we merged the law on the press, the law on audiovisual media and the law on the National Council of Television and Radio Broadcasting in one single law. This draft is about 180 pages - it is a huge document. We decided to use a procedure of second-first reading: it means that when a draft has not passed the first reading, it gets turned back to initiators and they can re-initiate it. MPs are planning to register it in early July and then we will try to pass the first reading this summer. If the political situation will be more or less stable, maybe in September we will pass the second reading. But again, it is very unpredictable because the political situation could be more unstable in Autumn and a lot of factors e.g. COVID-19 could “help”. A lot of people in this faction represent different interests and I think that at some point it will be either some hindrance, or they will be not able to pass such a big piece of legislation.
- What would be the benefits from Ukraine’s ratification for other states?
From our region only Bosnia and Herzegovina, Hungary and Montenegro have ratified. Slovenia only signed.
I really believe that Bulgaria will join the Convention in the future. You are really experienced, and you share a lot of knowledge with others - you helped us to pass legislation. Such countries must ratify because you have a lot to share - best practices - or how to balance different interests - especially on the borderline between Personal data protection, FOI and public interest. Just like it happened with the Bulgarian State Security Archives case – the example is very useful for us.
I think it is also important in case of improving legislation to have some influence from countries with stable democracies for developing democracies.
 David Goldberg is an academic and right to information activist, then director of the Campaign for Freedom of Information - Scotland.
 Group of Specialists on Access to Official Documents. Section II, Article 11, Para 5: “The election procedure of the members of the Group of Specialists shall be determined by the Committee of Ministers, after consulting with and obtaining the unanimous consent of the Parties to the Convention, within a period of one year following the entry into force of this Convention.”