Communicated on 15 December 2020 Published on 11 January 2021

FIFTH SECTION

Application no. 14957/13 Volodymyr Anatoliyovych TORBICH against Ukraine lodged on 2 February 2013

SUBJECT MATTER OF THE CASE

The application concerns an alleged denial by the State authorities of access to information of public interest in reply to two requests from the applicant who was a head of the information agency “ Rivnenske Agentstvo Zhunalistskykh Rozsliduvan ” (Riven Agency of Journalistic Investigations).

First request

On 26 October 2011 the applicant submitted an information request to the Head of the Rivne State Administration (RSA) asking to provide him with the information about the bonuses ( премія ) paid to the Head, his deputies as well as all RSA staff members in 2009-2011. The information was to be provided in an impersonalized manner but by each position. The applicant relied on Article 6 of the Law on Access to Public Information which provided that access to information about use of budgetary costs could not be limited. According to the applicant, at the time of submission of the request he had been conducting an investigation into the use of budgetary expenditures by the municipal authorities.

On 31 October and 1 November 2011 the applicant received replies from two RSA departments: the Department for Economics and Investment replied that the information requested could not be provided as it would breach the legislation on the personal data protection, while the Department for International Cooperation and European Integration provided generalized information for its 10 staff members.

As transpires from the case-file , on an unspecified date the applicant also received a reply from the Deputy Head of the RSA containing information about the bonuses paid to the Head, his deputies and staff members. The latter only contained the amounts paid without naming the positions of the persons concerned as disclosing such information would have been in breach of the personal data protection legislation.

The applicant challenged those replies before the courts claiming that he was unlawfully denied access to the information which was public.

Those claims were rejected by the local and appellate courts on 14 February and 11 June 2012 respectively. The courts advanced the following reasons for their findings: i ) that as the RSA ’ s official web-site and the information stands in its premises contained a detailed list of its staff members by department, providing the information as requested by the applicant (i.e. by each position) would make it possible to easily identify a person concerned and that would be in breach of the of the personal data protection legislation; ii) that information about financial status of a person could not be disseminated without this person ’ s prior agreement and that only income declarations of the State officials were public, but the applicant did not request declarations; and that iii) the applicant submitted his request in his capacity of a representative of the information agency and not in his personal capacity and thus the respondent did not violate any of his rights.

On 3 August 2012 the High Administrative Court refused to open cassation proceedings finding that there was no evidence of breaches of material of procedural legislation by the lower courts and that the applicant ’ s cassation appeal was ill-founded.

Second request

On 18 June 2013 the applicant submitted two information requests with the Head of the Verkhovna Rada of Ukraine (the Parliament of Ukraine) asking to provide him the copies of income declarations for the year 2012 of 22 Members of Parliament (MPs).

By letter of 8 July 2013 the applicant was informed that the income declarations of the MPs could not be provided to him without agreement from the persons concerned as otherwise that would be in breach of the personal data protection legislation. Therefore, 17 MPs were requested to provide their agreement. The declarations of 3 MPs, who had agreed to make their declarations accessible, were provided to the applicant. Finally, he was informed that declarations of 4 more MPs had been published in the official gazette “ Holos Ukraiiny ” (Voice of Ukraine).

By letter of 1 August 2013 the declarations of 5 more MPs were provided to the applicant.

The applicant challenged before the courts the refusal to provide him with the declarations of all MPs he mentioned in his request. He relied on Articles 6 and 7 of the Law on Access to Public Information and the Law of on Prevention and Fight against Corruption according to which the information contained in the declarations of public officials could not be restricted.

On 19 February 2014 the Kyiv City Administrative Court, hearing the case in abridged proceedings, rejected the applicant ’ s claims. It did not provide detailed reasoning as to why it rejects the applicant ’ s claims but merely listed relevant legislation and facts.

The applicant appealed claiming, inter alia , that the court ’ s decision lacked reasoning.

On 1 April 2014 the Kyiv Administrative Court of Appeal upheld the lower court ’ s judgment. The court reasoned that as the applicant requested the copies of declarations (which contained personal data), and not the respective information from the declarations, his request was rightly rejected. This decision is final and subject to further appeal .

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s freedom of expression, in particular his right to receive and impart information, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?