Definition of data of public interest

1. Kyiv University of Law of the National Academy of Sciences of Ukraine Definition of data of public interest Yaroslava Danylyuk International law department IL-41 Ukraine Kyiv 2011

2. Public interest? • Citizens in a democracy have an interest in having access to information about the workings of government, its institutions and its officials, both elected and appointed. This interest also extends to private corporations and to voluntary organizations which require the public’s trust. • Individuals holding such office in a public or private institution which seeks the public’s trust should be judged for their public acts, not private ones. ‘Private’ should mean issues to do with personal relations, personal communications, beliefs and past affiliations – always assuming these are within the law - however much these appear to others to be deviant, or immoral, or bizarre.

3. Main principles • The principle of disclosure • Theprincipleofequalopportunityandgovernmentsubsidyofaccess

4. Data of public interest Different countries – different approaches

5. Hungarian model • ‘data of public interest’ shall mean any information or knowledge, not falling under the definition of personal data, processed by an organ or person performing a state or local government function or other public function determined by a rule of law, or any information or knowledge pertaining to the activities thereof, recorded in any way or any form, irrespective of the manner it is processed and its independent or collective character; • ‘data public on grounds of public interest’ shall mean any data, not falling under the definition of data of public interest, the making public or accessibility of which is provided for by an Act on grounds of public interest. • ‘personal data’ shall mean any data relating to a specific (identified or identifiable) natural person (hereinafter referred to as ‘data subject’) as well as any conclusion with respect to the data subject which can be inferred from such data. In the course of data processing such data shall be considered to remain personal as long as their relation to the data subject can be restored. An identifiable person is in particular one who can be identified, directly or indirectly, by reference to his name, identification code or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

6. American vs Hungarian • In the US model we can observe only two notions- personal data and public data (that is the information controlled by the governmental agencies) • The Hungarian model consists of three specific areas- personal data, public data and data of public interest where public data is situated in the centre and includes some parts of the personal data and data of public interest.

7. The Republic of Slovenia • Two separate legal acts!: • Personal Data Protection Act • Access to Public information Act • Public information is all information originating from the field of work of the public sector bodies and occurring in the form of a document, a case, a dossier, a register, a record or other documentary material drawn up by the body, by the body in cooperation with other body, or acquired from other persons.

8. Access to Public Information Act • conditions, necessary to define public information:1. Information must originate from the field of work of the public sector body2. The information must be in the body's possession3. The information must be contained in a certain materialized form

9. The Slovak Act on protecting the personal data • public interest shall mean an important interest of the state persued in the exercise of public authority, which overrides the legetimate interest of the natural person or several natural persons, brings financial or other benefit to other natural persons or to many of them and without pursuing of which an extensive or irrecoverable damages can be caused.

10. Less privacy • Some parts of information that are considered to be personal data can become public information by affecting some issues that present public interest. In this case can be observed the high degree of reasonableness of the concept of the Hungarian model of public sector information and the fact that Hungarian legislation includes the one legal act that regulates both protection of personal data and access to data of public interest.

11. the Republic of Estonia Public Information Act • Public information is information which is recorded and documented in any manner and on any medium and which is obtained or created upon performance of public duties provided by law or legislation issued on the basis thereof.

12. Bulgarian Access to Public Information Act • public information shall be any information relating to the social life in the Republic of Bulgaria, and giving opportunity to the citizens to form their own opinion on the activities of the persons having obligations under this act. • public sector information = public information

13. Bulgarian Access to Public Information Act guarantees the same degree of transparency and disclosure of public information even to the non-citizens of Bulgaria.

14. The Republic of Romania • by information of public interest shall be understood any piece of information that regards the activities or results from the activities of the public authority or institution, regardless of the prop or form of expressing the information.

15. The Inter-American Court on Human Rights • It ruled that in all cases, a restriction of the right of access: ... must not only be related to one of the [legitimate] objectives [that justify it], but it must also be shown that disclosure could cause substantial prejudice to this objective and that the prejudice to the objective is greater than the public interest in having the information (evidence of proportionality). [Claude Reyes et al. v. Chile, Judgment of Sept. 19, 2006, para. 77]

16. Understanding of data of public interest in the Ukrainian legal system {short overview}

17. Information of public interest • part 11 of the article 30 in the Law on information: • “Information with the limited access can be disseminated without consent of its proprietor if this information is of public interest that is it is the subject of public interest and if the right of public to know this information prevails the right of its proprietor to defense”. • part 3 of the article 47-1 of the above-mentioned Law: • “A person can be released from responsibility for disseminating information with the limited access if the court comes to conclusion that this piece of information is of public interest”.

18. Principles developed by European Court of Human Rights concerning the notion of information of public interest in conjunction with mass-media functioning • to report information and ideas concerning questions that present public interest • courts can not function in a vacuum • conducting political discussion • making statements about the brutality of police • presenting a social problem in report • information in a pre-election period must circulate freely • the problems of employment and payment are always of public interest • right to provide information about current events, ideas • actions or inactivity of Government, the same as his errors

19. the Ukrainian courts applied to the practice of European Court of Human Rights before the legal fixing of the notion ‘information of public interest’

20. . the Ukrainian Law on access to public information • public information - displayed or documented information obtained or generated in the process of public authorities discharging their duties, or information in possession of such bodies and other disposers of public information. • The parliament has obligated disposers to present information and make it public; create special structural divisions or designate officials to organize access to public information. • The legislators distinguish types of public information with restricted access: confidential, secret and insider information.

21. But! • some important provisions have beensimply excluded or amended in such a manner that they won’t play such a significant role for the transparency of public authorities’ activities. For example, the provision that defined the notion ‘information of public interest’ has beenexpelled from the final draft adopted on January,13.

22. Moreover! • The above-mentioned act has not entered into force yet. (The expected date – 09/05/2011)