Review prepared by the Higher School of Advocacy of the National Bar Association of Ukraine.
Classification of information as restricted does not automatically justify refusal to provide information
📌Ruling of the Supreme Court in the composition of the panel of judges of the Cassation Administrative Court dated February 14, 2025, in case No. 420/20384/23
The Supreme Court noted that the provisions of the second part of Article 6 of Law No. 2939-VI impose requirements for restricting access to information, rather than grounds for granting such access. This approach is based on the fact that Article 1 of this Law establishes a presumption of openness of public information, access to which may be restricted only if the information provider justifies it based on a “three-part test.” The burden of proving that access to information may be restricted lies with the public information provider.
Therefore, classifying information as restricted access is not an automatic basis for refusing to provide information. Providers are required to apply the “three-part test” when considering a request. Unjustified refusal to provide information is illegal.
Article 6 of this Convention defines forms of access to official documents:
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When providing access to an official document, the applicant has the right to choose whether to view or obtain the original or a copy, or receive a copy of the document in any available form or format of their choice, unless the expressed wish is unjustified (first part);
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In case of restricting access to certain information contained in an official document, the state authority must, nevertheless, provide access to the rest of the information contained therein. Any omissions in the document must be clearly marked. However, if a partial version of the document misleads or makes no sense, or unreasonably burdens the authority with disclosing the rest of the document, access may be denied (second part).
Applying these approaches to the circumstances of this case, it should be noted that INDIVIDUAL_5, when requesting access to the specified information, justified it by the purpose of obtaining information of public interest, which, according to the cassation appeal evidence, is information about the work activities of state official INDIVIDUAL_2, which cannot be classified as confidential information, while the nature of his requests did not concern such personal data of INDIVIDUAL_2 as her date of birth and education.
At the same time, by refusing the applicant to provide a copy of the requested document, the State Tax Service in the Odessa region, as the provider of this information, referred only to the need to protect such personal data of INDIVIDUAL_2 as her date of birth and education contained in her employment record, the respondent did not consider the possibility of providing the requested copy of the document related to the essence of the requests, closing the specified personal data.
Taking into account that the resolution of the dispute in this case depends on the application of substantive law norms, and in the issue of applying and interpreting substantive law norms, the Supreme Court is the court that has full jurisdiction, the Court, in accordance with the rules of Article 351 of the Code of Administrative Court Procedure of Ukraine, considers it necessary to make a new decision without referring the case for a new judicial review, by which to satisfy the claim in part of recognizing the unlawful refusal of the State Tax Service in the Odessa region to provide INDIVIDUAL_1 with a certified copy of the employment record of the head of the unit for the prevention of money laundering activities related to the legalization of income obtained by criminal means of the State Tax Service in the Odessa region INDIVIDUAL_2.
When choosing a method of protection, the Court takes into account that INDIVIDUAL_5 in the claim requested the State Tax Service in the Odessa region to provide the plaintiff with a certified copy of the employment record of the head of the unit for the prevention of money laundering activities related to the legalization of income obtained by criminal means of the State Tax Service in the Odessa region INDIVIDUAL_2. However, based on the reasons for which the Court concluded the unlawfulness of the challenged refusal, according to which this refusal was not in accordance with the provisions of Law No. 2939-VI, the Court believes that the proper way to protect the violated right of the plaintiff to obtain the requested information is to oblige the respondent to reconsider the request for public information with due regard to the requirements of Law No. 2939-VI, taking into account the court’s findings set out in this ruling. Under these circumstances, the claim is subject to partial satisfaction.
🔗Source: https://reyestr.court.gov.ua/Review/125173110
The proper respondent is the entity to which the information request was submitted, not the official acting on behalf of that entity
📌Ruling of the Supreme Court in the composition of the panel of judges of the Cassation Administrative Court dated March 10, 2025, in case No. 420/29839/23
The case materials confirm that INDIVIDUAL_1 requested public information from the executive committee of the Tairovska village council, in which he asked for information on vacant (unoccupied) land plots of state or communal ownership located within the jurisdiction of the Tairovska village council in the territory of the Tairove urban-type settlement (not exceeding 0.15 hectares), the village of Sukhyi Lyman (not exceeding 0.25 hectares) and intended for the construction and maintenance of a residential building.
From a systematic analysis of the legislative provisions cited, it can be seen that executive bodies, in accordance with their competence, are obliged to possess information about communal or state-owned land plots not provided for use, which can be used for construction to realize the right to receive ownership for the construction and maintenance of a residential building, economic buildings, and structures. They also remain the custodians of this information after it is entered into the urban planning and state land cadastres if it is in their actual possession.
The Court notes that the aforementioned request of INDIVIDUAL_1 did not concern matters of decision-making on the transfer of state or communal land to private ownership, granting permits for land surveying documentation for such free transfers, which fall within the competence of the village council.
Given the circumstances, the Court agrees with the arguments of the plaintiff that the information owners that are of public interest (socially necessary information) are obliged to provide it upon request to interested parties.
📌Ruling of the Supreme Court in the composition of the panel of judges of the Cassation Administrative Court dated March 20, 2025, in case No. 440/4399/22
At the same time, the Court agrees with the plaintiff’s arguments that the participation of non-governmental non-profit professional organizations, including INFORMATION_1, in supporting the Armed Forces of Ukraine in the conditions of Ukraine’s desperate struggle with the aggressor for survival may be a matter of public interest, especially since information about such support INFORMATION_1 distributed independently.
The Court also agrees that the dissemination of the requested information could contribute to discussions on issues of concern to the legal community and society as a whole; informing about the activities of the bodies of legal self-government in terms of managing funds accumulated for the maintenance of bodies of legal self-government, including annual contributions from lawyers.
In this context, the Court also notes that the plaintiff as a lawyer is a member of INFORMATION_1. However, according to subpoints 5.1.7, 5.1.8 of point 5.1 of the Statute of the Non-Governmental Non-Profit Professional Organization “National Bar Association of Ukraine,” members of INFORMATION_1 have the right to discuss any issues related to the Organization’s activities, submit proposals to INFORMATION_1 for improving its activities; receive full and accurate information about the activities of INFORMATION_1.
Therefore, the information requested by the plaintiff is not restricted access information, and its dissemination could not harm national security, territorial integrity, or public order, reputation, or rights of other individuals, or other protected interests.
Based on the circumstances presented, the Court concluded the unlawfulness of the challenged refusal and the existence of grounds to instruct the respondent to reconsider INDIVIDUAL_1’s request for public information dated March 15, 2022.
🔗Source: https://reyestr.court.gov.ua/Review/126004002
The mere introduction of martial law in Ukraine, without justifying the impossibility of taking certain actions within the time limits prescribed by law due to its introduction, cannot be considered a valid reason for postponing the taking of such actions or not taking them at all
📌Ruling of the Supreme Court in the composition of the panel of judges of the Cassation Administrative Court dated October 5, 2023, in case No. 380/7479/22
The Supreme Court considers justified the conclusions of the lower instance courts that the mere introduction of martial law in Ukraine, without justifying the impossibility of taking certain actions within the time limits prescribed by law due to its introduction, cannot be considered a valid reason for postponing the taking of such actions or not taking them at all.
In this case, the respondent postponed providing a response to the plaintiff’s request, due to the temporary suspension of public access to the Unified State Register of Court Decisions, the services “Case Status” and “List of Cases Scheduled for Hearing.” However, the respondent postponed providing a response to the request until the end of the period of martial law in Ukraine, referring to the decision of the Council of Judges of Ukraine dated March 25, 2022, No. 11, recommending courts to temporarily postpone until the end of the period of martial law in Ukraine the provision of responses to requests for public information received since the beginning of the introduction of martial law in Ukraine – February 24, 2022.
Taking into account the motives of the respondent’s decision and the circumstances of the Pechersk District Court of Kyiv’s continued work in the conditions of martial law, the panel of judges of the Supreme Court believes that the respondent’s application of the postponement tool in this case for the entire duration of martial law in Ukraine, considering the general recommendation expressed by the Council of Judges of Ukraine at the beginning of the full-scale invasion of the Russian Federation into Ukraine, was not justified by reasons that objectively prevented the provision of the requested information within the time frame established by law or posed a threat to national security.
Given that the challenged court decisions, reviewed by the cassation court within the arguments and requirements that were the basis for opening the cassation proceedings, were adopted in compliance with the norms of substantive and procedural law, the cassation appeal should be dismissed, and the challenged court decisions should remain unchanged.