Protection of the right to access to open data: the Supreme Court judge spoke about the peculiarities of judicial practice in this category of cases

Judge of the Supreme Court in the Cassation Administrative Court Myroslava Bilak joined the work of the conference “Closed data conference 4.0: Challenges of martial law and reconstruction”, dedicated to the topic of open data.

During the panel discussion “Protection of the right to access to open data”, the speaker reminded that access to open data within the scope of court consideration of cases on access to public information was considered by the legislator to be cases of minor complexity, therefore, a rather small number of them are received by the Supreme Court. In this connection, there is a certain discontent of the society, since it is a sensitive subject for the development of the country as a whole. The introduced cassational filters require the need to prove exceptional circumstances for a cassational appeal for those categories of cases that are subject to simplified proceedings (Part 5 of Article 328 of the Civil Procedure Code of Ukraine).

In this case, the judge recommended that lawyers work more on legal argumentation, apply international standards, international judicial practice, so that similar cases are admitted to cassation proceedings.

As an example, Miroslava Bilak cited administrative case No. 380/15492/21, in which the plaintiff appealed to the State Administrative Court and asked to provide him with a decision for the period from 2006 to 2020 in the text format of open data. Two questions arose before the court in this case: whether the manager, who determined by his internal act a certain format for the publication of a data set, is obliged to provide, upon request, the available open data related to this data set in a different format; whether the conversion of a set of open data from one format to another is the creation of a manager of new information.

Based on the results of the consideration of the case, the Court came to the conclusion that regardless of the format specified by the Resolution of the Cabinet of Ministers of Ukraine No. 835, the DSA publishes the register data set, it, as the manager, possesses the texts of court decisions in the text format of open data, if it is not overly burdened , must provide them upon request. At the same time, the Court also concluded that data conversion is not the creation of new information. Therefore, the administrator should be guided by the principle of good faith and prudence and not apply a formalistic approach to solving the issue, but should maximally assist (upon request) the requester, as far as possible, in access to public information guaranteed by Art. 10-1 of the Law of Ukraine “On Access to Public Information”.

In addition, the speaker noted that although the country has a special legal regime – martial law, within the framework of which certain restrictions on human rights and freedoms are established, this does not mean that the courts cannot check the legality of such restrictions. According to Myroslava Bilak, it is necessary to find a balance between the needs of the state to fulfill its duty to protect the security of Ukrainians and the human right to know, that is, the right to receive information. And in this connection, it is necessary to apply a “reasonable approach” in everything with the help of the rule of law (in particular, the principle of proportionality), which should be guided not only by courts, but also by subjects of power. At the same time, judicial practice acts as a guide for the latter.

In the end, the speaker emphasized that a lot depends on lawyers, the public and subjects of power, since it is their legal reasoning that forms the basis of court decisions. In turn, court decisions influence the subjects of power and help them become better and develop, in particular, the IT industry, open relevant data and provide access to them.

The conference was organized by the DEJURE Foundation with the financial support of the National Endowment for Democracy (NED) and the EU Anti-Corruption Initiative (EUACI).

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