Alex Bezverkhnia
Freedom of Information Officer
Freedom of Information (FOI) – three words that are used around the world, but how many different rules, nuances, and challenges are behind them?
In general, of course, FOI law allows citizens to access information held by public authorities, promoting transparency and accountability. However, how you access information - and the rights that people have - will vary depending on where you are. In this context, I considered the key differences between Ukraine and Scotland’s FOI laws.
If you’re familiar with the Freedom of Information (Scotland) Act 2002 (FOISA), you’ll know that it can take up to 20 working days to receive a response from a public authority. In contrast, Ukrainian authorities normally have only 5 days to respond under the Access to Public Information Act (APIA). In some circumstances this is reduced further to just 48 hours - such as where it can be shown that the information is necessary for protecting life and freedoms of a person, relates to food quality, the state of the environment or emergency situations.
However, if the request concerns the provision of a large amount of information or requires searching for information among a significant amount of data, the authority can extend the time limit for up to 20 working days.
In my opinion, now that most information is in electronic databases, 5 working days should be enough to respond to the majority of requests. Moreover, a provision for complex cases is available, which makes it effective both for individuals and for public authorities in terms of compliance with the law.
Another interesting aspect relates to environmental information. Unlike Scotland, the right of access to information on the environment is not regulated separately in Ukrainian law; it is also provided for in the APIA. This means that it does not matter whether the request relates to environmental information or not - if it is public, it should be dealt with under the same law. And, as noted, where information relates the state of environment, authorities must respond within just 48 hours if a requester has reasonable grounds to seek this.
When I first studied FOISA, I was surprised that an authority can charge for providing information (although in most cases it is provided for free). Interestingly, in Scotland, you do not have to pay if it costs less than £100 but your request can be refused if it exceeds the limit of £600, which is typically calculated on the approximate time required to prepare a response.
Under Ukrainian law, the only thing you can be asked to pay for is paper if the answer takes more than 10 pages and you want to receive photocopies of documents (we just care about the environment!).
I understand that Scotland’s charging mechanism allows authorities to refuse to respond to requests that may, for example, constitute an abuse of the right to information. There is a provision on vexatious requests that also serves this purpose.
Interestingly, APIA does not provide for such a mechanism. Recently, the Ombudsman of Ukraine stated that the number of vexatious requests (as they would be called under FOISA) has significantly increased. Although such cases also occur in peacetime, the increase in the number of these requests in 2023-2024 is believed to be associated with the full-scale Russian invasion and suspected attempts to disrupt Ukrainian authorities. However, public authorities are obliged to consider all requests and provide reasonable responses within the established timeframe. While there is an ongoing investigation into this matter and work on how to address this issue, I believe that a provision on vexatious requests would be a great addition to Ukrainian FOI law.
Finally, when you are not satisfied with a public authority’s response, in both countries you can appeal for an internal review. Following this, the next stage in Scotland would be an appeal to the Scottish Information Commissioner. If you think the Commissioner has not applied the law correctly, you can then appeal to the Court of Session.
In Ukraine, there is no information commissioner. Instead, requesters may appeal to the Ombudsman of Ukraine. However, in contrast to Scottish practice, this appeal is not a mandatory stage, and an appeal can be made right to the court.
As we’ve seen, both Scotland and Ukraine have their unique approaches to Freedom of Information laws, each with its own strengths and areas for improvement.
I believe that learning from each other’s experiences, both countries can enhance their systems to better serve their citizens. Ultimately, the effectiveness of access to information laws depends on constant evaluation and adaptation. Moving forward, it is important to continue striving for greater transparency and accountability, ensuring the law remains relevant to its time.
We’d love to hear your thoughts on the current FOI laws and what can be done to improve their transparency and effectiveness. Share your ideas with us!
Alex Bezverkhnia
