of September 29, 2016 No. 10
About practice of application by administrative courts of the legislation on access to public information
For ensuring identical application by administrative courts of provisions of the legislation on access to public information the Plenum of the Supreme administrative court of Ukraine decided to make to courts the following explanations.
1.1. According to part one of article 1 of the Law of Ukraine of January 13, 2011 No. 2939-VI "About access to public information" (further - the Law No. 2939-VI) public information is the information reflected and documented by all means and on any carriers which was received or created in the course of accomplishment by subjects of powers of authority of the obligations provided by the current legislation or which is in ownership of subjects of powers of authority, other managers of public information determined by this Law.
The analysis of this determination and the list of managers of public information enshrined in article 13 of the Law No. 2939-VI demonstrates what public information is reflected or documented by all means and on any carriers:
all information which is in ownership of subjects of powers of authority, that is public authorities, other state bodies, local government bodies, authorities of the Autonomous Republic of Crimea, other subjects performing imperious managerial functions according to the legislation and which solutions is obligatory for execution (Item of 1 part one of article 13 of the Law No. 2939-VI);
information on use of budgetary funds by legal entities which are financed from state, local budgets, the budget of the Autonomous Republic of Crimea (Item 2 parts one of article 13 of the Law No. 2939-VI);
information connected with accomplishment by persons of the delegated powers of subjects of powers of authority under the law or the agreement including provision of educational, improving, social or other state services (Item 3 parts one of article 13 of the Law No. 2939-VI);
information on delivery conditions of goods, services and the prices of them if it is about subjects of managing which hold dominant position in the market or are given special or exclusive rights, or are natural monopolies (item 4 of part one of article 13 of the Law No. 2939-VI);
information on state of environment; quality of foodstuff and household items; accidents, catastrophic crashes, natural hazards and other extraordinary events which took place or can occur and threaten health and safety of citizens;
the other information which is of public interest (socially necessary information) (part two of article 13 of the Law No. 2939-VI).
So, the fact that it is in advance fixed by all means and on any carriers is determining for public information and was in ownership of subjects of powers of authority, other managers of public information.
The address for the answer to which it is necessary to create information, except cases when the manager of information has no required information is not query, but shall own it (Item of 1 part one of article 22 of the Law No. 2939-VI).
If the request concerns information which contains in several documents and can be collected and provided without considerable intellectual efforts (for example, without carrying out the additional informative analysis), then such information corresponds to criteria "opennesses and zadokumentirovannost" and is public.
2.1. According to Item of 1 part one of article 13 of the Law No. 2939-VI managers of information for the purposes of this Law subjects of powers of authority public authorities, other state bodies, local government bodies, authorities of the Autonomous Republic of Crimea, other subjects which perform imperious managerial functions according to the legislation and which solutions are obligatory for execution are recognized.
Certain concept "subject of powers of authority" does not cover officials and officials of public authorities, local self-government as according to the status and circle of powers they do not fall under understanding of public authority and other subjects specified in Item of 1 part one of article 13 of the Law No. 2939-VI. With respect thereto such persons cannot (have no capability) to fulfill duties of the manager of information, including obligation on accounting and promulgation of public information (Article 14, 15 Laws No. 2939-VI). In case of submission of the claim of such persons courts need to leave it without satisfaction in view of the defendant's not accessory (inability such defendant to violate the claimant's rights), under condition if the claimant refuses their replacement by the proper defendant and/or court will not find the bases for involvement of the second defendant.
According to part one of Article 5 and part one of article 12 of the Law of Ukraine "About local self-government in Ukraine" the rural, settlement, city head (further the city head) logs in local self-government and is the main official of territorial community according to the village (voluntary consolidation in one territorial community of residents of several villages), the settlement, the city.
The constitutional court of Ukraine in item 4 of the Decision of July 6, 1999 No. 7-rp/99 explained that the city head as person having the representative mandate acts on behalf of voters, including represents territorial community, city council and its executive committee in the relations with state bodies, other local government bodies, associations of citizens, etc.; takes a legal action concerning recognition illegal acts of relevant organs of local self-government, local executive bodies, the companies, organizations and the organizations which limit the rights and interests of territorial community, and also power of council and its bodies; signs on behalf of territorial community, city council and its executive committee agreements according to the legislation (part three of article 42 of the Law of Ukraine "About local self-government in Ukraine"). Accomplishment of these functions and powers takes place because voters chose it and allocated with the mandate (that is the power of attorney).
Follows from stated that the mayor though logs in local self-government, however is not local government body - village, settlement, city council or their executive body, and therefore has no public information and in understanding of Item of 1 part one of article 13 of the Law No. 2939-VI cannot be her manager. With respect thereto the city head cannot be the proper defendant in dispute on provision of access to public information on query.
Similar approach should be applied also to Chapters district (regional) councils. Difference between heads of regional (regional) councils and the city head consists according to the procedure of their election to these positions. Unlike city Chapters which are directly chosen territorial communities of the village, the settlement, the city chairmen of regional (regional) councils are elected from among deputies of these councils.
Depending on in what ownership there is required information, proper defendant in claims for access to public information in such cases is or the relevant representative body of local self-government (village, settlement, city, regional, regional council) or executive body of local self-government.
People's Deputies of Ukraine, deputies of local councils and the Verkhovna Rada of the ARC, chairmen of regional, regional councils, the rural, settlement, city head, judges, prosecutors, the state contractors and so forth are not managers of public information in understanding of the Law No. 2939-VI.
2.2. The law No. 2939-VI does not oblige collegiate organs of the power and other managers of information who are controlled collegiate organs, to resolve jointly issue of information access. So, the decision concerning request for information can be made solely by his head or other official, being the carrier of organizational and administrative powers. At the same time such official acts on behalf of the manager of information, and therefore proper defendant in the mentioned category of cases is the body to which the request for information, but not the official acting on behalf of this body arrived.
2.3. According to part five of article 24 of the Law of Ukraine of February 17, 2011 "On regulation of town-planning activities" specially authorized bodies concerning town planning and architecture and the central executive body concerning land relations and its territorial authorities provide to No. 3038-VI openness, availability and completeness of information on availability in the territory of the corresponding administrative and territorial unit of the lands of the state-owned and utility property which are not provided in use which can be used under building, about availability of restrictions and encumbrances of the parcels of land, town-planning conditions and restrictions in town-planning and state land cadastre.
Until entering of the relevant information into town-planning and state land cadastre the executive body of village, settlement, city council, the Kiev and Sevastopol city public administrations or the corresponding local executive body shall provide written information on availability of the parcels of land on requests of physical persons and legal entities, can be used under building.
Considering the specified regulations first of all these bodies according to their competence shall possess information on the parcels of land of utility or state pattern of ownership which are not provided in use which can be used under building for realization the rights to free obtaining in property for construction and servicing of the apartment house, economic buildings and constructions. They also remain managers of this information after its introduction in town-planning and state land inventories if it is in their actual possession.
2.4. According to part one of article 63 of the Economic code of Ukraine (further - HKU) depending on the patterns of ownership provided by the law in Ukraine the companies of such types as, for example, the utility company acting on the basis of utility property of territorial community can be effective.
The unitary enterprise is created by one founder who allocates property necessary for this purpose, creates the authorized capital which is not divided into shares (shares) according to the law approves the charter, distributes the income, is direct or through the head who is appointed (is elected) the founder (the supervisory board of such company in case of its education), directs the company and creates its labor collective on the principles of labor hiring, resolves issues of reorganization and liquidation of the company. The state, utility companies, the companies founded on property of consolidation of citizens, the religious organization or on private property of the founder (part four of article 63 HKU) are unitary.
The municipal unitary enterprise is formed by competent authority of local self-government in administrative procedure based on the separated part of utility property and falls within the scope of its management (part one of article 78 HKU).
The body within which scope of management the municipal unitary enterprise falls is the representative of the owner - the corresponding territorial community and performs its functions in the limits determined by this Code and other legal acts (part two of article 78 HKU).
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