6 April 2021

Ukraine searches for approach to classifying information. So far, it’s a hard choice between total classification and global transparency standards.

Over the past year, Ukraine has finally initiated some changes in the security classification procedure for any national security-related data, which has largely gone unnoticed by the general public. Since the very first days of independence, Ukraine has opted for the traditional approach of many post-Soviet countries – total classification.

Most of the data subject to classification have no relation to national security. This disbalance between secrecy and transparency is one of the major reasons for corruption and abuse. Whenever experts, the media, and even Members of Parliament (MPs) are restricted in accessing a large portion of information because of the security classification, there is no way to control expenditures and verify the necessity for classification.

According to the National Anti-Corruption Bureau of Ukraine (NAKO), the total amount of losses resulting from corrupt practices within the Defence Sector in 2014-2017 exceeded 1 billion UAH.

Classified spending with no competition affects national security. The state may initiate the bidding procedure without disclosing any information on weapon specifications and equipment required.

In many cases, the procured items are not advanced materials, thus all of the specifications could be safely disclosed, allowing other market players to offer better solutions. This is the way a market economy works. Yet, those players cannot participate in tenders as they are not aware of the requirements.

The tendency to classify information may have another impact, as well. Should any supplier offer an uncompetitive or unnecessary product at an elevated cost, the state would still need to procure it because no other options were offered. This vicious circle is the product of failing to disclose detailed information on the State Defence Order.

Reform of defence and law enforcement agencies and their approach to security classification

Ukraine joins other countries in the search for a balance between national security interests and transparency, while faced with the conflict in Eastern Ukraine and the need to support freedom of access to information. Two draft laws on security classification procedures were submitted to the Verkhovna Rada of Ukraine last year.

MPs have initiated reform in defence and law enforcement agencies by approving in the first reading Draft Law #3196-d On the Reform of the Security Service of Ukraine (SSU) and Draft Law #912-IX On Intelligence. Both documents are far from ideal standards, although the mere presence of such regulations within the sector is hard to overestimate.

The Law on Intelligence introduces a new notion of classified intelligence information that is too vague. The description of a new form of classified information provides for significant corruption risks, as the information could be classified arbitrarily without proper substantiation. No procedures are established to identify whether the information should be treated as classified intelligence information, the maximum term for the classification of information, or the terms and procedures for declassification. An additional risk of excessive classification is due to the lack of a three-part test for classified intelligence information, which is the gold standard that regulates the procedure for accessing public information.

Restricting access to information should only be possible on legal grounds and subject to clear, understandable, and verifiable criteria, particularly whether the damage for disclosing such information outweighs the public interest in it.

Procurement of goods and services for intelligence agencies is currently regulated by the Law on Defence Procurement. In practice, this entails a high risk of using classified spending procedures provided under the Law on Defence Procurement.

The Draft Law on the SSU was expected to initiate reforms in the agency, although it continues with the old Soviet tradition of excessive secrecy in terms of public access to information.

Draft Law on State Secrets

Systemic changes were expected when presidential candidate Volodymyr Zelenskyi promised NAKO to change the situation regarding information classification. Throughout 2020, Parliament was working on the Draft Law on State Secrets (Law on the Protection of Classified Information), which was developed by a working group that involved many experts, including NAKO. That was great progress. Civil society could only dream of having access to the law-making process on information classification under the previous Parliament.

However, some things raise several concerns. The draft law On State Secret is focused on protecting classified information only. It offers no solution to the excessive secrecy of entire categories of information, provides no clear definition of key concepts, and lacks effective safeguards against restricting access to socially important information, thus barely providing any changes to WHAT could be referred to as state classified information.

The draft law regulates the protection of information that was classified under the previous standards, which are more inclined to excessive secrecy. It also provides for a single person and not a special board to decide on classifying information. This poses a significant risk of abuse.

NAKO suggested considering any information as unclassified by default, with an exception only for information that meets the requirements of the three-part test (Article 6 of the Law on Access to Public Information). This proposal was rejected.

The current version of the draft law provides for the old principles of information classification. It carries an article similar to Article 8 of the current Law on State Secrets, which allows for classifying entire categories of information, disregarding the three-part test. Therefore, NAKO experts believe this draft law would bring no significant changes to the balance between transparency and secrecy.

The draft law should be submitted to the ad hoc committee for consideration in the spring this year. Hopefully, this document will be properly amended.

 

Law on Defence Procurements and other changes

While the draft Law on Classified Information is still being developed, several significant amendments were introduced to the Law on State Secrets. Amendments were provided under the Law on Defence Procurements that was passed six months ago, which were some positive changes shifting the balance towards additional transparency. The Law on State Secrets was amended with provisions that require classifying information and not the whole document that contains it.

Previously, the whole document on Defence Procurements was classified, making Ukrainian producers unaware of the need for certain weapons and equipment. This produced zero competition. In most cases, equipment was supplied by a single producer working in a non-competitive environment.

Presently, should any document contain classified information, access may be provided to any unclassified portions of the document. The provision on classifying information and not the relevant document was included in the draft Law on Classified Information, which is a positive step forward.

On the other hand, one of the major achievements of the Law on Defence Procurements – the declassification of the State Defence Order (SDO) – became at risk. Previously, the SDO was classified under the Law on State Secrets, since all the information it contained was supposed to be classified.

Some of the provisions in the new draft Law on Protection of Classified Information present a risk of classifying significant portions of the SDO. Therefore, NAKO insists on returning the key provisions of the Law on Defence Procurements to the draft Law on Protection of Classified Information.

The following should not be considered as classified information:

  1. Information on the type, total quantity, and cost of weapons, equipment, ammunition, spare parts, and materials procured for defence needs (law enforcement agencies’ needs).
  2. Information on the quantity and terms of supply for the main types of fuel, military uniforms, and food products for military units, law enforcement agencies, or special units of the Ministry of Internal Affairs of Ukraine to sustain their combat readiness.
  3. Information on the procurement process and the scope of procurement for defence-related goods, work, and services to support the needs of the Armed Forces of Ukraine, other uniformed services, and law enforcement agencies.

Major changes took place with access to information in the security and defence sector in 2020, including SDO declassification, the comprehensive review of legislation on state secrets, and the invitation of independent experts to join professional discussions as part of the parliamentary working groups.

We hope that all of this will continue in 2021 and that reform shortfalls will be properly amended by parliamentarians.