ZHAR.INFO journalists lose the appeal in an access case

The Administrative Court of Appeal No. 7 dismissed the appeal filed by Alyona Bereza, a journalist for the Khmelnytsky media outlet ZHAR.INFO, in a case on access to public information, upholding the ruling of the first instance court.

The judgement was made on December 6, 2023, as the media outlet's editors told IMI.

The journalists were contesting the Khmelnytsky City Council's refusal to provide information on the state of the bomb shelters in two educational institutions in the oblast center.

Earlier, on September 18, the Khmelnytsky District Administrative Court partially ruled in the editors' favour by decalring the Khmelnytsky City Council executive committee's reply claiming that the requested information was proprietary and thus classified to be unlawful. At the same time, the court refused to provide it in accordance with Article 22, Part 1 of the Law of Ukraine "On Access to Public Information".

Disagreeing with this judgement by the first instance court, ZHAR.INFO filed an appeal to the Administrative Court of Appeal No. 7.

The ruling in the appeal states that "the panel of judges of the appellate instance came concluded that the first instance court's judgement is based on comprehensive, complete and objective review of all the details of the case that are relevant for the resolution of the dispute and aligns with substantive and procedural law, that the arguments in the appeal do not refute the conclusions of the first instance court set forth in the said judgement, which means there are no grounds to cancel it."

At the same time, the Platform for Human Rights lawyer Yevhen Vorobyov, who assisted the editors in this case, noted that for some reason the court of appeal did not consider the issues set forth in the appeal.

"The first instance court missed a fact which was recognized by the Defendant himself, that he and other participants drew up an object assessment (e.g. of buildings, structures, premises) regarding its usability as a basic shelter, as required by the Ministry of Education and Science of Ukraine letter No. 1/8462-22 (dated 26.07.2022). The form for such assessments is provided in Appendix No. 6 to the Ministry of Education and Science Decree No. 1/8462-22, dated July 26, 2022. My request was also about providing object assessment (e.g. of buildings, structures, premises) regarding its usability as a basic shelter, the form of which is provided is provided in Appendix No. 6 to the Ministry of Education and Science Decree No. 1/8462-22, dated 07/26/2022," the lawyer noted.

"This detail is never mentioned at all by the appellate court, although the appeal is entirely based on the fact that the first instance court failed to take it into account. We believe that the court of appeal reviewed the journalist's appeal superficially and essentially did not correct the mistakes made by the first instance court," Yevhen Vorobyov added.

The court of appeal also concluded that "the subject of authority, who is not the administrator of the requested information, violated Clause 6, Part 1 of Article 14 of the Law of Ukraine "On Access to Public Information" regarding the provision of complete and accurate information, namely about not having the requested information on Annex 11 (Assessment of the readiness of a civil protection structure) as stipulated by the Requirements for the maintenance and operation of civil protection structures, approved by the Ministry of Internal Affairs of Ukraine Decree No. 579 (July 9, 2018) by not inform the applicant of this; therefore the court goes beyond the scope of the claims."

The court ruling entered into force on the day it was issued and is not subject to appeal.

The editors of the media outlet are disappointed by this judgement, since they have been unable to learn any information about the state of bomb shelters in the Khmelnytsky educational institutions or verify the information received from the oblast center's residents since May 2023.

"For me, both the judgements of the two instances nor the conclusions they reached are generally incomprehensible. It turns out that you can pour budget money into bomb shelter renovation and do whatever you want there, or do nothing with the shelters at all. No one will be able to actually prove this, after all. But I was most outraged by the behavior of the Khmelnytsky Mayor, who promised to provide this information in a personal conversation right after the first judgement, and then we simply received a refusal with excuses about proprietary information. It turns out that the officials do have something to hide from us after all?" commented the journalist Alyona Bereza.