V. A. Lipkan: Administrative and legal regime of information with limited access in Ukraine

Lipkan V. A.
Administrative and legal regime of information with limited access in Ukraine : [monograph] / V. А. Lipkan, V. J. Baskakov / Edited by V. A. Lipkan. — К. : О. S. Lipkan, 2013. — 344 p.
ISBN 978-966-2439-45-8

 

The monograph is devoted to theoretical and administrative and legal problems of protection of information with limited access in Ukraine. The paper defines the concepts of information with limited access, administrative and legal regime of such information, confidential information, secret information.
The main features of information with limited access in the administrative and legal context, highlighted the main types of such information, described the administrative and legal regime of information with limited access in Ukraine, and also outlines specific administrative and legal regimes of protection of state secrets and personal data (information about a person ) as the most important types of information with limited access.
To further improve the administrative and legal regulation and practice of national legislation on protection of information with limited access has been requested a number of measures.
Monograph will benefit graduate students, researchers and practitioners, and all those interested in gaining information society.

CONCLUSIONS

 

The current state of administrative and legal regulation of social relations in the field of information with limited access in Ukraine needs improvement and harmonization with international standards. It is primarily about improving the administrative and legal status of entities ensuring the protection of information with limited access and making relevant changes and amendments to the current Code of Ukraine on Administrative Offences. However, a holistic, systematic consideration of the problem of administrative and legal regime of information with limited access does not exist in Ukraine, despite the presence of sufficient attention to certain types of information with limited access in the administrative and legal researches.

By the results of the research we consider necessary to formulate the most important, practically meaningful and scientifically valid conclusions.

  1. The historiography of research information with limited access in national administrative doctrine has been outlined. information with limited access is quite new and barely developed legal phenomenon in the national administrative doctrine. Have been identified three main stages of development scientific thought, which is devoted to information with limited access in national administrative doctrine. The first phase (1991 – 2005 years) is characterized by superficial consideration information with limited access in the context of the study of various aspects of information security and information law, the protection and preservation of where information with limited access is defined as the important area of information security or institute of information law and topical direction of research activities also. The second phase (2006 – 2007 years) characterized by the appearance of monographic researches, subject of which is directly information with limited access, features access to the above information and allocation of the main kinds of secrets. The third phase (2008 – till present) is characterized by intense conducting scientific researches and publication of papers with different specializations, squarely focused on the specific kinds of secrets (banking, commercial, personal secret, etc.).
  2. A new solution of concept of «information with limited access » and allocated its constitutive features of the administrative and legal context has been provides. Information with limited access is defined as information and/or data, that may be stored on material carriers or displayed electronically, access to which is limited by the laws of Ukraine by its owner or bona fide user (the entity of authority, person etc.) due to its special value for them on a legal basis. Among the constitutive features information with limited access in the administrative and legal context are the following: 1) the information with limited access – is primarily information, data that can be stored on physical media or displayed electronically, and 2) information, which can be applied to a limited access mode is such that complies with the legislation of Ukraine, 3) a certain number of Members gained access to it solely on legal grounds (bona fide users) 4) information with limited access is of particular value for the above categories of subjects (moral, financial, personal, etc.) because of uncertainty of other entities, 5) bona fide owners and users of information with limited access realize adequate legal measures to prevent access by unauthorized entities, 6) for violation of the above measures established legal responsibility.
  3. The concept of «administrative and legal regime of information with limited access» and singled out its main features has been determined. Administrative and legal regime of information with limited access – is regulated by the national legislation operational procedure of the authorized entities by imperative method of legal enforcement and system of special facilities for the protection and conservation of public relations in the information with limited access field. Features of administrative and legal regime of information with limited access: it is the order of the authorized state bodies and other competent state institutions, local governments, and individuals regarding to information with limited access, this activity is regulated in the national legislation by determining the operational rules under which indicated rights and duties of man and citizen, authority of suitable institutions, administrative liability for violations, etc. in the field of information with limited access, the presence of imperative method of legal impact between the participants of relations in the field of information with limited access, is carried out by an appropriate system of various special facilities, the purpose of this activity is to provide protection and conservation of public relations in the area of information with limited access, i.e. the respective rights and freedoms of man and citizen interests of the state and society.
  4. Information with limited access on the kinds has been classified. The criteria, by which to unambiguously classify certain information (data) as information with limited access or identify its main kinds in the legislation does not identified. The Law of Ukraine «An Access to Public Information» contains only the norm, according to which the information with limited access is: 1) confidential information, 2) secret information, and 3) service information. In some articles of the above Law is given legal definition of confidential and secret information, and detailed understanding of service information. Have been classified information to such, that is generally forbidden for distribution in particular country and such, spread of which is limited due to certain circumstances, such as damage to certain categories of people. In turn, confidential information, in our opinion, should be recognized any information with limited access, that has no features of state secrets and the secret information – is any information with limited access, which has features of state secrets.
  5. Have been characterized the elements of administrative and legal regime of information with limited access, including the purpose of establishing the legal regime, legal principles, the object of administrative regulation, the method of regulation, «regime rules», special public bodies, responsibility for the violations of the «regime norms», definition of the spatial and temporal boundaries of this administrative and legal regime.
  6. Has been determined the deficiencies and provided the suggestions for improving the administrative and legal regime of state secrets. The main factors that negatively affect the condition of administrative and legal regime of state secrets are: socio-economic, human, organizational, etc., namely employee turnover at regime-secret bodies, lack of necessary special knowledge in IT and in the legal field, and also lack of awareness with the specifics activities of law enforcement bodies and content of tasks, are aimed at addressing the activities of such bodies, lack of knowledge about the current legislation on state secrets by some persons, who have admission and access to state secrets; improper equipment of premises regime-secret bodies and significant obsolescence of forms and methods of protection of state secrets etc. In order to improve administrative and legal regime of state secrets we propose to provide the audit of knowledge of the legislation on state secrets and rules of the secret case management, by persons, who not only have also admission & access to state secrets. The mechanism verification knowledges of legislative norms on state secret is proposed to predict at the level of some instruction or Rules, which has to develop Security Service of Ukraine as the main body, which protects state secrets. Among the ways of improving the administrative and delictual legislation in this field, we have supported the opinion of some authors about the need to supplement the current Administrative Code (or fix it in the new Code of Ukraine on administrative offenses) by norm, that would provide the administrative responsibility of legal persons for the violation of legislation on state secrets and also increasing amounts of penalties as a warning of administrative offenses, liability for which is set in Art. 212-2 of Administrative Code. Also we propose to extend the range of administrative penalties. For example, along with a fine collection to foresee such as: community service, correctional work, administrative arrest. According to the authors, there is need to strengthen penalties for offense under Art. 212-2 of Administrative Code, in wartime.  It is necessary to improve the administrative and delictual legislation in this field in: amendments to Art. 212-2, in particular, to unite claim 1 (according to which liability for failure to comply with established by law order of convey of state secrets to another state or international organization is provided), with claim 8 (which provides the responsibility for noncompliance with legal requirements on ensuring the protection of national secrets, during the international cooperation, receiving foreign delegations, groups and individual foreigners or stateless person and carrying out the work with them). According to the authors, claim 8 covers claim 1. For example, violation of the order state secrets convey to another state or international organization just also is one of the violations of legislation concerning ensuring the protection of national secrets, during the international cooperation, receiving foreign delegations, groups and individual foreigners or stateless person and carrying out the work with them. Additionally, this article contains a number of evaluating notions that require legislative determination, among which «real danger», «destroying the integrity», «unreasonable information security classification» and so on. Therefore, we proposed to clearly define reasons for information security classification at the legislative level.
  7. The state and development prospects of administrative and legal regime of personal data have described. To the main shortcomings of the administrative and legal regime of personal data we include: collision of legal acts norms that regulate public relations at personal data protection and the presence of numerous gaps, ambiguity, inconsistency and fixed definitions contradiction, either lack even a basic of them sometimes; the presence of considerable massifs of declarative provisions without the mechanism of law realization; the presence of numerous blanket law norms, that complicates its legal implementation, the presence of abstract, subjective concepts, which need an official interpretation or clear definition etc. To improve administrative and legal regime of personal data we offer the following ways: to define the concept of «public necessity» as a prerequisite for dissemination of personal data without the consent of the subject of personal data; to settle the legal regime of personal data contained in the databases after the death of the person and a violation of person rights to confidentiality of personal data and the prohibition of processing of data without its consent, except in cases determined by law and only in the interests of national security, economic prosperity and human rights; to expand the number of people who are not covered by the Law of Ukraine «On Personal Data Protection», namely: online media journalists (if the media has no status news agency or journalist is not in professional association of journalists); legally to define verification occasions by competent authorities of personal data protection, in particular if person sends a complaint about the illegal use its personal data, as well as intervention boundaries, procedure of conducting inspections and making the relevant acts for violations the legislation on protection of personal data, etc. by the State Service of Ukraine on protection of personal data.
  8. Administrative and legal regime for service information has been characterized. Institute of professional secrecy is directly connected with the institution of state secrets. In Art. 10 Law of Ukraine «On State Secrets» the ability of public authorities on the basis and within the law and in order to specify and systematize data information classified as state secrets to create detailed lists of information that constitute a state secret has provided. Publication of detailed lists is not provided. However, the right of interested persons to appeal to President of Ukraine or the Verkhovna Rada of Ukraine, inclusion in detailed lists information that cannot be recognized as state secret in content, has been established. Retrospective analysis of the relationship between the concepts of «state secrecy» and «official secret» made possible to conclude that for a long time in legislation has been used another concept – «state secrets», which are understood all information that has to be protected by the state and its divulge could harm the public interest. State secrets covering state, military and service (industrial) secrets. Lack of legal definition of these terms was compensated by the fact that their legal regime was enshrined in the various instructions, regulations, lists of information, which identifies that: State secrets are information divulgation of which (transfer, leakage, etc.) may adversely affect the quality status of military and economic potential of the country or cause other serious consequences for national defense, national security, economic and political interests of the USSR; official secrets are information that is protected by the state in any field of science, engineering, production and administration, disclosure of which (transfer, leakage, etc.) may harm the interests of the state. The information was a state secret depending on the degree of secrecy: «special importance» and «top secret» and information that constituted official secrets, classified «secret». It should be noted that along with the above information, there is also information that was forbidden to publish in the media and was «for official use only». The latter was called unclassified information with limited dissemination. In this regard, some scholars believed that the official secret includes information that classified as «secret» and «OU». The difference between them lay in their importance for the public interest, the form and degree of responsibility for their disclosure and related harm from publicizing of such information. Only part of information which was professional secrecy, the disclosure of which could harm the public interests to state secrets belonged. The following information may belong to service information according to the Law of Ukraine «On Access to Public Information»: 1) the information, contained in the documents of government entities, that make up the interdepartmental correspondence, memorandums, recommendations, if they are related to the entity activities or realization of control & supervisory functions bodies of state power, decision-making and are preceded public discussion and/or decision-making; 2) the information, gathered during operational and investigative, counterintelligence activities in the field of defense of the country, which is not classified as state secrets. This information is information with limited access, so access to it is limited, subject to the following set of requirements: 1) only in the interests of national security, territorial integrity or public order, the prevention of disorder or crime, for the protection of health, protection of the reputation or rights of others, for preventing the disclosure of received confidentially information or for maintaining the authority and impartiality of the judiciary; 2) disclosure of the information would cause substantial harm to those interests, and 3) the harm from disclosure of the information outweighs the public interest in getting it. The state authorities, local authorities, other government entities are obliged to create lists of data that is service information. The following basic principles of creating these lists have distinguished: 1) the decision to grant (withdrawal) for official use only information are accepted by direct implementers of documents according to the list and according to the conclusions of expert commissions, and 2) a document that contains information that is service information, is assigned a security classification «for official use only» (further – OU); 3) «OU» information is the property of the state and contains limited distribution information; 4) for correct «OU» assignment to wares and information, have responsibility the officials who have provided classification, signed or approved these documents; 5) In case of cancellation of security classification of information, about removal restricting access, all of the organizations to whom it was sent, should be reported; 6) copying of «OU» documents by outside organizations should be done by agreement with the organization – the author of these documents; 7) use of information, telecommunication and information-telecommunication systems for printing of «OU» documents, carried out only after creation therein a comprehensive system of information protection and obtain the appropriate certificate; 8) transfer of «OU» information from one system to another is carried out by secure communication channel or in encrypted form. Using the Internet or unprotected channels for the transfer «OU» information is prohibited; 9) guilty persons will be brought to administrative liability in accordance with current legislation for disclosure of «OU» information. List of approximate criteria for classification service information has been identified: 1) should be established by the state budget or be in the possession, use or disposal of the organization; 2) be used in order to ensure the state national interests, 3) do not belong to a state secret, and 4) as a result of disclosure of such information is possible: 4.1 The violation of constitutional rights and freedoms of man and citizen; 4.2 occurrence of negative consequences in domestic political, foreign, economic, military, social, humanitarian, scientific, technological, environmental, and information spheres, also in the areas of national security and the state border security; 4.3 creation of obstacles in the activities of public authorities.

 

BRIEF CONTENTS

 

PART 1 THE LEVEL OF SCIENCE RESEARCH AND ITS CORE METHODOLOGY ………………………………………………………………..

Chapter 1 Bibliography of research..

Chapter 2  Methodological basis of research..

Chapter 3 Key definitions of research..

PART 2 Classification of information with limited access.

Chapter 1 Classification of information with limited access in Ukrainian legislation

Chapter 2 Classification of information with limited access in doctrinal sources.

PART 3 THE DEFINITION AND STRUCTURE OF ADMINISTRATIVE AND LEGAL REGIME OF information with limited accessin UKRAINE

Chapter 1 The essence of administrative and legal regime of  information with limited access in Ukraine.

Chapter 2 Characteristics of the elements of administrative and legal regime of information with limited access in Ukraine

Chapter 3 Improvement of administrative and legal regime of  information with limited access in Ukraine.

PART 4 FEATURESOF ADMINISTRATIVE AND LEGAL REGIMES of CERTAIN TYPES OF information with limited access

Chapter 1 Administrative and legal regime of state secrets.

Chapter 2 Administrative and legal regime of personal data (information about a person )

Chapter 3 administrative and legal regime of  service information..

 

coNclusion

tezaurus

used litErature

useful bibliography..

gratitude.

 

 

 

 CONTENTS

BRIEF CONTENTS.

CONTENTS.

PREFACE.

THE LIST OF Abbreviations

INTRODUCTION..

 

part 1 THE LEVEL OF SCIENCE RESEARCH AND ITS CORE METHODOLOGY..

Chapter 1 Bibliography of research..

Researches on information security

Researches on information law 

Researches, directly devoted to various aspects of information with limited access (specialized scientific papers)

 

Chapter 2  Methodological basis of research..

Chapter 3 Key definitions of research..

Classification of information with limited access in doctrinal sources.

Classification of information with limited accessin regulatory legal acts

PART 2 Classification of information WITH LIMITED ACCESS.

Chapter 1 Classification of information with limited access in Ukrainian legislation

Chapter 2 Classification of information with limited access in doctrinal sources.

PART 3 THE DEFINITION AND STRUCTURE OF ADMINISTRATIVE AND LEGAL REGIME OF information with limited accessin UKRAINE

Chapter 1 The essence of administrative and legal regime of  information with limited access in Ukraine.

The concept of “regime”

The concept of ” legal regime”

The stages of teachings about administrative and legal regime forming

The concept of “administrative and legal regime”

Features of administrative and legal regime

The concept of “administrative and legal regime of information with limited access “

Features of administrative and legal regime of information with limited access

Classification of administrative and legal regimes

Classification of administrative and legal regime of information with limited access

 

Chapter 2 Characteristics of the elements of administrative and legal regime of information with limited access in Ukraine

Approaches to the structure of the administrative regime understanding

Purpose of administrative and legal regime of information with limited access

Legal principles of administrative and legal regime of information with limited access

The object of administrative and legal regime of information with limited access

The method of administrative and legal regime of information with limited access

“Regime rules” of administrative and legal regime of information with limited access

Special public authorities as an element of administrative and legal regime of informationwith limited access

Verkhovna Rada of Ukraine as entity of protection of informationwith limited access

President of Ukraine as entity of protection of informationwith limited access

National Security and Defense Council of Ukraine (NSDC of Ukraine) and the Cabinet of Ministers of Ukraine as entities of protection of informationwith limited access

The executive bodies as entities of protection of informationwith limited access

Responsibility for violation of regime norms

Spatially-temporal boundaries into force of administrative and legal regime of informationwith limited access

 

Chapter 3 Improvement of administrative and legal regime of  information with limited access in Ukraine.

The stages of systematization of information legislation

Directions of incorporation

Directions of consolidation

Directions of codification

Approaches to Information Code forming

M. Shwetzʼs Project

V.Tsymbalyukʼs Project

Project of the State Committee on Television and Radio Broadcasting

V.Lipkanʼs and V.Zaluzniakʼs  Project

 

PART 4 FEATURES OF ADMINISTRATIVE AND LEGAL REGIMES of CERTAIN TYPES OFinformation with limited access

Chapter 1 Administrative and legal regime of state secrets.

Normative and legal regulation of social relations in the state secrets field

The concept of “state secrets”

The system of of state authorities, that are designed to protect state secrets

Stages of classification information as state secrets

The list of data, that constitutes state secrets

The term within the decision on referring of information to state secret is valid

The list of information, that can not be classified as state secrets

Responsibility for violation of legislation on state secrets

The main causes of committing administrative violations of legislation on state secrets

Prospects for the development of administrative and delictual legislation in the state secrets protection

 

Chapter 2 Administrative and legal regime of personal data (information about a person )

The history of the adoption of the Law of Ukraine “On Personal Data Protection”

Basic Principles of the Law of Ukraine “On Personal Data Protection”

The definition of “personal data”

The information belonging to personal data

Entities of personal data protection

The procedure for processing subject’s consent to use his personal data

Legal liability for violations of legislation in the sphere of personal dataprotection

 

Chapter 3 Administrative and legal regime of  service information..

History of the Institute of service information foundation

The current state of normative and legal regulation of public relations in the service information field

The list of information, which is service information

The concept of “service information” in doctrinal sources

The concept of “service information” in regulatory legal acts

Features of service information

Correlation of concepts “service secret” and “state secrets”

Correlation of concepts “service secret” and “professional  secret”

Protection of documents “For Official Use Only” have marked

 

 

coNclusionS

tezaurus

used litErature

useful bibliography..

 

Lipkans` science school researches

Information with limited access

Administrative and legal regimes.

Criminal lwa and criminalistics researshes to information sprhere

Information treaties

Information Law and Information Security

 

gratitude