The SC Grand Chamber Determined the Time Since Which the High Council of Justice Had to Publish Information About Auto-Distribution of Disciplinary Complaints on the Internet

The plaintiff appealed in court the fact that the High Council of Justice did not make public, in the form of open data, the information on the automatic distribution of disciplinary complaints among the HCJ members for the period from January 12, 2017 (the date the HCJ began to work) to May 27, 2021 inclusive. According to the plaintiff, this is required by the principle of "open by default" included in the Regulations on data sets that are subject to publication in the form of open data, approved by the Resolution of the Cabinet of Ministers of Ukraine dated October 21, 2015, No. 835 (Regulation), according to the Resolution of the Cabinet of Ministers of Ukraine dated March 3, 2021, No. 407, which entered into force on April 28, 2021. The absence of this information in the public domain hinders conducting research, creating analytical tools and monitoring the activities of the HCJ.

The court of first instance upheld the claim. It was guided by the fact that the legislation did not limit the time during which the information manager must make this data set public in the form of open data. While considering the defendant's appeal, the Grand Chamber of the Supreme Court indicated that the HCJ should have published the information on auto-distribution on the Unified State Open Data Web Portal and on its website since April 22, 2021.

The SC Grand Chamber noted that until April 28, 2021, the information on auto-distribution had not been included in the List of data sets to be made public in the form of open data (List of data sets), which is an annex to the Regulation. And as of the indicated date, the HCJ became obligated to publish in the form of open data not only the information on auto-distribution created since that day, but also created since April 22, 2021, that is, 5 working days before the entry into force of Resolution No. 407 of the Cabinet of Ministers of Ukraine (part 2, Article 15 of the Law of Ukraine On Access to Public Information).

An element of the information openness principle is the principle of "open by default", set out in paragraph 1 of the Regulations (as amended by the Resolution of the CMU No. 407). However, neither the information openness principle nor the principle of its being open by default indicate specific sets of data that the manager of public information must disclose in the form of open data, as well as the period of time in the past for which he must make such disclosure.

The SC Grand Chamber stated that prior to the inclusion of information on auto-distribution in the HCJ (starting from the time of its creation) by the Resolution of the CMU No. 407 into the List of data sets, there had been no obligation to publish this information on its own website and the Unified State Open Data Web Portal. Neither laws nor by-laws had required this. And the letter of the Ministry of Digital Transformation of Ukraine provided by the plaintiff in response to the citizen's appeal may serve to develop the field of open data, but is not formally binding for information managers.

The information openness principle, in particular "open by default", does not give grounds for the conclusion that since April 28, 2021, the HCJ was obliged to disclose the entire mass of information on auto-distribution, which had been created long before the entry into force of CMU Resolution No. 407.

The SC Grand Chamber drew attention to the fact that, according to the plaintiff's approach, information managers had one month since April 28, 2021 (the date of entry into force of the amendments to the List of data sets) to disclose the data included in this List for the entire period of their activity on the Unified State Open Data Web Portal and on their websites. However, the beginning of the activity of many managers of information (among which there are not only state authorities, but also local self-government bodies, business entities of the state and communal sectors of the economy) may have taken place in the early 90s of the 20th century or the Soviet period. The resolutions of the Cabinet of Ministers of Ukraine do not allow concluding that the government tried to disproportionately increase the obligations of information managers, that is, it did not attempt to encourage them to make publicly available, in the form of open data, the relevant data sets accumulated in their possession since the institutes were established.

The manager shall disclose public information in the form of open data no later than five working days from the date of approval of the relevant document. CMU Resolution No. 407 entered into force on April 28, 2021. Therefore, the HCJ had to disclose the information on auto-distribution accumulated since April 22, 2021 in the form of open data on the Unified State Open Data Web Portal and on its website.

The SC Grand Chamber overturned the decision of the court of first instance in terms of recognizing as unlawful the High Council of Justice's non-disclosure of information on auto-distribution for the period from January 12, 2017 to April 21, 2021 inclusive, as well as regarding the obligation of the HCJ to disclose such information for the specified period. In this part, the SC Grand Chamber adopted a new decision - to reject the claim, in another part the court’s decision was left unchanged.

The Resolution of the Grand Chamber of the Supreme Court of July 21, 2022, in case No. 9901/384/21 (proceedings No.11-8заі22) - https://reyestr.court.gov.ua/Review/105637719.

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