Types of publicly available information in legislation. Concept, characteristics and types of publicly available information. Legal regime of access to open information. You can name such signs of state secrets:

This is the first part of my article “On “quoting” photographs, open access and substitution of concepts”, which was published in the magazine “Economy and Law” No. 1/2017 and posted on Zakon.ru with the kind consent of the magazine’s editors.

The link to this work will look like this: Rozhkova M.A. On the content of the concepts “publicly accessible information”, “bringing to the public”, “freedom of use of works permanently located in a place open to the public” [Electronic resource] // Law.ru. 2017. January 28.URL:

In most cases, when they talk about being in " open access on the Internet", we are talking about "publicly available information" defined in Art. 7 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection” (hereinafter referred to as the Information Law). In Part 4 of Art. 7, this concept is disclosed as follows: “Information posted by its owners on the Internet in a format that allows automated processing without preliminary changes by a person for the purpose of reuse is publicly available information posted in the form of open data.”

In this regard, A. Savelyev points out: “In essence, the Law thereby introduces a presumption of openness of information: any information is publicly available, except that to which access is limited. Classifying information as publicly available in the most general form means that any person, without specifying reasons or purposes, can receive such information and use it at his own discretion, subject to the restrictions on its dissemination established by federal law.”

At the same time, it must be borne in mind that the mentioned Law is designed to regulate relations not regarding intellectual property, but others - arising in the exercise of the right to search, receive, transmit, produce and distribute information; application of information technologies; ensuring information security(Part 1, Article 1). This circumstance is specifically indicated in Part 2 of Art. 1 of the Law on Information: “The provisions of this Federal Law do not apply to relations arising during the legal protection of the results of intellectual activity and equivalent means of individualization, except for the cases provided for by this Federal Law.”

Other norms are subject to application to relations regarding intellectual property - the norms of part four of the Civil Code of the Russian Federation. To indicate cases of posting works on the Internet, in particular, in sub. 11 clause 2 art. 1270 of the Civil Code of the Russian Federation uses the concept “ bringing to public notice" This form of distribution of works of copyright and related rights is defined in the Code as “bringing a work to the public knowledge in such a way that any person can access the work from any place and at any time of his own choice.”

For the purposes of this work, there is no need to clarify whether communication to the public should be considered as part of the law to a communication to the public (see Article 8 of the WIPO Copyright Treaty (Geneva, December 20, 1996; hereinafter referred to as the WCT) or as independent right for distribution (see Article 8(1), Article 12 of the WIPO Performances and Phonograms Treaty (Geneva, December 20, 1996; hereinafter referred to as the WPPT). This is due to the fact that in any case we are talking specifically about the implementation of " “Internet powers” ​​- placing a work in the public domain on the Internet, which involves taking two steps: firstly, placing objects “in digital form in a digital environment” and, secondly, access to these objects by any Internet user.

Thus, bringing any work to the public’s attention on the Internet involves “digitizing” the work (translation into digital form) and then publishing it on any information resource (on a social network, on a website, on a home or news page, etc.). d.).

Cases of making works available to the public should be distinguished from the use of works, “ permanently located in a place open to the public"(Article 1276 of the Civil Code of the Russian Federation). Here we are talking about works not on the Internet, but in the real world - these are works of fine art (in particular, sculpture, painting), works of architecture (buildings), landscape art, etc., allowing constant public viewing and located, as usually in open public places with free admission. A striking example is the Tsaritsyno Museum-Reserve, which includes a landscape park, works of architecture, sculptures, etc.

The freedom provided by law to use works “permanently located in a place open to the public” is, in particular, the opportunity to photograph and distribute images of objects protected by copyright (including by posting photographs in the public domain on the Internet). Such permission in the law of many countries is called freedom of panorama(from German. Panoramafreiheit) and is regulated by special standards, sometimes quite strict.

For example, on October 7, 2016, the French Parliament approved the Law on the Restriction of Freedom of Panorama, which allows individuals (not organizations) to photograph buildings and sculptures located in places open to the public, but only for non-commercial use - these provisions were included in Art. L. 122-5 French Intellectual Property Code.

Unfortunately, Russian legislation does not clarify what is meant by “freedom of use of works permanently located in a place open to the public.” However, some clarifications on this matter have already been given by the Supreme Court of the Russian Federation. For the purposes of this work, it is especially important to note that in para. 3 paragraph 13 of the Review of judicial practice in cases related to the resolution of disputes on the protection of intellectual rights, approved by the Presidium of the Supreme Court of the Russian Federation on September 23, 2015, directly states: “The Internet is not a place open to free access, within the meaning of Art. 1276 of the Civil Code of the Russian Federation.”

Summarizing the above, it should be noted that it is not very successful to use the expression “is in the public domain” for legal characteristics.

If we are talking about the use of information that is publicly available on the Internet, it is advisable to designate it as publicly available information.

If the need for legal qualification arose in relation to issues related to the use of intellectual property, two situations are likely.

If a work has been distributed on the Internet (it is posted on the Internet in the public domain), we are talking about bringing to public attention.

If a work was photographed or otherwise reproduced in a public place with free admission (for example, in a park, square, etc., and sometimes indoors - in a museum, at an exhibition), then the use of the work is implied permanently located in a place open to the public.

P.S. IP CLUB news feed in the field of intellectual property and Digital Law in

Open access information includes not only publicly available information provided upon request, but also information that the owner is obliged to disseminate.

  • 1. Public information provided upon request includes:
    • - information about the activities of government bodies, including in the manner of publicity of legal proceedings. The obligation to provide this information is enshrined in a number of laws, such as “On Administrative Procedures”, “On National Security”, the Government Decree “On approval of the Rules for the reception of citizens in the central and local executive bodies of the Russian Federation”, the Presidential Decree “On the procedure for considering citizens’ appeals” The legislation specifically stipulates the inadmissibility of manifestations of bureaucracy and red tape when considering appeals from citizens and organizations.

The transparency of open trials is enshrined in the relevant articles of procedural codes.

  • - legal information, including information about the rights, freedoms, responsibilities of citizens and the procedure for their implementation. The official publication of such regulations is a mandatory condition for their application. Accordingly, such information should be available. Moreover, any form of request is legal - both written and oral.
  • - information about emergency situations, environmental, sanitary-epidemiological and other information that ensures the safety of the population. The legislation of the Russian Federation entrusts the relevant authorities with the responsibility to protect the vital rights and interests, health and well-being of citizens of the Russian Federation. State bodies and their press services are also entrusted with the function of informing the population about emergency situations, the environmental and sanitary-epidemiological situation in the country;
  • - information about the activities of public associations and political parties. The Law of the Russian Federation “On Public Associations” establishes the right of public associations to disseminate information about their activities. The Law of the Russian Federation “On Political Parties” gives a similar right to political parties. They are also obliged to ensure that every citizen has the opportunity to familiarize himself with documents, decisions and sources of information affecting his rights and interests;
  • - information about the activities of legal entities. State bodies, public and other organizations of all forms of ownership, as well as officials are required to provide information about their activities to the media. The exception is confidential information (trade secrets, banking secrets, etc.);
  • - other information not related to secrets protected by law must be provided to all journalists without restrictions. This means that refusing to provide you with information (except as specified above) is illegal.

Now let’s turn to freely accessible information that its owner is obliged to disseminate.

2. Public information, the duty of dissemination of which is assigned to the owner.

This includes:

Information about the declaration of a state of emergency and other mandatory messages in connection with the current state of emergency in an emergency situation. Such information consists of information about the degree of risk and harmfulness of the activities of organizations, data about the necessary safety, consequences, measures to prevent and eliminate emergency situations. This information is open and public and is required for publication in the media, as well as through communication and warning systems.

Concealment, untimely presentation or presentation by officials of knowingly false information in the field of natural and man-made emergencies is not allowed. Such information should be provided to you upon your first request;

  • - information about the fact of registration of a political party and political public association (if the party participates in elections, publication of the program is required). A political party is a voluntary association of citizens expressing their political will through their representatives in government structures. The Russian Federation Law “On Political Parties” provides for mandatory state registration of parties. It is obvious that any party has its own program, which reflects its political platform, strategy and tactics and is interested in its wide coverage. The Law of the Russian Federation “On Political Parties” gives parties the right to disseminate information about their activities and promote their goals and objectives, and also imposes the obligation to provide every citizen with the opportunity to become familiar with those documents, decisions and sources of information of the party that affect his rights and interests;
  • - information on the activities of JSCs, joint-stock investment funds relating to their activities, management procedures and issuance. The Law of the Russian Federation “On Joint-Stock Companies” obliges joint-stock companies to publish in the media data on the annual balance sheet, income and loss statements, information on activities in the case of the issue and placement of bonds, as well as in cases of reorganization of the JSC. Article 41 of the Law also provides for the publication of information about issues of shares and the conditions for their placement;
  • - information about the activities of non-profit organizations. The Law of the Russian Federation “On Non-Profit Organizations” obliges such organizations to provide information about their activities to state statistics bodies and tax authorities, founders and other persons in accordance with the legislation of the Republic of Kazakhstan and the organization’s constituent documents;
  • - information that refutes previously disseminated information that does not correspond to reality and discredits honor, dignity and business reputation. The obligation to disseminate such information is enshrined in articles of the Civil Code of the Russian Federation and in the Law of the Russian Federation “On the Mass Media”. In cases where a publication infringes on the personal non-property rights of a citizen or legal entity, the media outlet is obliged to restore the violated right of this person and publish a refutation;
  • - social and cultural information. Events such as the announcement of a play or concert, the opening of an art exhibition, the holding of a public event, holiday, folk festivals, cleanup days, etc. are reported by the institution that initiated them.

Now let’s consider an equally important question: how and in what form to request information

Both oral and written requests for information are equally legal. Current legislation defines a request as an appeal expressing the need of citizens to obtain information on issues of interest of a personal or public nature.

If you need immediate information, you have the right to make an oral request. Unfortunately, practice shows that officials for the most part do not consider an oral request to be a legitimate form and, under various pretexts, avoid answering. Regardless of the form of the request, the official is obliged to provide you with information within the scope of his/her competence.

You can submit a written request when answering your questions requires time and searching for additional information:

  • - state bodies and other organizations are required to provide the requested information no later than three days from the date of receipt of the application or give a response indicating the deadline for submission or the reason for refusal;
  • - to an appeal that requires additional study and verification, a response must be given no later than one month from the date of its receipt;
  • - in the event of a mass media appeal to government bodies or other organizations whose competence does not include resolving the issues raised, within no later than five days this appeal must be sent to the relevant authorities, of which the mass media must be notified.

law information state secret

The most adequate (in my opinion) classification of information by type of access is shown in the diagram below. It fully complies with Russian legislation, but there are many nuances...


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Federal Law of the Russian Federation dated July 27, 2006 N 149-FZ “On information, information technologies and information protection” defines the division of information (depending on the category of access to it) into publicly available information and information to which access is limited by federal laws (Art. .5).

In the same article, information is classified according to the method of distribution. What is important here is the isolation of information that, in accordance with federal laws, is subject to provision or distribution. Those. It is illegal to restrict access to this information. What information are we talking about:

Information to which access cannot be restricted

The list of information, access to which cannot be limited, is specified in Article 10 of the same Federal Law of the Russian Federation dated July 27, 2006 N 149 “On information...”:

  • regulatory legal acts affecting the rights, freedoms and responsibilities of humans and citizens, as well as establishing the legal status of organizations and the powers of state bodies and local governments;
  • information on the state of the environment;
  • information on the activities of state bodies and local self-government bodies, as well as on the use of budget funds (except for information constituting state or official secrets);
  • information accumulated in open collections of libraries, museums and archives, as well as in state, municipal and other information systems created or intended to provide citizens (individuals) and organizations with such information;
  • other information, the inadmissibility of restricting access to which is established by federal laws.

This “other information” is established in federal laws relating to certain specific areas of activity, for example, in the laws on charitable activities and non-profit organizations or in the laws on joint stock companies (example for joint stock companies).

State secret

Regulation of issues related to this type of secrets is entrusted to the Law of the Russian Federation of July 21, 1993 N 5485-I “On State Secrets”. The list of information constituting a state secret is defined in Article 5, where they are grouped in the following areas:

  • military information
  • information in the field of economics, science and technology
  • information in the field of foreign policy and economics
  • information in the field of intelligence, counterintelligence and operational-search activities, as well as in the field of countering terrorism

Confidential information

The list of confidential information was published in Decree of the President of the Russian Federation of March 6, 1997 N 188 “On approval of the list of confidential information.” The types of confidential information according to this decree include:

  • Information about facts, events and circumstances of a citizen’s private life, allowing his personality to be identified ( Personal Information), with the exception of information subject to dissemination in the media in cases established by federal laws.
  • Information constituting secrecy of investigation and legal proceedings, as well as information about protected persons and measures of state protection carried out in accordance with Federal Law of August 20, 2004 N 119-FZ “On state protection of victims, witnesses and other participants in criminal proceedings” and other regulatory legal acts of the Russian Federation.
  • Official information, access to which is limited by government authorities in accordance with the Civil Code of the Russian Federation and federal laws ( official secret).
  • Information related to professional activities, access to which is limited in accordance with the Constitution of the Russian Federation and federal laws (medical, notarial, attorney-client confidentiality, confidentiality of correspondence, telephone conversations, postal items, telegraphic or other messages, and so on).
  • Information related to commercial activities, access to which is limited in accordance with the Civil Code of the Russian Federation and federal laws ( trade secret).
  • Information about the essence of the invention, utility model or industrial design before the official publication of information about them.

In fact, often the same information can belong to different categories of secrets. For example, information that constitutes medical confidentiality is probably someone’s personal data. Some types of secrets defined in the federal laws of the Russian Federation will be described below.

Types of secrets in Russian legislation

trade secret

Information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about methods of carrying out professional activities that have actual or potential commercial value due to their unknownness to third parties , to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime.

  • N 98-FZ "On trade secrets"

Banking secrecy (secrecy of bank deposits)

Information about transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution

Official secret

Official information, access to which is limited by government authorities in accordance with the Civil Code of the Russian Federation and federal laws

  • Presidential Decree of March 6, 1997 No. 188
  • 139 Civil Code of the Russian Federation
  • Federal Law "On the Fundamentals of the Civil Service of the Russian Federation"
  • Decree of the Government of the Russian Federation of November 3, 1994. No. 1233

The secret of credit history

Information that characterizes the borrower’s fulfillment of its obligations under loan (credit) agreements and is stored in the credit history bureau

The Mystery of Insurance

Information about the policyholder, the insured person and the beneficiary, their state of health, as well as the property status of these persons

  • 946 Civil Code of the Russian Federation

Secret of the will

Information concerning the contents of the will, its execution, modification or cancellation

  • 1123 Civil Code of the Russian Federation

Tax secret

Any information about the taxpayer received by the tax authority, internal affairs authorities, the body of the state extra-budgetary fund and the customs authority (with a number of exceptions)

  • 146-FZ "Tax Code of the Russian Federation"

The secret of child adoption

Judges who made a decision on the adoption of a child, or officials who carried out state registration of adoption, as well as persons otherwise aware of adoption, are obliged to keep the secret of the adoption of a child.

  • 223-FZ Family Code R

Medical secrecy

Information about whether the citizen has a mental disorder, the facts of seeking psychiatric help and treatment in an institution providing such care, as well as other information about the state of mental health

  • 117-FZ "On psychiatric care and guarantees of citizens' rights during its provision"

Medical mystery

Information about the fact of seeking medical help, the citizen’s state of health, diagnosis of the disease, other information obtained during the examination and treatment of the citizen, as well as information about artificial insemination and embryo implantation, as well as the identity of the donor. Results of examination of the person entering into marriage.

  • Fundamentals of the legislation of the Russian Federation for the protection of the health of citizens
  • 223-FZ Family Code of the Russian Federation

Privacy of correspondence, telephone conversations, postal, telegraph or other messages

On the territory of the Russian Federation, the secrecy of correspondence, telephone conversations, postal items, telegraphic and other messages transmitted over telecommunication networks and postal networks is guaranteed.

  • 176-FZ "On Postal Services"
  • 126-FZ "On Communications"
  • Code of Criminal Procedure of the Russian Federation

Secret of private life (personal secret)

The right to privacy means the opportunity granted to a person and guaranteed by the state to control information about himself, to prevent the disclosure of personal, intimate information.

  • Constitution of the Russian Federation
  • 150 Civil Code of the Russian Federation

Auditor confidentiality

Any information and documents received and (or) compiled by the audit organization and its employees, as well as by the individual auditor and employees with whom they have concluded employment contracts, when providing services (with a number of exceptions)

  • 307-FZ "On auditing activities"

Secrecy of legal proceedings (secrecy of investigation and legal proceedings)

Preliminary investigation data is not subject to disclosure... can be made public only with the permission of the prosecutor, investigator, inquirer and only to the extent that they consider it permissible, if the disclosure does not contradict the interests of the preliminary investigation and is not associated with a violation of the rights and legitimate interests of the participants criminal proceedings. Disclosure of data on the private life of participants in criminal proceedings without their consent is not permitted

  • 241 Code of Criminal Procedure of the Russian Federation
  • 10 Code of Civil Procedure of the Russian Federation
  • 11 APKRF
  • 166 Code of Criminal Procedure of the Russian Federation
  • Presidential Decree dated March 6, 1997 No. 188

Attorney-client privilege (secret of judicial representation)

Any information related to the provision of legal assistance by a lawyer to his client

  • 63-FZ "On advocacy and advocacy in the Russian Federation"

The secret of notarial acts (notarial secret)

A notary is obliged to keep secret information that has become known to him in connection with his professional activities. The court may release the notary from this duty of secrecy if a criminal case has been brought against him in connection with the commission of a notarial act. Since notaries provide information about their notarial acts to notarial chambers, officials of these chambers are also required to maintain notarial secrecy.

  • Fundamentals of the legislation of the Russian Federation on notaries

Secret of Confession

A clergyman cannot be held accountable for refusing to testify on circumstances that became known to him from confession.

Secrecy of voting

The counting of ballot papers is carried out in such a way that the secrecy of voting is not violated.

  • 51-FZ "On elections of deputies of the State Duma of the Federal Assembly of the Russian Federation"
  • 19-FZ "On the elections of the President of the Russian Federation"
  • 67-FZ "On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation"

Confidentiality of information about security measures in relation to a law enforcement official or regulatory authority

Disclosure of information about security measures applied in relation to a judge, juror or other person involved in the administration of justice, bailiff, bailiff, victim, witness, other participants in criminal proceedings, as well as in relation to their relatives, if this act was committed by a person to whom this information was entrusted or became known in connection with his official activities

  • 311 of the Criminal Code of the Russian Federation

Journalistic (editorial) confidentiality

The editors do not have the right to disclose in disseminated messages and materials information provided by a citizen under the condition of keeping them secret. The editors are obliged to keep the source of information secret and do not have the right to name the person who provided the information under the condition of non-disclosure of his name, except for the case when the corresponding requirement was received from the court in connection with a case pending before it. The editors do not have the right to disclose in disseminated messages and materials information that directly or indirectly indicates the identity of a minor who has committed a crime or is suspected of committing one, or who has committed an administrative offense or an antisocial act, without the consent of the minor himself and his legal representative.

  • 2124-1-FZ "On the Mass Media"

Secret of religion

Information about attitudes towards religion, about professing or refusing to profess religion, about participation or non-participation in divine services, other religious rites and ceremonies, about activities in religious associations, about teaching religion

  • 125-FZ "On freedom of conscience and religious associations"

The secret of information about military personnel of the internal troops of the Ministry of Internal Affairs

Information about the places of deployment or redeployment of formations and military units of the internal troops, as well as information about the military personnel of the internal troops who took part in suppressing the activities of armed criminals, illegal armed groups and other organized criminal groups, as well as information about their family members

  • 27-FZ "On the internal troops of the Ministry of Internal Affairs of the Russian Federation"

Other types of secrets

In general, Lukatsky found as many as 65 types of secrets in our legislation. The problem is that some of them mean the same concept, some are special cases of others (or overlap), and others are completely rudimentary...

Hello!

I suspect that the answer lies in paragraph 4, article 7 of the information law.

You suspect correctly.

Article 7. Public information

1. Public information includes generally known information and other information to which access is not limited.
2. Public information can be used by any persons at their discretion, subject to the restrictions established by federal laws regarding the dissemination of such information.
3. The owner of information that has become publicly available by his decision has the right to demand that persons distributing such information indicate themselves as the source of such information.
4. Information posted by its owners on the Internet in a format that allows automated processing without prior human changes for the purpose of reuse is publicly available information posted in the form of open data.

The essence of open data comes down not so much to providing the opportunity to get acquainted with information created by government bodies (since it is assumed that this is already provided by previous generations of laws), but to ensuring the possibility of its subsequent use by interested parties, through its analysis, visualization, and creation of applications using it .

In accordance with Part 4 of Art. 7 of the Law, information posted by its owners on the Internet in a format that allows automated processing without prior changes by a person for the purpose of reuse is publicly available information posted in the form of open data. As can be seen from this norm, information acquires the status of open data if several conditions are met:

1) such information must be posted by its owner, which is the corresponding public legal entity, on behalf of which a decision is made to classify information as open data by the relevant state or municipal authority in the prescribed manner (Resolution of the Government of the Russian Federation of July 10, 2013 .N 583

2) information must be placed in a format that allows its subsequent processing without human intervention (for example: CSV, XML, JSON, ODS, etc.). This condition is due to the fact that the concept of “open data” is inextricably linked with ensuring the compatibility of such data with various information systems for the purpose of their subsequent use in various ways. In this regard, if the data is placed in the form of a scanned but not recognized document, its further use is significantly difficult, since human intervention in one form or another is necessary to transform it into a structured form, therefore, the placement of such a document will not constitute “open data”.

Lists of information that are subject to posting in the form of open data were approved by Decree of the Government of the Russian Federation dated July 10, 2013 N 1187-r “On Lists of information on the activities of state bodies and local governments posted on the Internet in the form of open data.” Such information includes, in particular: a plan for conducting inspections of legal entities and individual entrepreneurs for the next year; the results of scheduled and unscheduled inspections carried out by the federal executive body and its territorial bodies within the limits of their powers; statistical information generated by the federal executive body in accordance with the federal statistical work plan, as well as statistical information based on the results of scheduled and unscheduled inspections; registers of licenses for specific types of activities, licensing of which is carried out by federal executive authorities.
The specific composition of the information provided for in this list is determined in accordance with the Methodological Recommendations approved by the Government Commission for the Coordination of Open Government Activities

Part 4 Art. 7 of the Law says nothing about the absence of legal restrictions on the subsequent use of information in the form of open data, while most definitions of open data mention this feature of open data as a constitutive one. As an exception, it is possible to impose the obligation to indicate the source of information and (or) distribute such information under similar conditions

Result: On the other hand, a systematic interpretation of the provisions of Art. 7 of the Law allows us to fill this gap. Since open data acts as a type of publicly available information, the provisions of Part 2 of Art. 7 of the Law, according to which each person can use such information at his own discretion. The free and free nature of the use of open data is also indicated in the Guidelines for the publication of open data.
2. Public information can be used by any persons at their discretion, subject to the restrictions established by federal laws regarding the dissemination of such information.

“Commentary to the Federal Law of July 27, 2006 N 149-FZ “On Information, Information Technologies and Information Protection”

(item by item)
(Savelyev A.I.)
(“Statute”, 2015)



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