The COVID-19 Pandemic and the Right to Know in Russia

Published: 19 Jun 2020

By Dariana Gryaznova, EHRAC Oak Fellow. Dariana is a human rights lawyer from Russia who specialises in cases concerning access to information, freedom of expression, and the right to respect private life. She is currently studying human rights law at Queen Mary University of London. Prior to starting her studies, she worked in Saint Petersburg with Team 29, an association of lawyers and journalists fighting for the rights of Russian citizens to information access and distribution.

Introduction

Freedom of information is a fundamental right. It serves as a basis for the effective realisation of other rights, and ensures openness, transparency and trust in society. Access to information is especially important now. As the COVID-19 pandemic sweeps the globe, governments are forced to make unprecedented decisions which significantly impact our lives and rights.

UN Secretary-General António Guterres has urged that “this is a time when, more than ever, governments need to be open and transparent, responsive and accountable to the people they are seeking to protect.” The Council of Europe (“CoE”) has also stressed, on several occasions, that “the crisis situation should not be used as a pretext for restricting the public’s access to information”, and that “official communications cannot be the only information channel about the pandemic.”

Over the past few months, we have witnessed radically different responses by states to the emergency. Some of these responses have resulted in the suspension of obligations to provide information about government activities, either unintentionally (because of the reallocation of resources) or intentionally (to avoid public criticism).

This article provides a non-exhaustive overview on the impact on the public’s right to information in Russia during the pandemic. The crisis has intensified existing trends relating to the lack of transparency in Russia and has underlined, more than ever, the importance of civil society and independent journalism in the fight against the distortion of truth.

The Right to Information in Russia

Russia has historically been characterised by excessive state secrecy. The right to information, as an explicit constitutional right, appeared only in 1993 with the adoption of the Russian Constitution. Under Article 29(4) of the constitution: “everyone shall have the right to freely look for, receive, transmit, produce and distribute information by any legal way. The list of data comprising state secrets shall be determined by a federal law.”

For a long time, the right was inconsistently applied. Accessing information about the activities of governmental bodies proved problematic. There persisted a misleading idea that an individual or an organisation had to justify a need in the requested information in order to obtain it.

Due to the efforts of civil society in its fight for access to information held by public authorities, a series of federal laws were adopted in the 2000s. The laws were developed in cooperation with civil society and clarified how the right to information should be exercised. They included: Federal Law no. 149-FZ (of 27 July 2006), “On Information, Information Technology and Protection of Information”; Federal Law no. 8-FZ (of 09 February 2009) “On the Provision of Access to Information on Activities of Government Bodies and Bodies of Local Self-Government”; and Federal Law no. 262-FZ (of 22 August 2008) “On the Provision of Access to Information about the Activities of Courts in the Russian Federation”.

The legislation was broadly progressive and corresponded with international standards. It is now directly stated in the federal law that, in the absence of legal restrictions on the requested information, an individual has the right not to justify her interest in it.

In theory, the laws should provide individuals with the explicit right to request and receive information, offer a clear mechanism for freedom of information requests, and oblige governmental bodies to proactively publish information online.

However, a sustained crackdown on civil society in Russia since 2012 resulted in the significant infringement of supposedly guaranteed rights. Among other measures, the number of categories of information with restricted access has been expanded, a centralised internet blacklist has been created, and the NGO Law on “Foreign Agents” was adopted. These changes have thrown the country back to a level of transparency reminiscent of that of the USSR.

Freedom of Information and the COVID-19 Pandemic

Moscow commuters, 24 March 2020

There are various ways in which authorities can make information public under Russian legislation. But the proactive publication of information online and the granting of certain requests have remained the primary modes of access and disclosure during the COVID-19 pandemic. As set out below, the pandemic has further exacerbated problems inherent to access to information held by public bodies.

Proactive Publication of Information

In practice, if the law does not explicitly state that particular information has to be published, it will most likely not be published on a state agency’s webpage. Despite progressive legislation, it is simply not possible to legislate for every eventuality.

This pattern is having a seriously negative impact. The current situation is complicated by the fact that state bodies, which are already under pressure, do not perceive free information to be a priority. Article 19, which specialises on such issues, argues that “it is not enough that governments maintain their existing transparency obligations” and that “states should engage in more proactive publication of information.”

In mid-March 2020, the Russian Government launched an official website to inform the public about COVID-19-related issues. The website is frequently cited by state-controlled mass media and officialdom, but it cannot possibly cover every aspect of information relating to public bodies. It also does not compensate for the lack of proactive publication by other state agencies. Since the creation of the website, several mistakes, inaccuracies and contradictions have been found.

Reliable and accurate information is crucial in order to avoid dangerous disinformation. Its importance can be illustrated by the example of data publicised about the coronavirus mortality rate.

According to official statistics as of 18 June, Russia has registered 7,660 deaths (with 561,091 cases of infection). If accurate, this would be one of the lowest mortality rates in the world.

There are, however, doubts about such figures. At a media briefing on 10 June, a representative of the World Health Organization (WHO) stated that “the low death rate [in Russia] is difficult to understand”.

Detailed analysis conducted by both Russian media and foreign media suggests a huge number of unreported COVID-19 deaths. The New York Times and Financial Times claim that Russia’s coronavirus death toll could be 70% higher than official government figures.

Such media reports have caused a storm of indignation among Russian officials and state-controlled mass media. The Ministry of Foreign Affairs called upon the newspapers to retract their stories and the State Duma demanded that their reporters be stripped of accreditation.

Two weeks after this demand was issued, the Moscow Healthcare Department doubled the official COVID-19 death toll in the capital for April 2020, taking into account the recommendations of WHO.

On 13 June, with a two-week delay, the Federal State Statistic Service published the number of deaths from coronavirus in April 2020. The figures are twice as much as the previously published figures by the Emergency Response Center. It is not fully clear why there is such a discrepancy between the two sets of figures.

Disagreements over statistics relating to the death toll among health workers also persist. Whereas the Ministry of Health officially reported 101 deaths on 26 May, human rights activists independently recorded at least 186 deaths a week earlier.

All resources are being directed towards fighting coronavirus, and a huge amount of money is being spent to manage the crisis. Problems surrounding the misuse of public funds do not simply disappear during a pandemic. The importance of publishing accurate financial information has therefore been stressed in guidelines produced by Article 19. Several alarming concerns have been raised about possible misuses in the allocation of public funds in Russia during the pandemic, including for the purchasing of medical masks and in PR-support for national health projects.

At a time when the first wave of coronavirus has not yet come to an end, Russia is lifting lockdown restrictions ahead of schedule in an abrupt policy shift. The driving force behind this decision may be the upcoming 1 July plebiscite on constitutional amendments that could extend Vladimir Putin’s presidency to 2036. Some fear that the authorities will withhold accurate statistics relating to the COVID-19 pandemic in order to avoid further criticism of their actions.

Only comprehensive information can reveal the true scale of the situation and ensure the accountability of government actions. The authorities must provide as detailed information as possible without omissions.

Providing Information Upon Request

With regard to the provision of public information upon request, it also holds true that problems which existed prior to the crisis have become exacerbated over recent months.

State agencies tend to issue responses to freedom of information requests on the last day of the legal time limit. This is 30 days for individuals and organisations (including NGOs, lawyers, and human rights activists) and 7 days for mass media.

These timeframes have not changed during the pandemic. Taking into account how rapidly the situation is evolving, and the public’s interest in accurate information, authorities are under pressure to respond more quickly.

State agencies often simply do not provide requested information, citing the fact that the information is already available on the internet (one of the legal grounds for refusal). In practice, the authorities rarely provide a direct link as to where the requested information can be found, and do not examine whether the published information is actually relevant to the request.

For example, when for the first time in five years Chelyabinsk did not published data on the number of deaths registered in the region (for April and May), journalists made a freedom of information request. Regional authorities refused to disclose the figures, citing the fact that the necessary statistics had already been published online.

Some journalists have claimed that freedom of information requests (as they are currently understood by public authorities) are no longer effective instruments to obtain information. The Ministry of Health and the Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing, which are the main agencies responsible for dealing with the pandemic, are reluctant to establish contact with independent mass media or respond to requests. Certain bad practices persist whereby agencies provide a formalistic response without providing the requested information in order to comply with the “letter-of-the-law”.

Isolation hospital № 2 (Moscow)

It is not all negative, however. For example, the Moscow City Clinical Hospital No. 52 permitted two journalists to spent more than 24 hours documenting the work of doctors and nurses. The Federal State Statistic Service has also more often responded to requests. But it is the exception that proves the rule.

Sometimes mass media and activists receive information, but this is usually a result of painstaking research of open source material or based upon personal connections within state agencies (usually off-the-record and anonymous).

The issues surrounding information requests can be illustrated by the example of access to information concerning the spread of COVID-19 in places of detention and mortality rates in penitentiaries. The CoE’s Commissioner for Human Rights, Dunja Milatović stressed the fact that convicted prisoners and persons on remand are some of the most vulnerable groups during the pandemic. As of 1 May 2020, there were 511,030 individuals in Russia’s correctional system facilities.

Human rights defenders have claimed that the Federal Penitentiary Service of Russia (“FSIN”) and its regional departments do not often respond promptly to requests, provide inadequate responses and even warn off activists with threats of criminal liability for the dissemination of “fake news”.

Mostly as a result of public pressure, the FSIN has published select statistics. But despite the fact that it keeps reporting that it is taking “all necessary measures aimed to protect inmates and employees of the penal system”, human rights activists and lawyers are receiving disturbing information as to the spread of infection in places of detention. Activists consider it to be unacceptable that the penitentiary system operates under an “information blockade, and that [its] institutions are completely closed off from society, especially during the epidemic.” Therefore, human rights defenders have even launched a special project to monitor the situation in prisons and pre-trial detention centres.

Freedom of information requests are an important instrument for investigative watchdogs to obtain information that is not placed in the public domain. The current crisis requires the authorities to avoid formalistic and dismissive responses in order to safeguard human rights and fundamental freedoms. In particular, state agencies should answer requests more rapidly and substantially (or at least prioritise requests from NGOs, mass media, and lawyers).

Fake News or the Truth?

Inconsistencies between officially reported information and claims by civil society lead to unpleasant (albeit predictable) consequences, including prosecutions for the distribution of so-called “fake news”. Russia is one of a few countries which has a special law for this purpose, and it has been actively applying the legislation.

The Russian authorities have the ability to restrict access to online sources circulating “fake news” about the spread of coronavirus. Individuals or organisations can become subject to administrative-offence charges. At the height of the pandemic, the Criminal Code of Russia was amended to criminalise the “public dissemination of knowingly false information about circumstances that endanger the lives and safety of citizens” under Articles 207.1 and 207.2.

According to a report by Agora International Human Rights Group, the authorities have initiated at least 157 administrative cases on “fake news” and 42 criminal cases in 24 regions under Article 207.1 of the Criminal Code since the beginning of the coronavirus pandemic. According to Agora, this new article has become a convenient tool to punish activists for their criticism of authorities. 17 out of 42 cases are connected with statements made by activists, journalists, bloggers and deputies. For example, the first criminal case under Article 207.1 was initiated against an activist of the Alliance of Doctors trade union for dissemination of information about insufficient measures to prevent the spread of infection. Sanctions have even been used against ordinary citizens, as well as media representatives and whistleblowers.

Valid concerns have been raised that the COVID-19 crisis has initiated “a censorship pandemic” and that “fake news” laws are aimed at cracking down on government critics.

Conclusion

The Russian Government is far from transparent. Public officials consistently prove reluctant to provide information, especially relating to the present pandemic. In the meantime, ensuring access to information (and particularly encouraging the proactive release of information by authorities) remains crucial. It maintains trust between government and citizens, stops the dissemination of dangerously false information, and impacts on citizens’ compliance with official recommendations.

According to an academic poll, 33% of Russians believe that COVID-19 is either fabricated or harmless. A lack of accurate information surrounding mortality rates has surely played a part in this belief. Despite this, the government has imposed and continues to impose serious restrictions on human rights in order to protect public health. Various initiatives have been introduced, including the expansion of mass surveillance. These stark contradictions create confusion and additional uncertainty.

Once progressive legislation in the sphere of access to information in Russia has been hindered by the lack of political will to build and promote a culture of transparency, and to implement certain key provisions in practice. Over recent years, the political regime has tightened, and the right to freedom of information has been restricted.

This trend has intensified during the COVID-19 pandemic. In this crisis situation, the authorities have employed a typical response: publishing minimal information to formally comply with the “letter-of-the-law”, manipulating statistics, and introducing methods of censorship. This leads to further refusals by citizens to follow official recommendations—which can prove fatal.

Beyond the relationship between the state and the individual, full and accurate information is necessary for scientists and experts to research how best to manage the crisis. Access to information is critical for the human rights sector, and independent media, to play its vital role as a public watchdog.

Freedom of information is instrumental in safeguarding other rights and freedoms. Without free information, human rights abuses occur in secret. Transparency remains an essential tool for public control over opaque institutions, in order to highlight deep-rooted issues, and to hold decision-makers to account.