concept and system of the information of the limited access

The constitution of the Russian Federation, according to the international standards in the field of the rights and personal freedoms, in article 29 directly fixes «is right to search, receive, transfer, make and extend freely the information in any lawful way» 1.

Thus in article 55 of restriction of this right maintenance of defence of the country and safety of the state »[159 [160] are possible« only the federal act only in that measure in what it is necessary with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons.

The federal act «About the information, information technologies and about information protection» [161] in article 3 of a part 1 specifies among main principles of regulation of information sphere - a principle «freedom of search, reception, transfer, manufacture and information distribution by any lawful way» and «an establishment of restrictions of access to the information only federal acts». The essence of this principle in detail reveals in article 5 according to which the information should be subdivided on an access category into the information popular and the information, access to which is limited according to federal acts (the information of the limited access). The specified positions correspond in the whole logician of the right and are directed on achievement of necessary balance of interests between the right to the information, including the right to access to the information, and necessity of maintenance of protection of the rights and legitimate interests of other persons by means of an establishment of restrictions in access to this or that information.

In due course necessity of protection of interests of a society, the state and private persons has led to occurrence enough considerable quantity of the legal designs providing restriction of access to the information. It is possible to carry to such cases: a various sort of "secret", "secrets", «the confidential information». Thus a variety of terminology in the specified sphere is connected as with features of loan (transfer) of terms and legal institutions from the foreign legislation and practice, and with some specific features of terminology in various fields of activity or branches of law.

Most likely, mainly this circumstance it is possible to explain features of the use of terminology "confidential" or "privacy" in Soviet and then in the Russian legislation and the right concerning institute of the state secret or term occurrence «know-how (know-how)» that became unexpected, according to some authors, regarding 4 Civil codes of the Russian Federation.

The problem of ordering of the legislation in sphere of an establishment of restrictions on access to the information and as a whole the rights to the information was already repeatedly designated by modern researchers and experts. For example, by estimations of different authors, in the operating Russian


The legislation it is possible to find out from 30 to 70 versions of "secrets" and other types of information, access to which is limited, finding reflexion in the regulatory legal acts which sometimes in any way have been not connected between собой4.

For these reasons, it is necessary to approach consistently to consideration of this problematics, having begun with studying of the legal nature of the given phenomena and [162 [163] [164] [165] specifications of terminology and then to pass to a question on ordering of various types of information with the limited access to the operating Russian legislation and the right.

As a whole, the idea of restriction of access to the information should be connected with rooting in the legislation and practice of a category "secret", as, for example, "state secret" which has found reflexion in the legislation of Russian empire about шпионаже1. At the same time, the term "secret" in a historical retrospective show should be considered as the general for a designation of existence of restrictions of access to this or that information. In particular, in works of some authors in pre-revolutionary Russia it is possible to meet mentions of other versions of secrets which are already widely known to a science and practice, for example, trade secret, as a version commercial тайны2, or

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Lawyer secret etc.

In various reference books and sources to the term "secret" simple enough definition - «something hidden from others, known not by everything, a secret» 4 is made. In V.Dalja's Explanatory dictionary it is resulted two values of the term "secret". In a broad sense: «the secret - who that does not know, for it secret; all hidden, unknown, unknown» [166 [167] [168] [169] [170]; and in narrow sense: «secret - something is reserved hranimoe, that hide from someone with intention to conceal» [171]. Certainly, such treatment can be considered as "household", at the same time, we will notice, that the second, "narrower" understanding of "secret" formulated at V.Dalja is closer to the right and the phenomenon considered by us.

The modern science and the legislation are characterised by the ambiguous approach to understanding of the term "secret" and its places in the legal system, that time and again it was marked by many scientists and became a subject of discussions. Various treatments of the term "secret" can be met in L.O.Krasavchikovoj, L.E.Vladimirova, O.A.Gorodova, I.V.Smolkovoj's works, I.V. The cooper, A.A.Fatjanova, M.A.Vusa, S.V.Kuzmin and other authors.

For example, one of visible scientists-lawyers of pre-revolutionary Russia of L.E.Vladimir understood as secret «preservation in secrecy of the circumstance which disclosure would bring more harm, than advantage, understanding last not only in sense utilitarian, but also in sense distracted, i.e. a protection of existence and a food of moral ideals of human perfection» 1.

As it is fairly noted at I.V.Smolkovoj, such definition bears in itself more moral more likely, than legal loading and can be considered as «a principle reflecting interests of human culture» [172 [173].

L.O.Krasavchikova in the works results following definition of secret - «the certain information on actions (a condition and other circumstances) the certain person (the citizen, the organisation, the state), not coming under to disclosure» [174 [175]. Such definition, according to I.V.Smolkovoj, is not deprived lacks as it «does not include a number of essential signs of the secret connected with duties to store secret and


Responsibility for its disclosure ».

Widely enough known it is considered the concept of secret given in works by I.V.Smolkovoj which defines it as «the block of the confidential or confidential information (data) known or entrusted a narrow circle of subjects owing to execution of office, professional and other duties or personal errands in a special way protected by the law which disclosure can entail legal responsibility» 1.

M.V.Mazurov who rather positively has expressed definition by I.V.Smolkovoj, supplements it and gives it such treatment: «secret are protected by the law confidential and the classified information in the field of a private life of citizens, enterprise, financial, political, economic, military and other spheres, known or entrusted a certain circle of persons owing to their professional, office and other duties, illegal reception, use, which disclosure harms or creates threat of injury to the rights and legitimate interests of citizens, societies, the states and are involved by responsibility of guilty persons according to the current legislation» [176 [177] [178].

As a result it is possible to say that in a modern science two "basic" approaches to understanding of a phenomenon of secret were generated. According to the first of them the secret should be understood as data, access to which is limited, i.e. the information or object of legal relations. (M.A.Vus, A.A.Fatjanov, V.A.Mazurov, I.V.Smolkova). We will note, what exactly the specified approach as a whole dominates in the modern legislation in spite of the fact that its positions weaken a little. Among examples it is possible to specify the Law of the Russian Federation «About the state secret» where in article 2 it is understood as «data protected by the state in the field of its military, foreign policy, economic, prospecting, counterprospecting and operatively-search activity,


Which distribution can aggrieve to safety of the Russian Federation ». In such definition the instructions on the information and-or data are obviously enough looked through. The similar approach to concept of secret can be noticed in ch. 1 items 102 of the Tax code (tax secret) 1; item 1123


The Civil code (secret of the will); Federal act item 13 «About bases of health protection of citizens in the Russian Federation» (medical secret) [179 [180] [181]; Federal act item 15 «About communication» (secret of communication) [182]; Federal act item 26 «About banks and bank activity» (bank secret) [183] and in many other things cases.

The second approach treats the term "secret" through instructions on a certain legal regime of the information as it is done by O.A.Gorodov [184]. In such understanding use of the term "secret" in the legislation and practice is faster definition of a legal regime of the information rather than than the information. It is possible to explain it to that access restriction to the information leads to its uncertainty (entropy) for the third parties, in relation to this information. Thus, for the owner - not secret, and for the third parties - not the information, hence, concept "secret" it is not necessary to reduce it to the information. Such approach has been partially used in the information legislation. In particular, in the Federal act «About a trade secret» [185] where in article 3 the term «the secret (trade secret)» is treated as «a mode of confidentiality of the information, allowing its owner under existing or possible circumstances to increase incomes, to avoid unjustified expenses, to keep position on a commodity market, works, services or to receive other commercial benefit». In other words, the analysis of positions of the operating Federal act «About the information, information technologies and about information protection» also testifies that by its working out the second approach as in it as instructions on the information of the limited access the term "confidentiality" 1 is used was used in bolshej degrees. O.A.Gorodov at the analysis of these positions of the law unequivocally does a conclusion about sinonimichnosti concepts "secret" and "confidentiality" [186 [187] [188].

Frankly speaking, such understanding of the term "secret" is not deprived certain attractiveness, but at the same time here it is necessary to note and some negative moments of such approach. Following this logic, we can quite face a problem of subjectivity of perception, i.e. popularity or uncertainty of this or that information for the subject, on the contrary, the "secret" designation as information (data) concretises public relations through their object is better.

In addition to the aforesaid it is possible to mention one treatment of the term "secret" which sometimes can be met in works of experts of private law, such as S.Nesterov, M.J.Tikhomirov, N.Tkachenko [189], A.Egorov [190] considering it with reference to a trade secret as the right of subjects of enterprise activity (enterprises) on zasekrechivanie of financial, industrial, economic operations and the documentation on them. Such approach is not deprived the logic as actually with reference to private-law relations and cases when definition of object of protection, i.e. this or that information, depends entirely on desires and interests of the private person, such statement would be quite fair. On the other hand, to consider this definition as a basis for understanding of the term "secret" as a whole it is not obviously possible, whereas it is unacceptable with reference to public relations, as that state or the official secret.

Finally it is necessary to agree, apparently, with A.A.Fatjanova and I.V.Veldera's opinion and to say about integrated approach and mnogoaspektnosti concepts "secret", that, obviously, and explains plurality of its treatments in the scientifically-legal literature, the legislation and practice. Differently, definition of the term "secret" is often given from the different positions underlining features of its perception with reference to concrete cases or for the characteristic of public relations concerning this or that information.

In such conditions for an establishment of certain system of co-ordinates, considering, that the core in system of relations concerning this or that secret is the object, i.e. actually the information, the author suggests to use following terms for the characteristic of various aspects of secret: "secret" (as instructions on object, i.e. the information), «a secret mode» (as instructions on a confidentiality/protection mode) and «the right to secret» (as concrete competence of the person to establish a corresponding mode concerning this or that information). The offered system of the terms interconnected among themselves for the characteristic of "secret" reflects developed situation in the modern legislation and practice is better.

Acceptance in attention of all aforesaid allows to formulate certain signs of secret by I.V.Smolkovoj's example:

- «The secret is, first of all, data, the information;

- Data should be known or entrusted a narrow circle of persons;

- Data can be known or entrusted certain subjects owing to their professional or office activity, realisation of certain commissions; [191 [192]

- Data do not come under to disclosure (publicity);

- Disclosure of data (information) can entail approach of negative consequences (material and mental cruelty to its proprietor, the owner, the user or other person);

- On persons to whom the information which is not coming under to announcement is entrusted, the legal duty it lays to store;

- For disclosure of these data legal responsibility »1 is established by the law.

The specified signs are called as the cores in the majority of definitions of "secret" as that, together with concerning its versions that supposes its acceptance for a basis more often.

The similar list of signs can be met and at I.V. The cooper [193 [194] [195], however we will note thus a number of quite essential and fair specifications.

First, sometimes the term "secret" covers not only

The documentary information, i.e. that which is reflected in the material form, but also that, that exists in the ideal form (in consciousness of the individual in the form of images, and also told orally), that the personal and family secret, etc. approaches for the characteristic of such kinds of secrets, as secret of a confession,

Secondly, it is necessary to allocate instructions for valid or potential "value" of the information constituting secret especially. The given sign of "secret" is quite fairly mentioned by variety of authors as the category "value" precisely enough reflects the protected rights standing up for by it by the law and interests of subjects. Thus, as fairly


Marks I.V. The cooper, "value" of the information as secrets is covered or reached owing to uncertainty to its third parties, and actually, according to the author, in possibility of the control over its turn from the subject of secret, or, following modern terminology in the legislation, its owner who has at own discretion the right to limit access to it or to give it, and also to predetermine rules of use of such information by its transfer on the terms of confidentiality observance.

As a result it is necessary to underline the basic objective signs of "secret" as it has already been made in other works of the author:

- «The secret is an information in the most various forms of its display, including images in consciousness of the individual, and also oral data;

- The information has the valid or potential value for the owner who has the right to supervise on the basis of the law a turn and, first of all, access to it, and, as consequence, to limit it;

- Disclosure, easy approach to the information will lead to negative consequences (a material damage, moral harm) for the owner and in some cases for other persons;

- The owner of the information takes measures on information protection, including restriction of access or the control over access to it;

- For the disclosure, not authorised access to the information, and also sometimes for fulfilment of other actions (connected with infringement of an order of use, a turn) it is established juridiche skaja responsibly st »[196].

As the comment to the signs named above it is required to give the explanatory concerning use in this case and as a whole in work of the term "owner". In the work the author uses it in the Federal act context «About the information, information technologies and about information protection», and also parts 4 Civil codes of the Russian Federation, unlike works of other authors published before working out and coming into force of given certificates when in the scientifically-legal literature and the legislation the approach to the information (the documentary information) as to the legal object of the property or close to it on sense dominated. It represents an urgency for an estimation of definitions, results and conclusions in the majority of scientific works which use actively terms «the proprietor of the information», «the owner of the information» or similar to them. In such context the author of work divides as a whole idea about inapplicability to the information of a category "property right" and is faster to necessity to use a category of "exclusive rights" which can be at the subject concerning the information, in view of special character or special properties of last. Therefore in the present work concept «the owner of the information» is treated in a context of article 2 of the Federal act «About the information, information technologies and about information protection» as «the person who has independently created the information or received on the basis of the law or the contract the right to resolve or limit access to the information defined to any signs».

Thus, taking into account the designated signs it is offered to use the following treatment of concept "secret" - «it is the information in the most various forms of its display (documented, existing in the form of images in consciousness of the individual, in the oral form), having the valid or potential value, access to which is limited on the basis of the federal legislation its owner in this connection concerning it measures on its protection are taken, to access restriction, and disclosure, infringement of which rules of a turn attracts legal responsibility» [197].

Other aspect demanding separate studying, the problem of a parity of concepts is: "secret", «the information with the limited access», «the confidential information» and "secret", and also a question on classification and ordering of the information of the limited access.

Some mess existing at the moment in this question is caused sometimes by "unsystematic character" of the Russian legislation in definition of versions of the information with the limited access.

It has begun with occurrence in Federal act article 10 «About the information, information and about information protection» 1 classifications of the documentary information on opened and the limited access. Last was thus subdivided into the information constituting the state secret, and the confidential information. Thus, the state secret was considered as a special, separate type of information with the limited access in relation to which the term "privacy" and-or derivative of it was applied. Other versions of the information of the limited access were considered as the confidential information which was defined as «the documentary information, access to which is limited according to the legislation


The Russian Federation ». In a reality such classification was actively used not only in relation to the documentary information, but also concerning other types of information, access has been limited according to the law. Confirming to it it is possible to mention« the List of data of confidential character », established by the Decree of the President of the Russian Federation № 188 from March, 6th, 1997 which is often considered as attempt of certain ordering of kinds of the confidential information existing for that period. Finally the system of the information with the limited access according to requirements of the Federal act [198 [199] [200]« About the information, and information protection »1995 года1 and already named above the list of the information of confidential character can be presented information as follows (fig. 1 see).

Fig. 1

With occurrence in 2006 of the Federal act «About the information, information technologies and about information protection» [201 [202] system of the information of the limited access has essentially changed.

First, in the novel classification of "information" depending on access to it, instead of «the documentary information» has been spent.

Secondly, in it there was a new definition - «confidentiality of the information» which is treated as «obligatory for performance by the person who has got access to the certain information, the requirement not to transfer such information third parties without consent of its owner» 1 as it is visible, here is absent any mention of «the confidential information».

Thus, at the heart of the Federal act «About the information, information technologies and about information protection» other idea of ordering of the information with the limited access [203 [204] lays essentially. Hence, it is possible to speak about basic refusal of the legislator of its division into the state secret and the confidential information and, apparently, it is necessary to talk about versions of restriction of access to the information, i.e. on information versions, access to which is limited according to the federal act.

As a whole "confidentiality" according to the law specified above can be considered as a sign of the information with the limited access and as certain instructions on its legal regime. At the same time the law does not result the exhaustive list of types of information of the limited access, and only names its typical kinds, in which number: state, commercial, professional, office, personal, family and other secret. According to the above-stated, according to Federal act requirements «About the information, information technologies and about information protection» it is possible to present system of the information of the limited access schematically as follows (fig. 2 see).

Fig. 2.

It is remarkable, that such concept of ordering of the information of the limited access has found an ambiguous estimation in the scientific environment. The principal cause of it is covered in different treatment and value which are given to terms: "confidentiality", "privacy",

«The confidential information».

The part of authors considers these concepts as equivalent and allocates as the core, or base, the term «the confidential information» for a designation of all types of information with limited доступом1. However, as fairly notices L.K.Tereshchenko, the term «the confidential information has the certain value owing to what not all information with the limited access can be considered as that» [205 [206]. Value of the term

"Confidential", i.e. literally "confidential", concerning the information it is more likely applicable to transfer cases its owner to other persons, i.e. "konfidentam" to which the duty is simultaneously assigned to provide its confidentiality or, otherwise, «to keep it as fiduciary». The last is caused by presence at the owner of the right protected by the law or interest which can appear under the threat as a result of transfer or distribution of the information without its consent to the third parties. Actually "confidentiality" is the requirement turned exclusively to the authorised representative - konfidentu, got access to the information legally, i.e. owing to express indication in the law on necessity of transfer to it of those or other data or at will of the owner. Thus last has the right to dispose and supervise often a turn of this information (secret) and in many cases, at the desire, can remove restrictions in access, having made its popular.

Let's disassemble some such examples more in detail. Some existing versions of secrets actually cannot be considered as «the confidential information», for example - personal, family secret, secret of a private life and others, so-called "chastnoohranjaemye" secrets. In this case the owner or the subject of secret independently incurs obligations on its protection - i.e. simply does not transfer or does not inform its other persons and consequently, konfidenty simply are absent. In case of transfer of these data to other persons - they become konfidentami. We will notice, that thus the mode of secret or the information, as a rule, changes. In particular, at an information transfer in the state bodies it is protected already as the official secret or its versions (secret of civil registration, tax secret, etc.) . If it to transfer in the commercial or noncommercial organisation - as personal data, secret of a confession, bank secret etc. Differently, confidential the information becomes only in case of transfer or its message konfidentu which on the basis of the law is forced to provide its confidentiality in interests of the owner.

From the aforesaid the requirement about "confidentiality", statutory follows, that, concerns exclusively to konfidentu, whereas the owner provides information protection (limits access to it), more often, voluntary, operating in the interest the same as agrees on its general availability.

It is necessary to notice, that the term "confidentiality" is used also in relation to labour relations for a designation of the requirement from the employer to the worker. If the owner of the information (secret) is the legal body or the individual businessman konfidentami there will be its workers or employees who take up voluntary obligations on maintenance of confidentiality of the information received by them with a view of realisation of the official duties.

Similarly affairs with use of the term "privacy" in relation to the state secret are. The state in the name of its bodies will be the owner of secret in that case, and some kind of konfidentami - civil servants and legal bodies who incur corresponding obligations and possess the special right, or «the admission to the state secret». Moreover, the state and its bodies as owners have the right to accept and use independently measures on state secret protection, to define parametres of its legal regime, and also it to "declassify".

In this connection offered by operating Federal act «About the information, information technologies and about information protection» [207] concept of ordering of the information of the limited access for a number of reasons can be named by successful only partly.

Among principal causes it is necessary to name not only already noticed variety of kinds of "secrets", but also than defensible substitution of the term «the confidential information» on "confidentiality" that has more likely brought still the big mess in this question logically is not enough. At the moment in regulatory legal acts these terms are used simultaneously. Thus in most cases simple replacement of these terms basically is impossible and demands logic evolution of the text normativnopravovogo the certificate.

Taking into account the developed situation in the scientific literature other alternative classifications of the information of the limited access have been offered. E.K.Volchinskaja1, in particular, suggests to classify secrets on primary (natural) and derivative. It carries to the first group «the secrets directly connected with ability to live of the subject, as that: personal secret - the physical person, a trade secret - the legal body (the subject of enterprise activity), state and the official secret - body state


The authorities ». It carries mainly professional secrets To the second group (medical secret, secret of a confession, secret of bank contributions, tax, notarial, etc.).

The most essential distinction between primary and derivative secrets, according to E.K.Volchinsky, are the rights of the subject on an establishment and change of a mode of restriction of access to the information which are present at it at a case with primary secrets, and actually only a duty on observance of its confidentiality in a case with derivative secrets.

Objectively given classification is not deprived sense and inherently is idea reflexion otgranichenija the confidential information from other types of information of the limited access. According to this classification it is necessary to carry the confidential information to number of "derivative secrets», i.e. those cases, when the information trusts the subject of secret (i.e. the owner) in other person (konfidentu) at compulsory condition of preservation of its confidentiality. [208 [209]

Thus, according to E.K.Volchinskoj1, the part of secrets, as for example the official secret, can consolidate in itself simultaneously the information entrusted public authorities by other persons on the terms of observance of its confidentiality, and the information received by the state body in the course of the activity which distribution can lead to negative consequences. It is obvious, that in its first case it is necessary to carry to number of "derivative secrets», and in the second - to number "primary".

The classification specified above is far not unique and last in own way, that leads to thought on necessity of correlation of existing modes of the information of the limited access among themselves even more. Also working out of rules some kind of "transformations" of a mode of the information which general availability would lead to infringement of the rights and legitimate interests of a certain circle of subjects, from one mode of restriction of access (secret) in other similar mode thus is required.

It can result set of the examples, at least already mentioned institute of the official secret which legal regime is used not only for protection of the information created by bodies state and the municipal authority in the course of realisation of the activity, but also for protection of interests of citizens and legal bodies which have entrusted or have transferred them data on the terms of confidentiality.

It is necessary to carry institute of personal data to practically similar cases. As a whole personal data it is impossible to consider completely as the information of the limited access as the law supposes possibility of their existence in a mode of the popular information [210 [211]. Thus, they can be both popular, and the confidential information.

On the other hand, the analysis of existing legislative guidelines, that was marked earlier автором1, allows to speak about some kind of «confidentiality presumptions» personal data until by the operator it is not received the unequivocal consent of the subject of data to their general availability or if it specially is not established by the federal act.

Finally occurrence of most this category in the Russian right and the legislation still creates weight of problems which speak partially misunderstanding of how the mode of personal data as information of the limited access corresponds with other modes of the information. For example, the part known institutes of secrets in the Russian legislation assumes for a long time protection of the information received from physical persons, i.e. actually personal data. On occasion it can be only a part of the maintenance of these secrets (bank secret, the official secret, tax secret, etc.), in other cases, on the contrary, can develop impression, that they have initially been created for protection of personal data and maintenance of their confidentiality by transfer to their state bodies and local governments or other subjects (secret of civil registration, secret of adoption, medical secret, etc.) . In this connection there are quite fair questions on correlation of the specified modes among themselves and obvious difficulties in the practice, connected with necessity of performance of requirements of the legislation on personal data. We will notice, that during the Parliamentary hearings [212 [213] devoted to problems of coming into force and realisation of the Federal act «About personal data», the similar question was set repeatedly.

It is necessary to recognise, that while the current legislation is not capable to give of these questions of unequivocal answers. The abundance of every possible "secrets" more likely negatively affects protection of the rights and legitimate interests of owners of the information, and also on realisation of the right to the information of other persons. As it fairly marks L.K.Tereshchenko, «at the moment the detailed and practical decision of this question can be in acceptance of unequivocal legislative guidelines which would give a definite answer on a question on hierarchy of existing kinds of secrets and their modes, and also about rules of their transformation» [214].


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A source: Bundin Michael Vjacheslavovich. the PERSONAL INFORMATION of the LIMITED ACCESS GIVEN In SYSTEM. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

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