Kazakhstan Looking to 2012 for Consideration of FOI Bill

16 August 2011

Freedom of information legislation in Kazakhstan will not be considered until 2012, according to a key member of Parliament, Zh. Asanov.

Asanov, who has been a leader in the drafting of a proposed law, said in July that further drafting work is necessary.  The draft law itself still needs elaboration, he said, and it is also necessary to draft amendments to other laws related to information access. Information on the situation comes from FOI activists, including from a summary prepared by Olga Didenko with the Kazakhstan Newspaper Publishers Association.

In the first half of 2010, members of Mazhilis, the lower house of the bicameral Parliament of Kazakhstan, set up a working group to draft a law “On Public Information Access.” The group was headed by Asanov.  The draft law was developed by the Institute of Parliamentary at Nur Otan party (the ruling, presidential party). The group included also representatives of the civil society.

The draft law is based on the laws of Russia and the Kyrgyz Republic.  In the fall 2010, the draft law was sent for review and analysis to Human Rights Bureau of the Organization for Security and Co-operation in Europe (OSCE) and the London-based freedom of expression advocacy group Article 19 (see Article 19 memo).  Some changes were made subsequently and the word “public” was dropped from the title, making the name “On Information Access.”

In June 2011, the work on the draft law by the working group was officially finished, and online discussion of the project began.  Work on the draft law is suspended following Asanov’s announcement.

Draft Praised, Criticized

Recently, comments on the draft law were presented by the Centre for Democracy and Law, a Canadian-based nonprofit research and consulting group.

CLD wrote:

The draft Law has many positive aspects, including extremely ambitious proactive publication requirements that, if implemented, would place a duty on public authorities to ensure that large amounts of information are made public. The law also includes well?written and effective requesting procedures, and deserves credit for its broad applicability.

At the same time, there are some major weaknesses with the draft Law that could largely undermine the right to information. The most serious problem is the lack of any centralised agency with responsibility for overseeing implementation of the law and hearing complaints regarding claims of public authorities failing to live up to their disclosure obligations. Without a meaningful system of oversight, there is a risk that strong aspects of the law will not deliver the openness they otherwise might. The draft Law’s proposed solution to this, namely to allow individual users to sue in court for damages for denials of access to information, is not a replacement for a proper system of administrative oversight.

The regime of exceptions in the draft Law is also problematical inasmuch as it is very overbroad and allows secrecy provisions in other laws, and even classification of information, to override the right of access. The draft Law also fails to create a clear presumption in favour of access to all information held by public authorities.

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