Draft Kazakhstan FOI Law Needs Improvement: OSCE

1 October 2015

Freedom of information legislation being prepared in Kazakhstan needs improvement, according to an analysis prepared by the Organization for Security and Co?operation in Europe (OSCE).

The critique was presented at a Sept. 25 conference, according to a report by the OSCE, one of the sponsors.

Irish FOI expert Maeve McDonagh presented an evalution of the draft law that she prepared for and with the OSCE. She was one of the speakers who appeared before some 100 high-level governmental officials, parliamentarians, representatives of civil society, national and international legal experts as well as journalists.

The new draft “constitutes an improvement to earlier draft versions,” according to the OSCE analysis, but “there is a need for greater clarity on both sides of the balance between the free access to information on the one hand and legitimate and necessary restrictions on the other.”

The draft law “appears to proceed from the assumption that there are certain types of information which are per se restricted, and other types of information which are accessible,” according to the commentary, which continues:

However, it is not possible or practicable to categorize all information in this manner. International standards require that the principle of maximum disclosure be used as the starting point for any type of regulation of access to information, regardless of its classification as open or secret; this does not mean, however, that such information will automatically be disclosed, as necessary and legitimate grounds for non-disclosure may exist. At the same time, listing in a law which legislation shall be accessible, and which shall not, may lead to a situation where certain information is made public which should remain undisclosed, such as information on the private life of individuals.

The analysis says “provisions in the draft Law on liability for non-compliance, oversight and appeals require further clarification, and it is recommended to enhance the

mechanism for implementation of the law, including by creating the position of an Information Commissioner, as recommended in previous Opinions.”

The OSCE recommended the following amendments to the current version of the draft Law:

– To remove the differentiation between restricted and non-restricted information throughout the draft Law, and replace it with a system whereby public information is a priori accessible to the public, unless there are serious and weighty reasons for non-disclosure [pars 16-19];

– While retaining the recommendation that all information should in principle be accessible to the public, to include the commercially sensitive nature of certain information and the right to privacy of individuals as potential grounds for restriction [pars 27-29];

– To narrow the scope of grounds for rejection under Article 11 par 18 to cases where the provision of information would genuinely interfere with the integrity of the decision-making process [par 35];

– To introduce an independent Information Commissioner into the draft Law [par 55].

– To make the language of the proposed Article 159-1 of the Criminal Code more specific, by stating which actions will lead to criminal liability [pars 51-53] and to clarify provisions on the appeals procedure [pars 57-60].

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