Chapter 4. Review mechanisms

Means for reviewing refusals to provide information

Article 18 of ATIL provides: “1. Decisions and actions (inactions) of information holders, including a governmental body, a local self-government, an organisation, an official, a public servant, violating the rights of information users may be appealed against in a superior body, to a superior official, in the Republic of Kazakhstan, and/or in court.”

According to the current Law on Access to Information and the Regulations on the Procedure for the Activity of the Commission, the CATI does not have the authority to review complaints and appeals by legal entities and individuals of an information holder’s refusal to provide information. That competence is assigned to the government itself and to the judiciary.

Administrative and judiciary means of reviewing a refusal to provide information

Pursuant to the aforementioned Article 18 of the ATIL, there are two categories of appeal:

• Administrative, including a hierarchical appeal to superior body or a superior official;

• Judiciary, by filing an appeal.

The information’s user may also choose how to complain of a violation of the right to access to information. These means of appeal can be used in parallel.

The Kazakhstan Human Rights Commissioner’s intervention

The Human Rights Commissioner is the Kazakhstan Ombudsman. It monitors the observance of the human rights and freedoms and takes measures to restore violated rights and freedoms. It is appointed by the President of the Republic of Kazakhstan and is independent in carrying out its activities. The ATIL does not provide a role for the Human Rights Commissioner in monitoring or overseeing implementation.

In several OECD countries, the Ombudsman oversees implementing the law on access to information (e.g., in Sweden, Finland, Norway, Denmark, and New Zealand). This independent authority is responsible for examining citizens’ complaints against the administration. As it is not part of the administration that denied access to information and against which the individual is complaining, the use of an ombudsman is beneficial. This system is satisfactory for the countries that use it.

In OECD countries, it is also customary for all institutions involved in access to information to meet and exchange information and experiences. For example, Canada’s Information and Privacy Commissioners and Ombudspersons created a resolution to describe the models for collaboration among their institutions.

It is recommended that:

• In the context of its competencies, the Human Rights Commissioner takes a general interest in issues relating to access to information;

• The CATI should also establish on-going relationships with the Human Rights Commissioner to promote access to information and develop synergies.

Administrative liability

According to Article 18 of the ATIL, an unlawful restriction of the right to access to information may be appealed to a higher state body or to a court. In Kazakh law, complaints against the actions or inaction of officials, as well as decisions of state bodies, are submitted to a higher-ranking official or body or to the court no later than three months after the citizen became aware of the commission of an action or decision by the relevant official or body. If the appeal period expires, this does not constitute grounds for a state body or official or court to refuse to hear a complaint. The reasons for missing the deadline are clarified when the complaint is examined on the merits and can be one of the grounds for refusing to satisfy the complaint.

In accordance with Article 456-1 of the Code of the Republic of Kazakhstan on Administrative Offenses, administrative liability is foreseen for an illegal restriction of the right to access to information.

The unlawful refusal to provide information or the provision of knowingly false information in cases where such information is subject to provision at the request of the user of information in accordance with the legislation of the Republic of Kazakhstan, with the exception of actions for which liability is provided for by other articles of this code, shall be sanctioned by fines.

Knowingly publishing false information in the mass media, on the Internet resource of the information owner, on the Internet portal of open data or in other ways provided by the legislation, likewise entails fines that are categorized into groups.

The illegal attribution of limited access to information, except for actions provided for by part three of Article 504 of this code, entails a penalty for officials in the amount of twenty units;

The acts provided for by parts 1 and 2 of this article, committed repeatedly within a year after the imposition of an administrative penalty, entail a fine.

Without a thorough evaluation, the system of judicial review of violations of the right of access to information may appear satisfactory, because it is exercised by an institution independent of the administration, in accordance with the judicial procedure that is designed to guarantee the rights of individuals.

However, it is worth recalling the reasons that led the OECD countries to introduce an alternative method in this domain to recourse to the courts: the simplicity, speed, and economy of the review by an institution dedicated specifically to this function, which must also be independent of the administration which has refused access to information.

References

Website of the Permanent Mission of the Republic of Kazakhstan to the United Nations. Website accessed on September 13, 2018 http://kazakhstanun.com/kazakhstan-policy/kazakhstan-human-rights/

Website of the Office of the Information Commissioner of Canada. Website accessed on September 13, 2018 http://www.oic-ci.gc.ca/eng/2013-reading-room-other-documents-of-interests-2013-salle-de-lecture-autres-documents-interests_4.aspx