Freedom of Information: A Comparative Legal Survey - Federation of ...

not apply to information contained in citizens’ suggestions, complaints and petitions to public bodies, or
to access by public bodies to information held by other public bodies. These would appear to be blanket
exclusions from the Law and the rationale for both is unclear.
Article 4 provides that restrictions on access to information are legitimate only if they are in conformity
with Article 5, and that any decision to refuse access must be motivated by and founded upon Article 15.
Article 5(1) recognises two categories of confi dential information: State secrets, in accordance with Kyrgyz
legislation, and confi dential information, either offi cial secrets or private secrets, the latter also as provided
for by Kyrgyz law. Article 5(2) defi nes offi cial secrets as “technical-organisational rules of protection of the
work” of public bodies and the “concrete content of closed hearings and sessions”, including the position
taken by offi cials during closed sessions and votes. Article 5(3) notes the obligation, as set out in other
laws, of offi cials to keep certain information secret to protect private interests, such as privacy, commercial
interests and professional confi dentialities.
For its part, Article 15 provides for the rejection of requests for information on the basis of secrecy laws,
where the request is not in conformity with the rules regarding oral requests (as provided for in Article 8),
where the same public body is already considering a request by the same person on the same subject,
or where the body does not hold and is not obliged to hold the information. Apart from the rule regarding
secrecy laws, these are legitimate grounds to refuse requests.
The approach to exceptions as set out in Article 5 (and to some extent Article 15), whereby reference is
largely made to secrecy laws for the content of exceptions, is problematical for a number of reasons. Most
important is the fact that the existing secrecy laws are most unlikely to respect the openness standards
that underpin the right to information legislation. The scope of exceptions is unlikely to be clear and narrow,
there are likely to be at least some exceptions which do not include a harm test, so that disclosure may
be refused even where no harm is threatened, and secrecy laws are unlikely to include public interest
overrides (whereby information must still be disclosed, even if harm may be caused to a legitimate secrecy
interest, where this is in the overall public interest).
It may also be noted that the additional exceptions provided for in Article 5 are very problematical,
particularly the one purporting to protect the work of public bodies through technical-organisational rules.
This is analogous to the ‘internal deliberations’ exception found in many right to information laws which,
if not drafted very carefully, has proven to be susceptible of serious abuse by offi cials hostile to openness.
The formulation in the Kyrgyz RTI Law appears to be very wide and therefore open to such abuse.
On a more positive note, Article 4(4) provides that where a document contains restricted information,
any information in that document which is not restricted should still be disclosed (a form of severability
clause). Furthermore, Article 6(3) stipulates that access already having been provided through different
means cannot be basis for rejecting a request.
Appeals
The Kyrgyz RTI Law refers only briefl y to appeals, in Article 35, providing that any refusal to provide
information, or any breach of the provisions of the law, may be appealed to a superior offi cer, to the
Ombudsman or to the court, in accordance with existing legislation.
It thus establishes a right to lodge an internal appeal to a superior offi cer, which can be a useful way of
resolving many problems, particularly at the outset of a new right to information system, when lowerranking
offi cers may be reluctant or unable to change their established practices and operate more openly.
At least some basic procedural rules regarding the processing of such complaints would be a useful way
of ensuring at least that they meet consistent minimum standards. A right of appeal to the Ombudsman is
also positive, as a form of administrative review that is normally cheap, accessible and rapid. At the same
time, in most instances, the power Ombudsmen is limited and they cannot, in particular, order the release
of information but simply have the power to make recommendations.
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