Review of the Kazakhstan Commission on Access to Information

Chapter 2. The legal nature and composition of CATI

Nature of the CATI

In accordance with Article 19 of the ATIL, the Government of the Republic of Kazakhstan adopted Resolution No. 1175 of 31 December 2015 concerning the regulation of the CATI’s rules of procedure. Article 1, paragraph 1 of that resolution establishes that the CATI must respect and protect the public interests in the domain of access to information and meet the needs of information users. Article 1, paragraph 2, provides that “The Commission is a consultative and advisory body under the Ministry of Information and Communications of the Republic of Kazakhstan”.

The other main regulation applied to the Commission is the Resolution of the Government of the Republic of Kazakhstan on the Approval of the Instruction on the Procedure for Establishment, Operation and Liquidation of Consultative and Advisory Bodies under the Government of the Republic of Kazakhstan (as a rule, this is used by state bodies in the case of the creation of an advisory body at the state level, as an analogy of the law, since the decree is applicable to consultative meetings of the Government bodies).

The CATI as a consultative and advisory body

Article 1, paragraph 2, of Resolution No. 1175 provides that the CATI is an advisory body. Furthermore, point 14 of that resolution states that “The decisions of the Commission shall have the character of recommendations”.

As a result of these provisions, the Commission’s decisions have the following features:

• The Commission is only empowered to give advice and recommendations;

• Its acts are drawn up in the form of a protocol taken during its meeting;

• The decisions are not legally binding for their private or public recipients;

• The decisions are not subject to judicial supervision.

The implementation of access to information oversight bodies’ acts

Most often, access to information oversight bodies in OECD countries make a recommendation or issue an opinion that is not binding on the reporting entity. For example, the decisions of the Japan Disclosure and Privacy Review Board are not binding. Similarly, in Denmark and Norway, the Ombudsman's reports are not mandatory. For its part, the French Commission for Access to Administrative Documents (CADA) issues a favourable or unfavourable opinion on the communication of the document. Even when CADA’s opinion favours an access, the administration can uphold its initial refusal. As a result, in 2011, 7.3% of CADA's opinions were not followed by the organisations to which they were addressed.

In Quebec the Commission for Access to Information reviews the decisions of public bodies following requests from persons who have been refused either access to an administrative document or access to, or correction of, their personal file. After the hearing, a mandatory judgment is provided.

Some administrative bodies in charge of access have real decision-making power. For example, the Italian Commission for Access to Information has such power and may order an administration to disclose a document. In matters of information relevant to the environment, the Brussels Commission for Access to Information has decision-making power.

Sometimes access to information oversight bodies in OECD countries enjoy special powers to enforce the implementation of their decisions. For instance, CADA in France is entitled to impose fines, though only in cases of the fraudulent re-use of public information. These penalties may amount to 300,000 euros. In Sweden, refusal by a public office or an individual citizen to cooperate with the Ombudsman in certain circumstances constitutes an offence under the jurisdiction of a criminal court.

Even without binding force, the recommendations or opinions of OECD access to information oversight bodies are generally respected by the administration or any other addressee of the act. Indeed, these institutions have a strong moral authority and they are able to publicise their actions or the behaviour of the administration or any other addressee.

Recommendations to support implementation of the CATI decisions

Since May 2018, the CATI has been chaired by the Deputy Prime Minister of the Republic of Kazakhstan. This amendment improves the CATI’s status, as on the one hand, the Deputy Prime Minister is a leading political authority, and, on the other hand, his or her decisions are binding on the administration in the areas over which he/she has competence.

However, the appointment of the Deputy Prime Minister as head of CATI reinforces the politicisation of the institution and the sense that it provides a possibility for the administration to assess its own actions.

It is therefore recommended that:

• Decisions by the CATI be well founded, fully justified by law and well-argued, made public and announced to the public;

• CATI decision-making procedures be transparent and consistent;

• Its decisions establish a coherent case law that inspires the administration’s action.

Legislation on membership in the access to information oversight bodies

Terms of appointment

Resolutions of the Kazakhstan government determine that the CATI is chaired by the Deputy Prime Minister and that its vice-president is the Minister of Information and Communications. The other rules for the appointment of the CATI’s members are determined by Resolution of the Government of the Republic of Kazakhstan of 31 December 2015 No. 1175 concerning the approval of the Regulation on the Rules of Procedure of the Commission for Access to Information. Its Article 6 provides: “The commission membership shall be approved by a decree of the Minister of Information and Communications of the Republic of Kazakhstan. […]”

Furthermore Article 10 provides: “The Commission shall include the deputies of the Senate and Mazhilis of the Parliament of the Republic of Kazakhstan, representatives of government authorities and other organisations.

The quantitative and personal composition of the Commission shall be determined at the suggestion of the Commission chairperson upon agreement with the relevant government authorities and other organisations.”

The regulations show three groups of CATI members:

• The Deputy Prime Minister and the Minister of Information and Communications, whose appointments to the CATI are individually foreseen;

• Members of the Senate and Mazhilis, whose number is not determined and who should be appointed by their institutions according to the rules they establish, in accordance with the principles of the separation of executive and legislative powers; nevertheless, the legislation could have provided for some appointment rules, for example, to guarantee the representation of the majority and the opposition;

• Other CATI members, the definition of whose quality and qualifications are left to the discretion of the appointing authority.

  For the latter group, Articles 6 and 10 of Resolution of 31 December 2015 No. 1175 gives full power of appointment to the Minister of Information and Communications.

  The Minister of Information and Communications has the power of appointment, while the CATI is chaired by the Deputy Prime Minister, who is the hierarchical authority for that minister.

Appointment procedures

As noted above, there are several types of access to information oversight bodies in OECD countries. The analysis shows that their appointment procedures vary greatly. However, all these legislations attach the greatest importance to the conditions of appointment, which constitute one of the most important means of ensuring the independence and competence of the authority, and more generally of promoting open governance. For the Commissions, the most common practice in OECD countries is to determine precisely the number of members of the Commission and their conditions of appointment, to limit the discretionary power of the executive branch, and to provide good representation of the citizens.

Furthermore, the access to information oversight bodies’ rules of appointment or election of members differ from one institution to another and are largely related to the federal or unitary organisation of the countries, the parliamentary or presidential nature of the regimes, and their institutional traditions. For instance, the four directors of the Chilean Transparency Council are appointed by the President of the Republic, after approval by two thirds of the members of the Senate. In Germany, the Federal Data Protection and Information Commissioner is appointed by the Federal Government. The Scottish Public Services Ombudsman is appointed by the Scottish Parliament. The Council of Ministers (Governor in Council) appoints the Canadian Information Commissioner after consultation with the leader of each of the recognised parties in the Senate and House of Commons and the approval by a simple majority resolution of both assemblies.

The Italian Commission for access to administrative documents is chaired by the Under-Secretary of State in the Presidency of the Council of Ministers. It is also composed of 2 senators and 2 deputies, appointed by the presidents of their respective chambers; 4 judges and lawyers appointed by their respective autonomous bodies; 1 professor teaching Public Affairs and Law, appointed by the Ministry of Education, Universities and Research; and the head of the Presidency of the Council of Ministers, which supports the Commission’s operations.

The 11 members of the CADA in France are appointed by a decree of the Prime Minister who merely ratifies appointments made by other authorities or ex officio appointments. For example, the President of the data protection authority (Commission Nationale de l’Informatique et des Libertés, or CNIL) is an ex officio member of the French CADA, and the President of the National Assembly and the President of the Senate respectively appoint a deputy and a senator.

Sometimes the appointment process starts with public calls for applications, like the Scottish Public Services Ombudsman, who is nominated by the Scottish Parliament and appointed by the Queen. In many OECD countries, it is stated that the selection process should appear transparent, open and participatory, leading to the appointment of a person outside political control, supported by civil society and able to gain public trust. Often the selection process involves public hearings, with the establishment of a short list of proposed candidates.

Admittedly, commission composition may be poorly regulated by national legislation, such as the Japanese Disclosure and Privacy Review Commission, composed of 15 experts, chosen and appointed by the Prime Minister from among “persons of superior judgment”, which cannot be considered a clear set of criteria.

In summary,

• It is recommended to determine the appointment procedure to the Commission in Kazakhstan’s legislation more clearly.

Composition of the Commission

CATI membership

The CATI composition was approved by the order of the Minister of Information and Communications No. 180 of September 29, 2016 (orders no. 234 of February 23, 2018, no. 214 of May 23, 2018, and no. 300 of June 29, 2018 amended the CATI composition) (Table 2.1).

Table 2.1. List of CATI members, with their positions and institutions of origin

Member	Origin
Deputy Prime Minister of the Republic of Kazakhstan, Chairman (as agreed)	Members of the Government
Minister of Information and Communications of the Republic of Kazakhstan, Deputy Chairman
Vice-Minister of Information and Communications of the Republic of Kazakhstan
Vice Minister of National Economy of the Republic of Kazakhstan
Vice Minister of Justice of the Republic of Kazakhstan
Vice-Minister of the Ministry of Finance of the Republic of Kazakhstan
Director of the Department of State Policy in the Field of Mass Media of the Ministry of Information and Communications of the Republic of Kazakhstan, Secretary	Officials of public administration
Head of the Agency of the Republic of Kazakhstan for Civil Service and Anti-Corruption Affairs
Chairman of the Information Security Committee of the Ministry of Defence and Aerospace Industry of the Republic of Kazakhstan
Deputy Chairman of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan
Deputy of the Senate of the Parliament of the Republic of Kazakhstan	Members of parliament
3 Deputies of the Majilis of the Parliament of the Republic of Kazakhstan (by vote)
Secretary of the party "Nur Otan" (by vote)	Political party
Member of the Board, Deputy Chairman of the Board of the National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" (by vote)	Non-profit non-governmental organisation, union of business entities
Director of the Public Foundation "Center for Economic Analysis" RAKURS (by vote)	Non-governmental organisation
President of the Kazakhstan Association for Internet Development and Resources (by vote)	Private sector association
President of the Public Association "Club of Editors-in-Chief" (by vote)	Non-governmental organisation
Chairman of the Council of the National Movement "Kazakhstan-2050", a member of the National Commission for the Implementation of the Program for Modernisation of Public Consciousness under the President of the Republic of Kazakhstan (by vote)	Civil society
Director of the Institute for Humanitarian Studies and Projects (by vote)	Private research organisation
Deputy Chairman of the Board of the Joint-Stock Company "National Information Technologies" (by vote)	Quasi-governmental organisation
Head of the Program for the Improvement of the Legal Environment in Central Asia of the International Center for Not-for-Profit Law (ICNL)" (by vote)	International research organisation
Lawyer of Internews Kazakhstan (by vote)	International non-profit organisation for the support of independent media

It seems possible to group CATI members into the following categories:

• 6 high-level politicians;

• 4 public officials;

• 5 members of the Parliament and of political parties;

• 2 private organisations;

• 7 non-government and quasi-government organisations, including research organisations;

The CATI decided on the inclusion of representatives of the state bodies and on the scope of their activities; for example, for the Prosecutor General's Office, the issues of legality, for the Ministry of Defence and Aerospace Industry, information security issues, for the Ministry of Finance, the issues of openness in spending budget funds, and for the Ministry of Justice, the regulatory framework.

Composition of oversight bodies for access to information in OECD member countries

The composition of oversight bodies for access to information is quite varied from one country to another, since it may include civil servants, politicians, qualified figures, academics, judges, representatives of civil society, and legal or data protection professionals. For example, France’s CADA includes 3 judges (1 from the Council of State, 1 from the Court of Cassation, and 1 from the Court of Auditors), a deputy and a senator, a local elected official, a university professor, the Chairman of the National Data Protection Commission and 4 qualified persons in various fields of expertise.

In practice, the UK Information Commissioner has a previous career as consumer rights lawyer, while his two assistants have worked for trade unions and local government. A Hungarian Information Commissioner has professional experience as lawyer and a professor of political science, and he has worked to promote the right to information. The Irish and Slovenian Information Commissioners were journalists who had worked on political and media freedom issues. Mexico has included among its Information Commissioners academics, lawyers, and individuals who have been working in public administration.

The composition of OECD oversight bodies for access to information tends to be representative of the citizenry of the country. In the case of the Belgian CARDA, for example, apart from its president, it has as many French-speaking as Flemish-speaking members with voting rights. In addition, the presidency is held alternately by a French-speaking and a Flemish-speaking person.

The clear majority of the CATI’s members come from government and administration, which is consistent with its administrative and consultative nature. This composition differs from that of OECD access to information oversight bodies which, even when they have purely advisory functions and are competent only for administration, have a more representative composition of society and often include professors and judges.

In summary, it is recommended:

• To determine in the legislation precisely the number and categories of persons who may be members of the CATI;

• To ensure better balanced composition of the CATI by appointing members of parliament from the majority and the opposition and more members of civil society, the academic sector and judges;

• To establish a public and open procedure for the nomination, examination and appointment of members of the CATI;

• To limit the number of members of the commission to fifteen to preserve its effectiveness.

Collegiality and autonomy

CATI collegiality and autonomy

Collegial entity

Resolution of the Government of the Republic of Kazakhstan of 31 December 2015 No. 1175 provides that: […] “3. The activity of the Commission shall be carried out on the basis of openness and transparency in discussing and solving issues within its competence.” […] “7. The Commission is chaired by the chairperson or his/her deputy. A meeting of the Commission shall be considered valid in the presence of at least two thirds of its members.” […] “8. The members of the Commission shall be entitled to: 1) submit proposals for the agenda of the Commission meeting; 2) speak at the meeting and initiate voting on the proposals submitted; 3) familiarise themselves with the materials of the Commission work and obtain copies thereof.” […] 14. Decisions of the Commission shall be taken through open voting and considered adopted if the majority of the total membership of the Commission have voted for it.”

These provisions create a collegial institution. In this format, decisions are put to a vote. However, the voting rules (such as matters put to a vote, voting deadlines, special majorities, etc.) are not precisely determined by the resolution. In addition, since the majority members of the CATI are ministers or public officials, the government's view could in principle always prevail.

It should be noted that in the case of operating regulations of several OECD countries, for instance France and Italy, these rules are precisely determined to ensure that decisions are taken in a collegial, truly informed and well-considered manner.

Autonomy

Resolution of the Government of the Republic of Kazakhstan of 31 December 2015 n° 1175 provides that: “[…] 9. The Ministry shall be the working body of the Commission. The working body of the Commission in accordance with the procedure established by law shall: 1) provide organisational and technical support to the work of the Commission; 2) prepare proposals on the agenda of the Commission meeting, necessary documents and materials; 3) request necessary information from owners of information relevant to the activity of the Commission; 4) submit proposals for the improvement of the Commission activity to the Government of the Republic of Kazakhstan; 5) involve employees of other government authorities in its work, where necessary.”

Administrative autonomy

It follows from these provisions of Article 9 that the CATI is not part of the Ministry of Information and Communications’ structure. The Ministry is only the working body of the Commission and responsible for providing organisational and technical support to the Commission’s work, the preparation of proposals, necessary documents, and materials on the agenda of the Commission’s meeting. In addition, the CATI has no legal and autonomous personality, as it sits administratively under the Ministry of Information and Communications. These provisions cause some legal uncertainty.

Hierarchical submission to the Ministry of Information and Communications is problematic, since the CATI is chaired by the Deputy Prime Minister, who is the hierarchical superior of the Minister of Information.

The liability regime for CATI acts is unclear. During its activity, this body could commit acts that are harmful to third parties. Such persons may then wish to seek compensation for such damage. The CATI has no legal personality of its own and as such, it cannot be prosecuted before a court. At the same time, according to information received from the Kazakh authorities, the CATI’s acts do not entail the responsibility of the administration, which cannot therefore be prosecuted for these acts. As a result, a victim of damage resulting from the CATI’s actions would not be able to obtain compensation for that damage. In contrast to this situation, in OECD countries the prevailing principle is that a victim of damage should always be able to claim compensation for the damage, if necessary with the assistance of a judge.

For these reasons, it is recommended:

• To clarify the hierarchical line of the CATI;

• To determine the liability regime for its acts.

Decision-making autonomy

Decisions of the CATI are taken by a majority of its members. It is therefore necessary to assess the autonomy of each CATI member when voting.

For example, ministers are bound by government solidarity and discipline. Public officials represent the interests of the State and the body that nominated them, and are thus bound by their hierarchical subordination. Deputies of the Mazhilis of the Parliament of the Republic of Kazakhstan have parliamentary immunity and are independent in making decisions within the framework of the current legislation of the Republic of Kazakhstan. It can be assumed that civil society representatives vote autonomously.

As majority of the CATI members belong to government and administration or the public sector, it is likely that the CATI is not autonomous from government and administration.

The obligations of the CATI members

Neither the law nor the resolution establish special rules for CATI members to avoid conflicts of interest or other forms of undue influence, nor do they demand that any declaration of assets and interests be submitted by CATI members.

It is therefore the ordinary law that applies to CATI members in this matter. At present, the declaration of income and property at the place of residence to the tax authority is a duty of civil servants in accordance with the Law of the Republic of Kazakhstan on Combating Corruption. However, not all Commission members are civil servants, but represent other organisations. It should be noted that a universal declaration of income and property is slated for introduction in the Republic of Kazakhstan on January 1, 2020.

Collegiality and autonomy of oversight bodies of OECD countries

Administrative and decision-making autonomy

Access to information oversight bodies in OECD countries enjoy wide operational and decision-making autonomy. Some bodies are established as a constitutional provision, such as the Swedish (Chapter 12 of the Regeringsform) and Danish (§55 of the Constitution) ombudsman. The National Institute for Transparency, Access to Information and Protection of Personal Data in Mexico is also a constitutional body. Because of this origin, those bodies are not under direct influence of the executive, legislative and judicial powers.

Most OECD countries’ access to information oversight bodies are “quasi autonomous non-governmental organisations”. They are created by the constitution or the law, and directed by an individual or a deliberative council. They have separate legal personality and are not subject to the ministerial hierarchy. They act through proposals, opinions, regulations, individual decisions and sanctions. This describes the operations of French, Italian and Belgian federal access to information administrative commissions, Canadian and German information commissioners. The OGIS of the United States of America, for its part, was established within the National Archives and Registries of the United States Administration, which has been an independent agency of the United States since 1985.

Functional connections

Concerning their activity, some OECD countries’ access to information oversight bodies are functionally linked to a minister or an administrative department. This connection does not deprive them of their autonomy of decision and action.

Institutions reporting to the executive branch

Some access to information oversight bodies in OECD countries are attached to the President of the Republic, the Prime Minister, various ministries or administrative services, such as the national archives. This is often a functional link, i.e. for its management, the oversight body is integrated into the administrative services of a ministry, for example, the ministry of justice. However, it does not mean that it is dependent on the minister and his/her political decision-making process. For instance, the Japan Disclosure and Privacy Review Commission is an independent agency attached to the Ministry of the Interior and Communications. Similarly, the Office of the Australian Information Commissioner (OAIC) is an independent agency within the Australian Attorney General's Office.

Institutions reporting to the parliament

In accordance with the constitutional principle of the separation of powers, parliament exercises oversight over the executive power. In its task of monitoring the executive branch and the administration, some access to information oversight bodies in OECD countries assist parliament. As such, some access to information oversight bodies are attached to Parliament, such as the Commission for Access to Administrative Documents of Portugal, which sits in the Assembly of the Republic.

The obligations of members of bodies of OECD countries

Access to information oversight bodies in the OECD countries are subject to strict obligations to guarantee the proper performance of their professional duties. Provided for by the legislation, these conditions include civil and political rights, at the time of appointment, during, and even after the end of their mandates.

Members must show dignity and honour, both in their professional and personal lives. They are also subject to strict limitations. For instance, except for elected political members, they cannot exercise political mandates and, in several countries, their mandates are not renewable. They often are bound by the strictest respect for discretion and secrecy about information they may have acquired during their duties. In this way, members of the Japanese Information Disclosure and Privacy Review Commission are liable for sanctions if they disclose any information acquired during or after their term. These persons are often subject to oversight of their assets and any conflicts of interest that may affect the regular performance of their duties. They are prohibited from receiving instructions during the processing of cases and requests for opinions or appeals.

Mechanisms guaranteeing the transparency of the oversight bodies are also being put in place, for example by giving the widest publicity of their meetings and hearings. The aim for impartiality is reflected in rules that allow a member of that body to abstain at his/her own request, or even to be disqualified at the request of a party to the proceedings.

In conclusion:

• Unlike access to information collegial institutions in OECD countries, the commission operates in a highly regulated manner;

• The CATI’s decision-making capacity and functional autonomy is weak in Kazakhstan, whereas it is very strong for institutions in OECD countries;

• The definition of the professional obligations of CATI members is very vague, whereas the definition of those of members of institutions in OECD countries are numerous and strict;

• A change in the CATI’s status should lead to a revision of these clauses.

References

Commission for Access to Administrative Documents in France (2011), Commission d'accès aux documents administratifs, Rapport d'activité https://www.ladocumentationfrancaise.fr