Comment on the Law of Procedure to Disclose Information by Bodies of State Power of the Kaliningrad Region
Final provisions (Chapter Seven)
As regards Article 36 (1), it is unclear why the law would not make its provisions binding. It is concerning that the institutions of local self-government are only “recommended” to take the provisions of the law into account.
Further, it is positive that the law be brought into force so speedily, according to Article 36(2) - but, it is not known if, in fact, this has been done.
Finally, it would be interesting to know how successfully the requirement in Article 36 (3) has been implemented.
Recommendations
Change Article 36 (1) to make conforming a requirement
Conduct a study to ascertain the extent of the implementation envisaged by Article 36 (3)
Guarantee of implementation of the law (Chapter Six)
The provision to create/assign "responsible persons" to arrange for the "disclosure of information" is good: creating dedicated Information Officers, providing they are adequately resourced, supported and trained, is vital for the effective implementation of FOI laws.
Sub-section 2 is concerning, in that it is unclear what length of time a "brief" phone call constitutes; the term is too imprecise and should be deleted.
Article 33 (1) is concerning. It imposes a duty on "mass media". That aspect of the sub-section should be deleted. Likewise, sub-section (2) means that the mass media have a duty to carry the annual reports. This is problematic, as it imposes the carrying of specific content and is probably a breach of the media’s right to freedom of expression. Any publicity should be adequately organised and resourced by the public authority.
The provisions for appeal, in Article 34, whilst welcome in principle, fall short of the preferred solution to the appeal issue: the creation of a dedicated Freedom of Information Commissioner. Consideration should be given to setting up such an office, whether unique to Kaliningrad, or as a “branch” of a dedicated, future Federal Information Commissioner.
Recommendations
The reference to a "brief" phone call is too imprecise; the reference to "brief" should be deleted
Article 33(1) should delete the reference to the "mass media"
Sub-section 2 should be deleted
Article 34 should be amended to reflect the establishment of a dedicated Information Commissioner's office
Disclosing Documents and Materials to public as requested (Chapter Five)
The range of means of requesting information is adequate.
However, the terminology "documents and materials" is unnecessarily cumbersome and vague. Further, Article 23 (2) adds to the confusion by referring to "other information". It is suggested that the law refer to "information", as defined in Article 19's Model Law on FOI. Such a change would mirror the title of the law, and e.g., Article 2.
Sub-section 2 raises a concern, by using the terminology "interested" persons. There should be no adjective qualifying the requester.
Article 24 provides that the request shall be drawn up by the "person interested in obtaining the reply". This is concerning. What happens in the case of someone who, e.g., for physical reasons cannot do so by her/himself?
Also, the restriction on the length of the reply is unduly and unnecessarily burdensome. Sub-section 2 contains unacceptable requests for detail, e.g., the requester's "place of work and position". This implies that persons not currently working are precluded from requesting information.
The third sub-sub section of Sub-section 2 is unacceptable as stated. The requirement to formulate the request "unambiguously" is far too restrictive. All public bodies should be under an explicit duty to advise and assist requesters formulate their request more precisely. In addition, such a requirement presupposes that the public body has properly managed and organised its records in such a way that a requester may know what to ask for. Sub-section 5 does recognises to some extent that there needs to be interaction between the requester and the official preparing the answer; however, that person should not have "the right" to clarify the subject-matter of the request, rather the duty to advise and assist the requester.
The provision in Article 24(4)implies that public bodies may be able to unnecessarily restrict what is asked for by designing "standard forms" which inhibit the requester.
Article 25(3) is concerning. It implies that there might not be the need to reformulate requests so that the requester gets the information s/he wishes. It is also capable of being abused by public bodies, who may refuse to answer serial requests which may be necessary, as the details of any given "subject matter" may change/evolve over time.
Article 26(2) is very important, as it deals with the issue of transferring requests. It is suggested that that final text of the Codes of Practice on function(s) of public authorities under the UK Freedom of Information Act and the Freedom of Information (Scotland) Act regarding transfer of requests be consulted. After reflection, the law’s provisions should either be made more specific and precise, or the technique of adopting a “good practice” Code should be considered.
The provision regarding fees is good, insofar as it states that there will be no charges until the information amounts to more than 10 pages.
However, Article 27 is concerning insofar as sub-section 3, allowing the costs of copying to be "approved by the leadership [sic] of the bodies of state power", opens the door to inconsistencies across the state sector. The cost for copying should be standardised, at an acceptably low level, after due and proper consultation.
Further, the demand that the fees shall be paid "in cash" is unduly restrictive. Also, there is no provision providing for an appeal against the total amount of the fee. Finally, does the phrase "prime cost" include a component for the time/labour involved in copying?
The provision regarding time-limits is broadly acceptable. However, does the period of "two weeks" mean two working weeks?
The provision regarding grounds for denying access to information requested is problematic. In principle, any exceptions in a freedom of information law should be specific as to the interest to be protected; be subject to a "serious prejudice/harm" test; and be subject to a public interest override test. Further, this provision fails to implement the principle of the presumption of access to information, the primacy of openness. It makes access to information under this law vulnerable to restrictions on access to information - possibly unjustifiable - as prescribed by other laws/provisions, many of which possibly ought themselves to be repealed/amended.
The requirement in Article 31 that there should be an annual report is good in principle - but the process lacks an adequately external, independent basis.
However, the provision that the requester "shall not be obliged to give reasons for the request" is welcome.
Recommendations
Amend the terminology of Chapter Five, to bring it into line with the terminology in the title etc
Follow the definition of information provided by Article 19
The adjective "interested" in sub-section 2 should be deleted
Article 24(1) should be deleted
Elements of Article 24(2) should be deleted, in particular the requirement to state the requester's "place of work and position"
Article 24(2) sub-sub-section three fails to recognise the duty that there ought to be on the public body to advise/assist the requester and presumes an adequate level of records management
Sub-section(4) should be deleted
Sub-section 5 should be amended to reflect the duty of the official to assist the requester
Delete Article 25 (3)
In the context of Article 26 (2), consult UK/Scottish Codes of Practice on functions of public authorities, regarding the issue of transfer of requests; consider improving the law on its face in this regard or making it a duty to promulgate a Code of good practice
The level of costs for copying should not be left to the discretion of "the leadership of bodies of state power"
The requirement that the fee charged should be paid "in cash" is unduly restrictive
The phrase "prime cost" is ambiguous: is the cost a notional cost per-page of copying or does it also include time/labour involved in the activity of copying?
There should be a provision allowing for an appeal against the fee being sought by the public body
Clarify the meaning of the time-limit period of "two weeks"
The provision regarding grounds for denial of information fails to incorporate any presumption of openness; supremacy in the light of other, unjustifiable laws restricting access; the public interest test; and serious prejudice harm/prejudice test. The grounds are inadequately stated - the grounds are categories, not specific interests - and are over broad and non-specific as to the interests to be protected
The annual report should not be exclusively an internal matter within a “state power”
Access to Sessions of Bodies of State Power (Chapter Four)
In general, this Chapter deals with the openness of sessions. Whilst this is a good principle, it is a matter of debate whether this topic should be incorporated in a law providing for access to information.
It is also important to clarify what a “session” means, otherwise the openness provisions can be circumvented by defining an assembly/meeting as a non-session. Also, other meetings etc should be brought within this Chapter.
Article 16 lays out the general principle, but then states that it can be restricted “in cases envisaged by the laws of the Russian Federation and the Kaliningrad region”. The Article then goes on to say that sessions may be attended by “interested citizens who have filed the application forms…”. It is concerning that the statement of the general principle both contains the caveat and then refers its substance to other laws etc. The principle should be almost absolute and not capable of being diminished by a plethora of other laws (which are unknown to the commentator).
Further, it is concerning that access may be limited to “interested citizens” - do they have to demonstrate an interest in the issue under discussion? Finally, the notion that attendance should be conditional on the filling in of an application form is capable of abuse and overly bureaucratic.
The requirement to publish the schedule of sessions monthly in advance is welcome. However, the listing should not only appear in the mass media. And, as above, this implies a duty on the media to publish such information which may be a breach of the media’s right to freedom of expression. The information should be published by the authority and the data can be published by the media - if it wishes to do so.
As regards the timing of any publicity, it should be clear if “a week” means 7 working days?
A major issue concerns the adequacy of the information relating to a session. Notice of the meeting is important but so also are the agenda; minute of the last meeting (where relevant) and a list of the background documents pertaining to the items on the agenda. These should also be available several clear days before the meeting.
Where the decision is taken to close the session, it is important that not only the reasons be stated but that they be based on narrowly-drawn grounds, which are stated in this law. Further, is it clear who has the authority to take such a decision and according to what procedure?
Finally, where the session is closed, it is vital that a record of what took place during that session be published.
The restrictions under Article 18(1) are overly restrictive, e.g., as to the person’s “place of work and position”.
The arrangements referred to in Article 18 (2) are needlessly detailed and bureaucratic. It is usually unnecessary to do more than apply common-sense to providing an adequacy of seating etc.
There should be a retention policy regarding the background documents etc which have been used for a specific session.
Article 20(3) seems capable of substantial abuse by the chairman and it is seemingly internally inconsistent - the member’s rights may be overridden by the chairman.
Recommendations
Consider the precision of the term “session”
Broaden the scope of this chapter by including meetings etc which may not constitute “sessions”
Delete the second phrase of Article 16 (1)
Do not make restrictions dependent on other laws
Any very specific and limited grounds for refusing openness should be stated in this law, as well as the procedure for invoking any ground
Delete the phrase “interested citizens” and replace by “everyone”; no interest in the matter of the session should have to be demonstrated
Delete the reference to application forms as a precondition for gaining access
Delete Article 17(1)
The time period in Article 17 (2) should state if the week means seven working days
The provision regarding information of the timing of the meeting needs to be supplemented by other topics too - e.g., agenda; minute of last meeting; background documents etc
Closed sessions under Article 17(2) should only be closed because a decision has been taken based on necessary; narrow and concrete grounds specified in this law by an appropriate authority acting in accordance with a lawful procedure
Where the meeting is closed, a published record of the decision of the meeting must be made
Some of the data required by Article 18 is too restrictive; amend accordingly
Delete Article 18(2); it is overly detailed and bureaucratic
There should be a retention period for documents etc which have been used in the coming to decisions during sessions
Reconsider Article 20(3)to eliminate the apparent potential for abuse by the chairman
Direct Access to Documents and Materials of Bodies (Chapter Three)
No comment
Publishing of Official Information (Chapter Two)
Article 6, “Disclosure of Official Information to the Public” is interesting in that it employs the category “the public” (as opposed to citizens etc). It is refreshing to see the notion of “ the public” being employed.
In general, specifying these categories of information is superficially attractive. However, the key point is that, in a contemporary freedom of information regime, the principle is that ALL information held by public bodies ought to be accessible, except on highly specific and narrow grounds expressed in the law - to be invoked only where disclosure would, or would be likely to, seriously prejudice/ harm the protected interest. Even so, disclosure maybe still be justified in the public interest. It ought also to be subject to the principle of timeliness.
In addition, it is unclear whether Articles 6 - 10 mean that the mass media have to publish such “official information”. If so, this may be a breach of the media’s right to freedom of expression.
Article 11(1) is concerning. Accreditation of journalists should not be a matter for bodies of state power. Article 11(2) is concerning as it implies a discrimination against non-mass media.
Recommendations
As a freedom of information law should prescribe that all official information be accessible, subject only to narrow and specific grounds stated in this law etc, is Chapter Two really necessary?
The duties on the mass media to carry official information should be reconsidered in the light of the media’s right to freedom of expression
Delete Article 11(1)
Reconsider Article 11(2), as it is discriminatory in referring only to “mass media”
General Provisions (chapter One)
Article 1’s purposes are laudable in themselves.
However, the scope of the bodies covered is questionable, even with the qualification expressed in Article 2(2). The law ought to apply to all bodies undertaking public functions - whether public or private. Furthermore, the scope of the bodies referred to in Article 2(3) is concerning: this law is about information held by public bodies, not “enterprises etc”.
Further, Article 1 refers to “openness” - which has to do with attendance at meetings and obtaining of documents etc prior to the meeting. Article 2 refers to “disclosing information” - which is the true focus of a freedom of information law, particularly information which the authority has not chosen voluntarily to disclose.
Article 3 seems promising - but it refers to “information on activities of the bodies of state power”, rather than to the information/records held by such bodies.
The exceptions to disclosure are stated in Article 4. Generally, it is concerning that law designates categories of protected information i.e., “information of restricted access”; “confidential information” and ( per Article 4(3)) “”state secret”. Furthermore, Article 4(1) makes the exceptions subject “to the laws of the RF”, rather than to any restriction as stated in this law; and Articles 4(3) and (4) also refer such classification to other laws of the Russian Federation.
Article 4(2), whilst seeming to protect access to certain categories of information, again, it makes such access dependent on “the laws of the Russian Federation.” This is undesirable. All the information specified in Article 4(2) should be accessible, unless it falls within a proper framework of exceptions.
It is good that, according to Article 4(6), denial of access has to be reasoned and that the denied requester has to be informed of the appeal process. It is good that the principle of severability is referred to in Article 4(5).
Article 5 conflates openness and freedom of information. Again, the reference to the “mass media” is undesirable and is probably wrong in principle.
Recommendations
Extend the scope of the bodies covered by the law
Focus the law on information held by public bodies
The system of exceptions needs to be redrawn as, currently, the categories are class-based; they are over broad and non-specific; they are defined by reference to other laws; there is no test of serious prejudice/harm; there is no timeliness test; and there is no public interest override
Distinguish between right(s) to attend meetings and obtains documents therefor and the right to access information held by public bodies
Delete Article 5(1)(first)