Federal Law on Access to Information Concerning Activities of Government Departments and Local Self-Government

^{Federal Law on Access to Information Concerning
Activities of Government Departments and Local Self-Government

Introduction

The subject of this Comment is the Government of the Russian Federation’s
draft Bill (hereafter “the law”) on “Access to Information Concerning Activities
of Government Departments and Local Self-Government”.
Generally speaking, the proposal for such a law is welcome. Increasingly,
enlightened, modern states have, or will shortly have, measures to promote and
protect the right to freedom of information. It is a - some would say the - key
element of a democratic polity.
This comment, however, simply addresses the question: do the provisions of
this law correspond to best international standards?
According to the international non-governmental organisation Article 19
(hereafter “A19”), the following statement sets out the basic international
background to the law.

Article 19 of the Universal Declaration on Human
Rights, binding on all States as a matter of customary international law,
sets out the fundamental right to freedom of expression in the following
terms:

Everyone has the right to freedom of opinion and
expression; this right includes the right to hold opinions without
interference and to seek, receive and impart information and ideas
through any media regardless of frontiers.

International law goes beyond simply requiring States
to refrain from interfering with the free flow of information and ideas.
It also places an obligation on States to take positive steps to ensure
that key rights, including freedom of expression and access to
information, are respected. Pursuant to Article 2 of the ICCPR, States
must “adopt such legislative or other measures as may be necessary to give
effect to the rights recognized by the Covenant.”

Freedom of information, including the right to access
information held by public authorities, is a core element of the
international guarantee of freedom of expression. There is little doubt as
to the importance of freedom of information. The United Nations General
Assembly, at its very first session in 1946, adopted Resolution 59(I),
which stated:

Freedom of information is a fundamental human right
and ... the touchstone of all the freedoms to which the UN is
consecrated.

The right to freedom of information as an aspect of
freedom of expression has been recognised by the UN. The UN Special
Rapporteur on Freedom of Opinion and Expression has provided extensive
commentary on this right in his annual reports to the UN Commission on
Human Rights. In 1997, he stated: “The Special Rapporteur, therefore,
underscores once again that the tendency of many Governments to withhold
information from the people at large … is to be strongly checked.” His
commentary on this subject was welcomed by the UN Commission on Human
Rights, which called on the Special Rapporteur to “develop further his
commentary on the right to seek and receive information and to expand on
his observations and recommendations arising from communications.” In his
1998 Annual Report, the Special Rapporteur declared that freedom of
information includes the right to access information held by the State:

[T]he right to seek, receive and impart information
imposes a positive obligation on States to ensure access to
information, particularly with regard to information held by
Government in all types of storage and retrieval systems….”

Once again, his views were welcomed by the Commission
on Human Rights.

The European Court of Human Rights has stopped short of
interpreting Article 10 of the ECHR as including a right to access
information held by public authorities, but it has required public
authorities to release information based on the right to family life.

General points concerning the law

Drafting
As an overall general drafting point, it would be helpful if the various
sub-sections of the Articles could be numbered, for ease of (cross) reference.

In addition, the Articles seem (at least in translation) to be cumbersome,
complex and verbose

Structure
Reservations exist about the structure of the law. For example, Chapter Two,
Article 10 is the kernel of any FOI law. It should be in a revised Chapter One,
Article 1.
It is suggested that the structure of A19’s Model FOI law be adopted:

· Definitions and Purpose

· The Right of Access to Information held by Public Bodies

· Measures to Promote Openness

· Exceptions

· The Information Commissioner

· Enforcement by the Commissioner

· Criminal and Civil Responsibility

· Miscellaneous Provisions

Yardstick(s)
As a minimum, the law should be checked against the Council of Europe’s 2002
Recommendation on Access to Official Documents. More critically, it
should correspond, as a minimum, to Article 19’s Principles on the Right to
Know and Model FOI Law.

Major Issues of Concern
By such yardsticks, the Commentator’s key concerns regarding the law are:

· The range of bodies covered is too narrow; it should encompass all
public bodies (including the Presidency; federal executive agencies etc )
i.e., all bodies (whether public or private) fulfilling public functions

· Conceptually, the law is inadequate; it does not focus on the
right of access to information held by authorities; it seems concerned with
governmental bodies’ activities

· The law does not provide for any public interest test override

· The law fails to provide that exceptions to disclosure should only
be permissible where there is a likelihood of serious harm/prejudice to the
protected interest

· The law fails to create a presumption that there is a right to
maximal disclosure of information held by authorities

· The recourse to courts to review denials of disclosure should be
reconsidered

· The opportunity to create a new office, the Information
Commissioner, should be taken and written into the law. The IC should have
duties to foster good practice; education; review bodies’ publication schemes;
review denials of disclosure; and enforce the law

· Absent an Information Commissioner, the Human Rights Commissioner
should be obligated to monitor the implementation of the law and produce
annual (or more frequent) reports to the Parliament on its operation

· More specific provisions to facilitate advice and assistance (both
generally and for specific groups) and records management are required - even
if only by an enabling provision to create Codes of Practice

· There is inadequate attention to training requirements for public
body officials

· Public education is crucial to a good FOI regime; the law should
provide for the creation of a Guide to the law in clear, user-friendly
language(s)

Specific Issues of Concern
Chapter One

[Purpose; principles; entitlement; coverage; definition of information;
primacy]

Purpose
The preamble states that the law focuses on “providing the access of citizens
and organizations to information concerning activities of government departments
and local self-government” and “serves the purposes of ensuring the transparency
of the government…and of exercising public control over activities of government
departments…”
These are worthwhile and important purposes. It is, however, arguable that
the Bill does not expressly and clearly state the main purpose of a freedom of
information law, i.e., access to information held by public authorities.
As A19 states,

It is important that freedom of information (FOI) laws
focus on ensuring access to information held by public authorities, in part
so that they do not lose focus. An FOI law should clearly state this at the
outset, setting a basic standard of disclosure based on the principle of
maximum disclosure. This principle establishes a presumption that all
information held by public authorities should be available to the public.
Information belongs to the people and the State merely holds it on their
behalf.

For example, see the Purpose section of the Model FOI Law:

2. The purposes of this Act are: -

a. to provide a right of access to information held by public
bodies in accordance with the principles that such information should
be available to the public, that necessary exceptions to the right of
access should be limited and specific, and that decisions on the
disclosure of such information should be reviewed independently of
government; and
b. to provide a right of access to information held by private
bodies where this is necessary for the exercise or protection of any
right, subject only to limited and specific exceptions.

Recommendations

The law should delete references to access to information regarding
activities of governmental etc bodies
The law should explicitly and clearly prescribe an individual right of
access to information held by public authorities

Principles
Article 3 sets out “Basic Principles” underlying the right to access
information concerning activities of government departments and local self
government. These include that such information be “open and accessible”; “true
and whole”; and “must be disclosed for the purposes of ensuring security and
protection of citizens, society and the state”. Apart from the issue already
mentioned, that the Bill should not be focused on information “concerning
activities”, it is positive to see the principle of “openness” referred to.
However, this principle should be strengthened to comprise the standard of
“maximum disclosure”. Also, it is worrying to note that the principles are
potentially circumscribed by the very limited and limiting aims of “security and
protection”. It is also suggested that “principles” 4,6 and 7 are unnecessary.
A more-narrowly drawn section on “principles” should be re-sited to the
preamble.

Recommendations

Coverage
The coverage of the Draft Bill is stated to be “government departments and
local self-government”. This is inadequate. As the Council of Europe’s
Recommendation states, Member States should examine, in the light of their
domestic law and practice, to what extent the principles of this recommendation
could be applied to information held by legislative bodies and judicial
authorities

A seeming inconsistency exists in that the general coverage of the Draft Bill
(government departments and local self-government) is, in Article 8(3), extended
to “legislature-related information”. Additionally, Article 8(4) contemplates
active information disclosure by the President of the Russian Federation. Both
these bodies should be within the general framework of the Bill. Subsequent
sub-sections of Article 8 refer to other bodies too: “state agencies”; “federal
executive authorities” etc.
This plethora of differently designated bodies is confusing, has no place in
a freedom of information law and potentially allows parallel systems of
information disclosure regulation. All public bodies should be covered as a
single category and by a uniform system of information disclosure.
Even the extension of the law to all “public” public bodies would be
inadequate in today’s liberalised economies and in the light of the growth of
private bodies carrying out public functions. These, too, need to be brought
within the ambit of a contemporary FOI Act.
Article 19’s Model FOI Law suggest the following:

Public and Private Bodies

6. (1) For purposes of this Act, a public body includes any body: -

a. established by or under the Constitution;
b. established by statute;
c. which forms part of any level or branch of Government;
d. owned, controlled or substantially financed by funds provided by
Government or the State; or
e. carrying out a statutory or public function,

provided that the bodies indicated in sub-section (1)(e) are public
bodies only to the extent of their statutory or public functions.
(2) The Minister may by order designate as a public body any body that
carries out a public function.

As A19 states, in another context,

Public bodies should be defined broadly to include bodies
established by or under the Constitution, those that form part of any level
or branch of government, those that carry out public functions or that are
owned, controlled or substantially financed by the government. All these
bodies carry out public functions and/or are financed through taxpayers’
money.

Finally, consideration should be given to listing the bodies which are
covered by the legislation. This has the merit of facilitating transparency
regarding the state apparatus and also clearing up any confusion as to whether a
specific body is liable to disclosure obligations. It does, however, also
require a designation procedure for adding and deleting bodies as circumstances
dictate.

Recommendations

§ All public bodies should be regulated by one, uniform system of
information disclosure

§ Extend coverage to legislature

§ Extend coverage to judicial bodies

§ Extend coverage to the Presidency; state agencies; federal
executive authorities

§ Extend coverage to private bodies providing public functions

§ Consider listing the affected bodies by name

Entitlement
The Bill states that access to the information referred to will be for
“citizens and organizations”. There is also a confusing reference in Article 5
to “information users (consumers)…”
The reference to “organizations” is problematic as FOI laws concern the right
of members of the public to know what information is being held on their behalf
by public bodies. In addition, the category of “citizen” is overly narrow, and
excludes, at the very least, residents. Access should be the right of
“everyone”.

Recommendations

Entitlement to gain access to information should be accorded to everyone
References to “information users (consumers) should be deleted
References to “organisations” should be deleted

Information
Information is defined as “any data or records relating to facts, events,
processes and developments…and also any data or records concerning senior
officials or other officers of government except where such data and records are
treated as limited-access information”.
This definition is cumbersome (“facts, events etc “?) and unclear, e.g., what
is the distinction between “data” and “information”?
“Information” should be simply be defined as “all records held by public
authorities”. The A19 formula should be adopted, whereby information is
equivalent to records; and “…a record includes any recorded information,
regardless of its form, source, date of creation, or official status, whether or
not it was created by the body that holds it and whether or not it is
classified.”

Recommendations

The “distinction” between data and records is unclear and should be dropped
The definition of information as “records” should be adopted

Primacy
A standing problem for FOI regimes, is the issue of the primacy of the
general FOI law. This law makes reference in Article 2 to other legislation etc
affecting rights to information. There should be a statement that the general
Federal law takes priority over all other laws etc affecting information
disclosure.
As A19 states

deference to other laws and, indeed, administrative
classification procedures, is problematic since many of these laws and
procedures do not meet the above-mentioned three-part test. They were not
drafted or put in place with the goal of promoting openness and many are
out-dated and/or overly secretive. Therefore, by referring to ‘other laws’,
the draft FOI law does not promote open government, but effectively
perpetuates secretive practices. Instead, an FOI law should clearly state
that other legislation should be interpreted in a manner consistent with its
provisions. Ultimately, laws that are inconsistent with an FOI law should be
repealed or amended. In particular, State secrets laws should not be used to
limit the level of openness provided by an FOI law.

Recommendation

The general law affirming the right to maximum disclosure of information
held by public authorities should state that it takes priority over all other
laws

Exceptions (Article 4)
This topic - which restricts the right to access information - is the heart
of any FOI law.
The general international standard is that stated in the Council of Europe’s
Recommendation on Access to Official Documents.
It should be noted that the CofE formula is permissive not mandatory, “Member
states may limit the right of access to official documents.”. Crucially,
“Limitations should be set down precisely in law” and be “necessary in a
democratic society”. Any limitation must be “proportionate” in relation to the
aim/interest to be protected.
In any case, there should only be refusal to disclose “if the disclosure of
the information contained in the official document would or would be likely to
harm any of the [above] interests mentioned…” unless there is an “overriding
public interest in disclosure. Further, there should be “time limits beyond
which the limitations mentioned [sic]…no longer apply.”
So, as regards exceptions, (a) each should be subject to the three-part test
(narrowly and precisely drawn; prescribed by law; and necessary in a democratic
society); (b) each exception should be subject to the “public interest” override
(i.e., even if it is legal to restrict disclosure, the decision must be looked
at in the light of the overriding public interest); and (c) each exceptions
should only operate to prevent serious harm/prejudice the interest in question.
In summary any restrictions must threaten serious harm to a legitimate aim
provided for by the law
threaten serious harm to the legitimate interest the public
interest served by having the information disclosed may outweigh the harm
caused by disclosure.

Article 4 states that access to “data and records” shall be “limited if such
date [sic] and records are treated as classified information or confidential
information under the Russian Federation legislation.” It then goes on to state
that “categories of data and records concerning activities of government
departments and local self-government that are treated as confidential
information and the rules of procedure under which such data and records are so
treated shall be established under the Russian Federation legislation.”
This section is concerning.

It does not provide for the public interest override test. It does not state
that the limitation should be restricted to preventing serious harm/prejudice to
the interest in question. It does not have any phraseology limiting the
restriction on disclosure by timeliness. The categories mentioned (“classified
information” and “confidential” information” ) are far too broadly stated and
non-specific and also can only be rendered meaningful by reference to other
laws.

Recommendations

§ Any exceptions should be narrowly-drawn; clearly stated; and be
subject to the three-part test

§ There must be the inclusion of the public-interest override test

§ There must be the inclusion of the serious harm/prejudice test

§ Any list of grounds for refusal should be detailed; exhaustive;
and correlate to a legitimate aim

§ References to other laws should be deleted, or, at the very least,
made very specific

Active freedom of information (Articles 5, 6)
Articles 5 and 6 correspond to the section in Article 19’s Model Law on FOI
entitled MEASURES TO PROMOTE OPENNESS. It would be helpful if the law would
follow that section’s provisions.
Article 5 deals with certain duties of government departments and local
self-government, under the heading “Competence…in Ensuring Transparency of
Information…”. Bodies shall be required to publish lists of limited-access
information; settle disputes over whether it is lawful/warranted to treat
data/records as limited-access data in ways “specified under Russian Federation
legislation”; “exercise control over observance of the right of access”; and to
“consider, as specified under the Russian Federation legislation, any other
matters related to ensuring the transparency of information….”
There are specific concerns regarding this Article. Publishing “lists” of
“limited-access information” fails to do justice to the notion that information
disclosure may or may not be restricted in the light of the seriousness of harm
adjudged to be caused to the interest and in the light of the public interest.
The notion that the government departments etc “shall be required to settle
disputes” is only half the story…as will be dealt with later, the law must
provide for the establishment of a robust, independent, and external review
system to “settle” disputes.
Article 6 states that departments “may make publicly available…information…in
such circumstances as specified by Russian Federation legislation” and by
“ordinances and regulations enacted by local self-government”. It is concerning
that the provision are couched in the permissive “may”, and that there are so
many references to other legislation etc which may compromise, weaken and or
limit what information is accessible to requesters. Finally, the sub-sections
referring to “access to meetings” are problematic. As a general rule of thumb,
it is desirable to focus FOI laws on requests for access to information held by
public bodies; provisions regarding “open meetings” - whilst welcome in
principle - should find a separate home in a specific and detailed law.

Recommendations

§ References to other laws should be deleted, or, at the very least,
made very specific

§ The elements to be made available should follow Section Three of
the A19 Model Law on FOI

§ The provisions regarding access to meetings should be removed and
form the bedrock of a separate, detailed piece of legislation

Forms of Disclosure (Article 7)
(It is useful that this Article has numerical sub-sections!)
In general, the Article on “Forms of Disclosure” concerns “activities or
operations” of government departments or local self-government. This topic
really concerns the transparency regarding a public body, rather than
access to information it holds. However, it is good that there is a specific
Article concerning the - forms of - publication of a body’s own activities etc.
It is concerning, though, that the language of the Article (as translated) is
permissive rather than mandatory.
In relation to the disclosure of any information, it is a principle of
freedom of information that the law should contain provision(s) “to ensure full
access to information for certain groups, for example those who cannot read or
write, those who do not speak the language of the record, or those who suffer
from disabilities such as blindness.” Reference to one category of disabled
person - blind -is made in Articles 11 and 16(1). However, blindness does not
exhaust the categories of disablement.
Article 7 (3) provides that where information is “requested verbally”, it
“may be disclosed verbally”. It is unclear why this “symmetry” is necessary;
also, it is unclear what limitation regarding the provision of information is
created by the requirement that the information may be disclosed “through the
telephone of the information service of the national government agency….”.Also,
Article 7(3) conflates form(s) of disclosure and what may be
disclosed.
Article 7(4) is unclear (in translation).
References to “as prescribed in other federal laws”, again, is concerning:
what laws? with what impact on the accessibility of the information?

Recommendations

§ References to other laws should be deleted, or, at the very least,
made very specific

§ The language of the Article should be mandatory, not permissive

§ Subject to Article 11, the Article should specifically provide
that the provision of the information will respect the needs of specific
groups

§ Thought should be given to deleting Article 7(3)

§ Retranslate Article 7(4)

Information to be published (Articles 8 and 9)
Article 8 (2) makes reference to “Time limits”. That this topic is mentioned
is welcome. However, it must be the subject of a specific and clearly
articulated section. It is not appropriate to include it in this Article.
To say that requesters must be able to “timely exercise of their rights,
liberties and legitimate interests” is merely a truism and is redundant.
Sub-sections 3,4,5, and 6 are concerning, in that they not only introduce new
bodies covered by the Bill, but they also permit those bodies to regulate their
own information disclosure. The law should cover all public bodies to be
regulated by one uniform system of information disclosure.
Article 9 contains a very lengthy list of “Information…Mandatory for
Disclosure in General-use Information Systems”. However, the final sub-section
of Article 9, and Article 8 (7) both make it clear that the list is
illustrative. It might be useful, therefore, to consider the items in the
context of types/categories of information that should be specified. In that
regard, it might be useful to consult the loist of prescribed categories
according to Article 19s Model Law on FOI.

Recommendations

§ The issue of time-limits must be dealt with clearly and
comprehensively in a separate section

§ Sub-sections referring to other bodies (apart from government
departments and local self-government) should be deleted, as a consequence of
including such bodies in the general coverage of the law

§ Consider revising the items contained in the Article 9 list in
terms of categories/types of information that should be provided

Chapter Two

[The individual rights/obligations of requesters; rights/obligations of
providers; organisation of access to information; Organisation of Information
stored in automatic general-use systems; Request for Information re activities
of government departments; procedure for consideration of requests; procedure
for presentation of information; time-limits; grounds for denying disclosure;
free-of-charge information provision; fee-based provision of information and
procedure for payment]

Individual rights/duties of requesters (Article 10)
Article 10 sets out the kernel of any FOI law - the individual’s right to
access information. It is positive that this provision exists, although a
reservation has already been expressed about its location within the overall
structure of the law. It should be re-positioned in a new Chapter One. It is
also good that there is a clear statement that no reasons for obtaining the
information need be provided. Also, it is concerning, again, that the right is
access information about “the activities” of the covered bodies, rather than to
information which they hold. The sub-section regarding “forgoing obtaining
information” is odd. The sub-section regarding “correct personal data” is
concerning, in that it is imprecise. The only data that need be required is
simply that which is adequate to receive a response to the request for the
information. The sub-section regarding “refusal to make a request” should be
deleted. The sub-section making reference to “routine rules” of procedure for
access to information should be deleted, as it appears to legitimise what may be
highly restrictive rules. The sub-section on fees needs careful scrutiny, as
this issue requires a comprehensive, separate Article which will not allow
excessive fees to sneak in by the back door and render the right to access
information meaningless.

Recommendations

§ Reposition Article 10 into a new Chapter One

§ The right to access information should be to information held by
bodies; if this is intended it should be clearly stated

§ The sub-section regarding “forgoing obtaining information” should
be deleted

§ Specify that the “personal data” required is limited to that
necessary to obtain a response

§ Delete the sub-sections regarding “refusal of request” and
“routine rules”

§ The sub-section on fees should either be removed, and a separate
Article created, or, at the very least made more detailed

Rights and Obligations of Public Bodies in Providing Access (Article 11)
Article 11 states that “departments and their officers” shall have the right
to “verify the content of any request”. This is redundant, as is the sub-section
regarding refusal - the grounds for refusal to disclose have already been dealt
with. The sub-section regarding “delegation on contest basis” is concerning (and
will be dealt with more fully under Article 12).
It is, indeed, questionable whether Article 11(2) adds anything to what is
contained elsewhere and consideration should be given to deleting it.

Recommendations

Delete Article 11 (1)
Consider deleting Article 11 (2)

Organisation of Access to Information (Article 12)
It is good that there is a provision specifically dealing with the
establishment of specific “divisions” and/or “authorized officers” who have the
obligation to organise access to information. However, it might be better to
focus on the creation of “information offciers” only. Also, it is concerning
that the duties shall be specified “in the statute of the government department
or local authority concerned” as this may afford conditions for limiting the
right of access.
The provisions regarding delegating such duties “on a contest basis” is
concerning and should be thoroughly scrutinised before adoption. It is unclear
what merit/advantage there might be in such a scheme.

Recommendations

Article 12 should be focused on the creation/establishment of information
officers
The specification of officers’ duties should not be in other instruments
Delegating the duties of information officers on a contest basis should be
discouraged

Organisation of Information stored in Automatic General-use Information
Systems (Article 13)
No comment

Request for Information concerning Activities of Government Departments
(Article 14)
As noted earlier, the notion that any request be for information concerning
the “activities” of a department is problematic. FOI laws should focus on the
information held by such bodies. This Article should be redrafted in the light
of changing the orientation of the whole law. As noted before, the restriction
to requests being from “citizens” is unacceptable and it should not extend to
“organisations”.
The Article appears to confuse the requirement to provide a name in order to
facilitate receipt of the information and the provision of a name for
identification purposes. Names should only be required in order top facilitate
receipt of information.
The sub-section dealing with the language of the request is unreasonably
restrictive. Consideration should be given to adding a clause stating that
“where reasonable” another language may be used.
The commentator lacks sufficient knowledge regarding the “proxy” system under
Russian Federation civil legislation to be able to comment thereon.

Recommendations

FOI laws are about access to information held by bodies not to their
activities; consider in general recasting this throughout the whole law, and
in Article 14 in particular
The terminology should embrace the notion that “everyone” may request
access to information and that it should not extend to organisations
The sub-section diminishing the rights in the case of an unnamed requester
should be deleted
The sub-section restricting the language of the request to the official
language of the Russian Federation is too restrictive; the sub-section should
be redrafted to import a reasonableness test for using other language(s)

Procedure for Consideration of Requests (Article 15)
Article 15 addresses the issue of considering requests. It is interesting to
note that, thus far, and in this Article too, there is scant reference to
time-limits. It is, however, the case that this topic is considered in Article
17. Usefully, the Article also addresses the issue of “transfer of requests”,
establishing a seven day time limit for notifying the requester of any transfer.

However, it would be helpful if the time-limit would make it clear if the 7
days means 7 “working days”. Also, it is unclear why there may only be one
transfer of the request.

Recommendations

The 7-day time-limit for notifying the requester should state whether this
means 7 working days
There is no justification for limiting the duty to transfer the request to
once only; this aspect should be reconsidered

Procedure of Presentation of Information (Article 16)
It is good that the principle of severability is endorsed in sub-section 5.
However, sub-section two contains the unusual provision concerning the
creation of information “at a request for fees”. It is unclear what the
motivation is for its inclusion in this law. Corresponding to the point made
above, the restriction in sub-section 3 concerning language should be revisited.
In sub-section 5, the references to “classified information” and
“confidential information” are problematic. For reasons which have already been
expressed, FOI laws should not treat information categorically - not least
because disclosing the information might be in the public interest or the
likelihood of serious harm may have passed.
Sub-section 6 is concerning, as it does not state what the purpose of
“registration” might be.

Recommendations

Consider redrafting the section concerning the language restriction; it
might not be unreasonable to provide information in a range of languages
Delete the sub-section regarding creating information “at a request for
fees”
Delete the sub-sections on “classified information” and “confidential
information”
Delete the sub-section concerning registration

Time-limits (Article 17)
Later on in the law than is reasonable, the topic of time-limits is
addressed. The Article prescribes that a reply to a request for disclosure of
information must be sent “not later than 30 days” after receipt of the request,
“unless the federal laws have prescribe otherwise”.
Several points arise here; (a) the time limit should be expressed in terms of
receipt of the information, not in terms of its being sent; (b) is 30 days 30
“working days”? (c) in any case, 30 days is an unreasonably long time; and (d)
the reference to other unnamed federal laws is concerning, as it is non-specific
and they may operate against the interests of the requester.
Whilst the provision regarding notice in the case of the need for extra time
is reasonable, the Article on time-limits should deal with the time-limits for
appealing against a refusal of disclosure (and this entitlement should be stated
in any refusal) and the period which a body may take to consider the appeal.

Recommendations

The time-limits should refer to receipt of the information
Specify whether the 30 days are 30 “working” days
Reduce the 30 day period to at least 20 working days
Provide that in cases of emergency, the time-limit is to be drastically
reduced
Delete reference to other federal laws
The period for appealing should be stated (and it should be obligatory to
state that in any refusal)
The period for considering an appeal should be stated

Grounds for Denying disclosure (article 18)
Whilst many of these grounds seem reasonable, it should be noted that some of
the provisions which constitute grounds for denying information might be
obviated (a) if there is a good, supportive culture of advice and assistance and
(b) the public body has organised its information/records in a reasonable
manner. The onus is on the public body to facilitate maximum disclosure and not
to enter into a cat-and-mouse game with the requester.

Recommendations

· There should be an explicit duty provided for in the law to advise
and assist requesters

· Such a duty should be supplemented by an obligation to promulgate
a Code of Practice on how public bodies should fulfil their disclosure duties

· Such a duty should be supplemented by an obligation to promulgate
a Code of Practice on the creation, management, preservation and destruction
of records

Free of Charge Provision of Information (Article 19)
This Article, whilst valuable, is stated in overly permissive language.
Furthermore, it is marred by - yet again - overuse of references to other
Federation legislation and, worse still, ordinances/regulations

Recommendations

· The language should be mandatory not permissive

· Delete references to other legislation etc

Fee-charged provision of Information (Article 20)
In general, it should be borne in mind that costs must not deter potential
requesters and that access costs rarely support a freedom of information regime.
It is crucial that there be no application fee; there should be fee-waivers
where the information is disclosed in the public interest and where the
information requested is personal; costs should be discounted for certain
classes of requester and enhanced for other classes of requester. Full -cost
recovery should be avoided. There should be no cut-off ceiling. Costs should not
kick-in till after a certain minimum expenditure. Charging for “searching” is
not good, as extended periods for searches may simply be the consequence of
chaotic records management.
Whilst sub-section 4, providing for challenging the size of fees is welcome,
the reference to “by any other way” is too vague.

Recommendations

· As a general rule of thumb, costs should not be calculated until a
certain expenditure has been incurred

· References to charges for searches should be deleted

· The cost should be calculated at a marginal rate

· All costs shall be subjected to review before being levied

· Listing fee-charged services per Governmental decree should not be
limited to federal executive agencies

· In sub-section 4, delete the reference to “any other way”

· There should be a sub-section providing that, where the cost of
collection outweighs the fee collected, no fee should be charged

Procedure of fee payment (Article 21)
No comment

Chapter Three

[Protection of the Right of Access to Information; Control and supervision
over Observation of the Right of Access to Information

Protection of Right to Access Information (Article 22)
Article 22 deals with review processes available to a requester who claims
that her/his rights have been infringed by a public body’s action or inaction.
The Article is welcome insofar as it deals with this issue. However, it
conflates internal review and external review.
A good FOI law will provide for an internal review to which a disappointed
requester may have recourse. This issue should be dealt with in the relevant
part of the law dealing with the way in which bodies deal with requests. As
already noted, in the context of time-limits, any denial of a request should be
accompanied by a statement of the requesters review rights, including within
what time-period s/he has to appeal.
In respect of external review, Article 22 provides for a complex scheme,
insofar as it refers to a variety of recourses: court or the Russian
Federation’s Human Rights Commissioner and, the Article then states that a
procedure for “administrative appeal” before going to court may be established
by the Russian Federation.
The provision on compensation should be removed to Article 24. In any case,
care should be taken that individual information officers etc are not
scapegoated by being made personally liable for a poor information environment
that is the responsibility of the management of the body concerned.
The commentator cannot comment on the notion of “sustained damages”.

Recommendations

· Internal review should be dealt with in the appropriate part of
the law

· The external review mechanism should be simplified

· The reference to the possibility of an administrative appeal
procedure should be deleted

Control and supervision over Observation of the Right of Access to
Information (Article 23)
Parts of this Article seem to be more suited to be inserted into Article 12.
It is unclear if the sub-section regarding the prosecutor’s office is necessary
insofar as seems to be a general administrative provision.

Recommendations

· Transfer certain sections of Article 23 into Article 12

· Delete the sub-section regarding the Prosecutors office

Responsibility for Infringing the Right of Access to Information (Article 24)
Whilst it is desirable that a FOI law contain some provisions regarding
sanctions, Article 24 is rather general and overly multi-layered (disciplinary,
administrative, civil and criminal responsibility). In the first place, the
comment made under Article 22 applies: whilst an individual officer may be
guilty of such behaviour, often the real responsibility lies with senior
management. Second, there should be a “good faith” defence. Third, offences
should be specified and there should be a specific offence of intentionally
destroying records after a request for disclosure has been received. Fourth, the
upper limits of any sanctions should be stated in the law.

Recommendations

· Sanctions should be limited to civil and criminal types

· There should be a good faith/ reasonableness defence to protect
individual employees against a recalcitrant authority

· Administrative sanctions should be exercisable against public
bodies

· The offences should be specified

· Upper levels of fines etc should be stated

Final Provisions

[Interim provisions; coming into force]

Interim Provisions (Article 25)
It is unclear why Article 9 (38) should not come into force more quickly.

Recommendation

· Reconsider the provision with regard to Article 9 para 38

Coming into Force (Article 26)
The provision that the law come into force from the day of its official
publication seems good, but it is not clear to the commentator whether “official
publication” may be delayed indefinitely. It might be better to have a specific
provision regarding the coming into force of the law. The provisions regarding
compatibility of other laws etc to take effect within three months is welcome.

Recommendation

· There should be a statement specifying the time period - which
should not exceed six months - within which the law will come into force

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