Constitutional Court: restrictions on access to information should not compromise the right to receive information itself

On the ground of citizen's appeal, The Constitutional Court verified the constitutionality of paragraph 2 and subparagraph 3) of Article 11, paragraph 16 (16) of the Law “On Access to Information” (hereinafter – the Law).

Provisions of the Law contested by the subject of the appeal do not allow the issue of information with restricted access upon request.

The subject of the appeal argued that paragraph 2 and subparagraph 3) of Article 11, paragraph 16 of the Law do not comply with Article 18, paragraph 3 of the Constitution, which provides for the obligation of State bodies, public associations, officials and the mass media to ensure that every citizen has the opportunity to familiarise himself with documents, decisions and sources of information affecting his rights and interests.

The Constitutional Court emphasised the constitutional obligation of state authorities to ensure that every citizen has the opportunity to familiarise himself with documents, decisions and sources of information affecting his rights and interests.

This obligation and right of the citizen should be considered in relation to other constitutional provisions, in particular that the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons or infringe on the constitutional order and public morality (Art.12, para. 5); the right of everyone to defend his or her rights and freedoms by all means not contrary to the law (Art.13, para. 1); the right to freely receive information (Art. 20, para. 2); and the conditions for restricting human and civil rights and freedoms (Art. 39, para. 1 and 3).

The special procedure for access to and acquaintance with information is set out in legislative acts on various types of judicial and administrative offence proceedings, archives and the media (Article 3 of the Law).

While recognising the possibility of establishing restrictions on access to information, the Constitutional Court considered that these norms should not compromise the existence and purpose of the right to receive information, especially in cases where the information and its sources are related to the rights and freedoms of citizens, the application of various measures of legal coercion against them or issues of high public importance.

The obligation of State bodies to ensure that every citizen has the opportunity to familiarise himself or herself with documents, decisions and sources of information affecting his or her rights and interests, as set out in Article 18(3) of the Constitution, and the corresponding right of the citizen to familiarise himself or herself with relevant materials, should also be prioritised over the restriction of such an opportunity, especially in cases of adverse consequences for the citizen as a result of decisions and actions of State bodies. Notwithstanding that the right of the person concerned to be informed may be subject to reasonable and proportionate restrictions, having regard to the content of the document, the decision and the source of the information, in certain situations these restrictions should not be an insurmountable obstacle to the realisation of the constitutionally enshrined right. In necessary circumstances, public bodies shall take appropriate action to ensure with bearing in mind that it is information, not sources or carriers, that is subject to restrictions on access, following: information subject to restrictions is separated from information to which access is not restricted; the status of a document is changed, access to information is permitted or other measures are implemented to ensure, on the one hand, that the right of access to information is respected and, on the other hand, that other legally protected rights, freedoms and interests are not prejudiced.

According to the opinion of the Constitutional Court, ensuring the necessary balance between the interests of the user and the holder of information, as well as between personal, public and State interests, as well as the constitutional provision that the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons or infringe on the constitutional order and public morality, must be taken into account both when deciding whether to provide information or to familiarise oneself with it, and when refusing to provide it.

This approach is incorporated in the legislation of the Republic of Kazakhstan.

As a result of the verification, the Constitutional Court recognised paragraph 2 and subparagraph 3) of paragraph 16 of Article 11, paragraph 16 of the Law of the Republic of Kazakhstan "On Access to Information" consistent with the Constitution of the Republic of Kazakhstan.

The full text of the regulatory resolution can be found at the link https://www.gov.kz/memleket/entities/ksrk/documents/details/575248?lang=ru