B.Purevsuren: There is no regulation that information must be given with the approval of the director

B.Purevsuren: There is no regulation that information must be given with the approval of the director

  • By Dashmaa   -   Feb 10,2023
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I talked to B.Purevsuren, a lawyer from the Globe International Center NGO, about the implementation of the Law on Public Information.

-Globe International Center NGO monitored the Law on Public Information. How wide is the coverage? What was the result?

-The law was approved on December 17, 2021. At that time, in the fall session of the Parliament in 2021, 137 laws were approved and amended. Among them is a set of e-development laws. It includes four laws: Public Information Transparency, Electronic Signature, Protection of Personal Information, and Cyber Security. These laws came into effect on May 1, 2022. Since then, our organization has been monitoring the Law on Public Information and presented the results of the first phase on August 29, 2022. The next round of monitoring was completed on December 31, 2022, and the consolidated results were released. It includes seven provinces and two districts of the capital, and 1,413 citizens and officials of information-responsible organizations were involved, which is not a little number. The purpose of monitoring is to monitor the knowledge and understanding of citizens and employees of data-responsible organizations and the activities of data-responsible organizations. In this law, it is stated that five organizations are responsible for the information. For example, it includes state organizations, state, and local-owned organizations, legal entities performing government functions based on contracts, public radio and television, and political parties. As a result of monitoring, the level of knowledge and understanding of citizens was 68 percent. 66 percent of the officials of the organization are responsible for the information. In other words, it was two percent less than that of citizens.

-Nine months have passed since the implementation of the law. But why is the knowledge and understanding of the officials of the organization responsible for the information insufficient?

-The government did not fulfill its duty to promote the law. Two days before the implementation of this law, on April 29, 2022, the Law on Budget Savings was approved. The law prohibits the training and promotion work of all government organizations. On the other hand, regulations related to the implementation of the law were not issued on time. Some have not yet been confirmed. For example, 11 regulations related to the electronic development package law have not been issued. For example, in the framework of the law on transparency of public information, the general procedure for the planning of public information infrastructure has not been approved. All procedures should have been ready by May 1, 2022, when the law begins to be implemented. But the government is very slow about it.

-Even if government organizations do not have training and advertising expenses, aren’t they responsible for studying and implementing the relevant laws?

-Of course, an officer of a law enforcement organization must have knowledge and understanding of the law. However, it is the government’s responsibility to provide information about the law to its employees.

-Officials say that the law on public information has made many types of government information public. But in reality, have government agencies disclosed their information?

-According to this law, for the first time, our country classified information into three categories: open, closed, and restricted. Category open includes 606 pieces of information of 68 types in five directions. We selected 51 organizations responsible for the information. 38 of them must disclose 44 types of information according to the law. However, only 41.5 percent was disclosed. According to the law on transparency of public information, both citizens and legal entities have the right to request information. As part of our monitoring, we have requested all kinds of information from relevant organizations such as citizens, civil society organizations, or legal entities following the law: orally, in writing, and electronically. In doing so, we managed to get only 47 percent of the information we wanted. Four percent of them received incomplete information. A total of 51 percent managed to get information in some way. It means that one out of every two pieces of information is not given at all. The government was quite optimistic when approving the Law on Transparency of Public Information. For example, there will be positive changes in the index of press freedom, corruption, and good governance. However, according to the press freedom index released on May 3, 2022, our country fell 22 places back and ranked 90th out of 180 countries. “Transparency International” recently presented the index of perception of corruption, which has reached a historical low. 

Organizations that refuse to provide information will be fined

-Both organizations were included in the monitoring. Which organization refuse to provide information?

-Orkhon Province is the place that made its information the most transparent and it was 68.9 percent. Bayan-Ulgii province has the worst performance, with only 18.5 percent of its relevant information open. In addition to these, Khuvsgul, Khovd, Selenge, Umnugovi, and Uvs were included. Two organizations can be defined as special among the five areas of organizations that are responsible for the information. One is a political party and the other is public radio and television. When we requested 2 to 3 types of information from MNT, we did not receive a response. When asked for information related to donations and funding from the parties, they were not provided. Enterprises that perform government functions under contract have also been lax. According to the sector, mining information is the most closed.

-What are the main reasons and justifications given by organizations when they refuse to provide information?

-One part did not even give a reason. Some say, “We don’t have such information yet.” During summer monitoring, many excuses were given: “The officer in charge is missing”. This is a very common phenomenon in our country. Before that, in 2011, the Law on Information Transparency and Right to Information, which was implemented for more than 10 years, had similar problems. It still is. Or maybe there is a pattern of refusing to provide information without reason.

-What liability will be charged if the information specified to be open is not provided?

-The Law on Public Information increased responsibility. For example, criminal and violation laws will impose liability. If there is no sign of crime or violation, it is possible to impose responsibility under the Civil Service and Labor Law. Specifically, the Criminal Code provides for liability in case of disclosure of confidential information. Section 15.34 of the Law on Infringement has a section entitled “Breach of Public Information Disclosure Act”. It states that “If the illegal use or disclosure of restricted information other than official secrets is not a crime, a person will be fined one hundred units, and a legal entity will be fined one thousand units.” This is a disclosure provision. However, if the information specified as open is not disclosed, the legal entity will be fined 5,000 units, according to the Law on Infringement. In other words, the organization that did not provide the information will be fined 5 million MNT. Officials who do not provide information will be held accountable under the Civil Service and Labor Laws, as well as being fined as a percentage of their salary, and may be demoted. In addition, the National Human Rights Commission (NHRC) has the right to conduct inspections in this area, and to issue recommendations and requirements to relevant organizations. If you cannot get information from any organization, contact the higher-level organization. In the absence of a higher-level organization, applications and complaints can be submitted to the court and the NHRC. 

If implemented well, Law on Public Information can fight corruption

- When journalists ask for information from any organization, especially ministries, and agencies, it is a standard to say, “I will give information if the chairman approves.” Are there any regulations like that in the relevant laws?

- Within the framework of the law, there is no provision to provide information with the permission of the head. In general, we lack a culture of providing information promptly. The traditional “culture” of reluctance to provide information is alive and well. According to the law on transparency of public information, the information that can be provided immediately is provided immediately upon receipt of the request. However, if it is not possible to give it immediately, it is stipulated to give it within five working days of receiving the request. Also, it is legalized that the authorized officer can extend the period by up to 10 days, taking into account the scope of the information and the time required for preparation. In such a case, it is not clear whether the five days should be made into 10, or whether they should be added to make a total of 15. The law should not be ambiguous. However, the above term can be understood differently. Therefore, in connection with the e-development package law, there is a need to issue an explanation of official terms in the future. In particular, terminology for innovative concepts related to electronic infrastructure should be clarified. 

Our country has drowned in its state secrets

-During the Covid-19 period, government information has become closed. Even now, the situation has not improved much. How can it be changed and what solutions will be created?

-The Media Council conducted a survey of 300 journalists in 2020 and 2021, or during the pandemic. This study concluded that journalists lack resources and government institutions are much closed. Our center conducted a safety survey of journalists on the occasion of Press Freedom Day, May 3, 2022. Almost 10 percent or 233 of the journalists belonging to the editorial office, which operates daily, were included in it. 67 percent of them answered that the right to information is violated and the organization refuses to provide information without reason. For the past 20 years, this has been the most pressing issue in researching the security of journalists. In 2019, with the support of the Asia Fund, our organization conducted a large-scale study on the topic of “Analysis of laws restricting the right to information”. According to the law on the approval of the list of state secrets approved and implemented in 2004, there were 60 state secrets. However, at the time of the research, in 2019, this number reached 565, an increase of almost 10 times. The old social concept of keeping things secret is still alive. Of course, there should be state secrets in any country. However, in our country, apart from the state, there are even official secrets. The Law on State and Official Secrets was approved on December 1, 2016, and went into effect on September 1, 2017. According to this law, organizations have official secrets. Apart from state secrets. It is impossible to count how many official secrets there are. Because there are thousands of government organizations in Mongolia. All of that is an official secret. It is said that there are at least 15 to 20 and at most 100 to 200 secrets. The official secret list is also secret. The list should be transparent. So, our country is drowned in state and official secrets. It needs to be thoroughly looked at and sorted out.

-There is a risk that the set of e-development laws, especially the Law on Public Information, will not be implemented and remain on paper. How to change it?

-Per the law on public information, a part-time council has been established in the Ministry of Justice and Internal Affairs, which is responsible for evaluating and making recommendations to organizations responsible for the information. This council will collect and consolidate information from government institutions and make recommendations to the Parliament and the Government. In other words, it means that the percentage of information that should be open will be evaluated, and recommendations will be made. However, citizens’ applications and complaints will not be accepted. It is important that the council does its job well and creates incentives to implement the law.

Dashmaa D