Agencies still classify too many documents

Page from a tender marked as
Page from a tender marked as "intended for internal use" (Asutusesiseseks kasutamiseks). Source: ERR

The law says that everyone should have access to information intended for public use, and yet government agencies routinely stamp documents "for internal use." The tendency toward excessive secrecy has been recognized for years, but the situation has not improved; political will is needed to effect a change.

The ERR reported in 2021 that government agencies are increasingly rubber-stamping documents for internal use and, as a result, citizens are becoming less informed about what is happening in the offices. After nearly two years, the situation has not improved.

Aside from the fact that some papers are labeled "for internal use" (FIU) without explanation, strange situations can also happen. This week, ERR published the talking points that Prime Minister Kaja Kallas intended to use in an interview with ETV to defend Elektrilevi's separation from Eesti Energia and discuss the Ministry of Finance's criticism of her ideas.

That document appeared in the Ministry of Finance's public registry in the early hours of January 10 but vanished from there less than an hour after the ERR article was published. When ERR asked the ministry about it, the document reappeared.

Liisa Ojangu, chief of supervision at the Data Protection Inspectorate (AKI), told ERR that they do not collect data from public agencies on the proportion of documents that get classified "for internal use."

The monitoring of document registers reveals that the most frequently cited reason for secrecy is the provision of the law that permits a limitation of use based on personal data—access to the information contained in a document would seriously compromise the data subject's privacy.

The tendency to restrict public access to documents too readily has not changed over time, but neither has it noticeably gotten worse, Ojangu said.

A person's name and ID number are not sufficient reasons for limiting access to documents

"Remember that the paragraph 12 [of the section 35-1 of the Civil Service Act] does not indicate that all personal information should be subject to FIU restrictions. For instance, a first name, last name and personal identification number are insufficient reasons to justify an FIU restriction," she stressed.

There may be something about a named person in the content of such documents that requires restriction; however, there are no reasons to restrict, for example, the names and contact information of individuals writing on behalf of legal entities, Ojangu explained.

She cited instances where only a small portion of a document contains sensitive information, making it unnecessary to restrict access to the entire document; covering the sensitive portion would suffice. Ideally, the section of a document not covered by the FIU marking should be instantly available via the register.

"Unfortunately, this is technically complicated since many documents are signed digitally; you would need to prepare two separate documents, the original and a so-called 'cleared' version. As far as we know, document management systems are not currently set up in such a way that the original could be made not public and the cleared file public," Ojangu said, adding that it is certainly possible to achieve this.

However, the Public Information Act is drafted with the assumption that the majority of government files are paper documents: "The person who prepares a document classified as information intended for internal use shall make a notation "FOR INTERNAL USE" in capital letters on the document or file of documents." The law requires that the lifting of restrictions also be stated on documents.

"However, how do I annotate a document that has already been digitally signed?" Ojangu remarked.

When an authority receives a request for information from such a document, the restricted data must be cleared and the user must able to see the unrestricted information within the document.

Moreover, under the law information may also be disclosed "passively." In the document registry of a ministry, for instance, there may be a number of documents that are not subject to restrictions but nevertheless cannot be accessed directly. To obtain these documents a request must be first submitted to the ministry; however, this assumes that the person making the request knows exactly what he or she is looking for.

Ojangu said that the law only specifies, which information must be actively disclosed on an institution's website, and so does not mandate active disclosure for other information.

If the AKI finds while monitoring document registries that an FIU designation is unjustified, the institution is notified. However, it is primarily the responsibility of each institution to determine whether information that should not be made public in the register's external view is made public, and vice versa, Ojang continued.

"The AKI checks the document registers as part of the annual monitoring, as well as at random in the scope of formal notice letters and other procedures," Ojangu explained said.

Secretary of State: The issue is real and complicated

Secretary of State Taimar Peterkop has earlier said that the day-to-day implementation of the Public Information Act has fallen short of the law's objective, which is to ensure that all citizens have access to information intended for public use. He confirmed to ERR that the problem still persists today.

"It is a problem, a complex problem and it certainly needs to be addressed," Peterkop said.

Simply choosing to remove the FIU designations is not acceptable, the secretary of state said. There are reasons for their overuse, which need to be evaluated and require time and attention.

"This issue must be prioritized for our world now to start making sense. On the other hand, the security situation has become much worse, we have to take that also into account in our activities, so as not to make life easier for our belligerent neighbor to the east, that is plotting evil against all its neighbors," Peterkop said. "This is a new world that requires thorough re-examination."

For any changes to occur on this front, this issue must be a political priority, and according to the secretary of state, the moment to address these concerns is in the run-up to the elections.

Ülle Madise, Chancellor of Justice, has also been involved.

At the end of last year, Peeter Ernits, a member of the Riigikogu, approached her and questioned the justification for the FIU designation of a document from the Ministry of Education. He also inquired as to how many documents in Estonia are subject to a 75-year access restriction and whether these should be made public.

Disclosure is the rule; secrecy is the exception

In her reply, the chancellor said that under the Constitution, everyone has the right to receive freely disseminated information for public purpose, and that state and municipal government authorities are required to offer information on their activities upon request.

"Access does not extend to data, whose dissemination is forbidden by law and which is intended solely for internal use," Madise said.

The chancellor also said that the access to information for public use is guaranteed by the Public Information Act, which emanates from the principle that "the public nature of public information is the rule and the designation of documents 'for internal use' is the exception."

Examples of data intended for internal use include information containing sensitive personal data, such as health data or, before a public hearing, a verdict or the conclusion of proceedings. A restriction is also warranted if access to such data would  seriously compromise an individual's privacy.

According to the law, government document registers must include documents received by and sent from the agency, as well as legal acts produced and signed within the agency and concluded contracts. In contrast, accounting documents are not needed to be entered into the document register.


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Editor: Kristina Kersa

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