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Officials want to bend public information law to their advantage – experts

Rein Lang.
Rein Lang. Source: Priit Mürk/ERR

Rein Lang and Ivar Tallo, who co-authored the Estonian Public Information Act in 2001, say that the current law and the latest proposals to amend it are biased towards protecting the interests of public officials, which restricts freedom of information principles.

In October, the Ministry of Justice invited recommendations from other ministries for amending the Public Information Act, which is part of the government's action program.

Rein Lang, the former minister of justice and former head of the working group on the freedom of information law, said that the act should be amended, but in a different direction than the officials are currently pushing it in – it should do away with unjustified exemptions.

"I once chaired the working group that came up with the current law, but it has been amended quite a bit since then. At least once a year – like perpetuum mobile – the various agencies want to declare some public information for internal use. If you analyze these proposals a little bit, none of these arguments are justified," Lang said.

"Now, if you look at the current proposals [submitted in October and November], the Ministry of Justice should say straightaway that it is not possible to take those into account," he said.

Lang agreed that the law should be reviewed, as the last time our information laws were reviewed was in 2007, 15 years ago.

"Perhaps we should create a more general information law, because the problem today mainly is that the various individual databases, which are very good in Estonia – of decent quality – and which have been maintained for 15 years, still cannot be used freely either in public administration or as open access data," Lang said.

Lang said that the Ministry of Justice's initiative to amend the information law is certainly justified, "but if the general attitude is that we're going to restrict access to public information in the process, that's obviously absurd."

Rein Lang. Source: Priit Mürk/ERR

It is a specific kind of administrative bureaucratic system (ABS), which is the driving force behind agencies' eagerness to restrict information access, Lang said.

"It only evolves in one direction – defending its own interests. In Estonia, this ABS has become rather powerful because of the poor political leadership. Everybody has their own interests, and of course the ABS's biggest interest is to make sure that information about its activities does not get out," he said.

Lang said that all information relating to public administration should be accessible to everyone online with the use of a standard search engine.

"The approval of the restriction 'for internal use' should be granted only in truly justified, extreme cases. These are, in particular, matters relating to personal data and, in some cases, but by no means in all cases, business secrets that become known to the authorities. But if someone seriously starts to classify the information about the use of taxpayers' money, this would be contrary to the basic principle of the law," Lang said.

Ivar Tallo, a politician and political scientist who was also a member of the working group that drafted the original law, points out that Estonia is a signatory to the Tromsø Convention, which entered into force in 2021.

"This is a Council of Europe convention. Our working group – which was set up to implement the convention and of which I am a member – drafts and discusses the public information laws of all member states. It also reveals a number of points which it is probably wise to clarify in the case of Estonian law," Tallo said.

He said that Estonia does consider what should and should not be classified information, but does so on a category basis rather than on a case-by-case basis.

Ivar Tallo.

"Other countries that have acceded to this convention are very clear about the need for reflection: that if a person needs certain information and asks for it, it should be considered, not just labeled as classified and forgotten. We are biased toward making officials more comfortable. This is understandable because officials certainly have no interest in communicating all the time, but in cases where people have a legitimate interest, it has to be possible to satisfy  it," Tallo said.

Drawing on his own experience, Tallo described that "there are a lot of cases these days when you deal with government officials and they say: "I would like to give you this paper, but. it is classified."

"This approach is wrong in itself. There needs to be a reflection on every occasion, rather than simply referring to it as 'for internal use only,'" Tallo explained.

He added that now is a pivotal moment that was not imagined at the time. "When we wrote Section 35 of the Public Information Act, which has a definition of restricted information, we decided in the working group, and later in the Riigikogu, that we couldn't put a definitive list of items in there, that it would not make sense. The restricted information should be defined by the head of the institution, so that it can be dealt with in a more flexible way," Tallo explained.

In mid-October, the Ministry of Justice sent a letter to other ministries and the Chancellery of the Riigikogu, stating that the Ministry of Justice would like to map out the possible need to amend the Public Information Act and is looking for feedback.

By mid-November, a large number of responses had been collated, revealing that the majority of ministries are making clear recommendations to tighten their grip on access to information.

However, according to the Ministry of Justice, these proposals will not be directly included in the drafting of the new Public Information Act and further action will only become clear in the spring.

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Editor: Mari Peegel, Kristina Kersa

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