Ensuring citizens' access to information about the activities of state authorities and local self-government bodies

Topic #10

INFORMATION RELATIONS IN THE SYSTEM OF STATE AND MUNICIPAL MANAGEMENT

1. Ensuring citizens’ access to information about the activities of public authorities and local governments.

2. The practice of regulating the information openness of public authorities in foreign countries.

3. Information technologies for the provision of state and municipal services.

Ensuring citizens’ access to information about the activities of state authorities and local self-government bodies

For a long time in the public administration system in Russia there was no legally established procedure for citizens to access information about the activities of state authorities and local governments. This procedure was formed gradually and basically the process of its consolidation was completed with the adoption of the Federal Law of February 9, 2009 No. 8-FZ “On ensuring access to information of state bodies and local governments”[1].

At the same time, over the past two decades, this issue has constantly been in the field of view of legislators. One of the first attempts to formulate the principle of access to official information was the adoption in 1991 of the Declaration of the Rights and Freedoms of Man and Citizen, Art. 12 of which read: “Every person has the right to receive complete and reliable information about the state of affairs in all spheres of state, economic, social and international life, as well as on issues of rights, legitimate interests and obligations. The publication of laws and other normative acts is a prerequisite for their application” [2] .

The constitutional and legal basis for the mechanism of citizens’ access to information was the norms of the Constitution of the Russian Federation[3], which reveal the content of citizens’ right to information. These include, firstly, the obligation of the state to officially publish laws (Part 3, Article 15); secondly, the protection of information about personal data (art. 23); thirdly, the obligation of state authorities and local self-government to provide an opportunity to familiarize themselves with documents and materials that directly affect the rights and freedoms of the citizen who submitted the request (part 2 of article 24); fourthly, the right of citizens to freely seek, receive, transmit, produce and disseminate information (Article 29); fifthly, the responsibility of officials for concealing facts and circumstances that pose a threat to the life and health of people (part 3 of article 41); sixth, the right of citizens to reliable information about the state of the environment (Article 42).

Constitutional provisions have been developed in federal constitutional laws. This, in particular, is the Federal Constitutional Law of December 17, 1997 No. 2-FKZ “On the Government of the Russian Federation”[4], which establishes the procedure for submitting annual reports of the Government of the Russian Federation on the results of its activities to the State Duma, as well as providing information on the execution federal budget to the Accounts Chamber and the State Duma; Federal Constitutional Law No. 5-FKZ of June 28, 2004 “On the Referendum of the Russian Federation”[5], which establishes legal relations for the information support of the referendum, etc.

The package of federal laws is also quite significant. First of all, these are two codes – the Code of Administrative Offenses of the Russian Federation[6] and the Criminal Code of the Russian Federation[7], which establish legal liability for offenses related to the failure of public authorities to provide relevant information, its concealment or distortion, unlawful refusal to provide a citizen with collected in accordance with the established procedure, documents, materials directly affecting the rights and freedoms of a citizen, as well as providing a citizen with incomplete or deliberately false information, if these acts have caused harm to the rights and legitimate interests of citizens, etc.

Budgetary, Tax, Civil and other codified, as well as non-codified federal laws are of great importance in the regulation of information legal relations. Considering their large number and variety, we will indicate in chronological order only some of them:

Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media” [8] , according to Art. 38 of which citizens have the right to promptly receive reliable information about the activities of state bodies and organizations, public associations, and their officials through the media; Art. 39 establishes the right to request (orally and in writing) such information; Art. 58 provides for liability for infringement of freedom of mass media, including violation of the right of the editorial board to request information.

Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets” [9] , which regulates relations arising in connection with the classification of information as state secrets, their classification or declassification and protection in the interests of ensuring the security of the Russian Federation.

Federal Law No. 5-FZ of June 14, 1994 “On the Procedure for Publication and Entry into Force of Federal Constitutional Laws, Federal Laws, Acts of the Chambers of the Federal Assembly”[10], which
in Art. 1 establishes that only officially published federal constitutional laws, federal laws and acts of the chambers of the Federal Assembly are applied on the territory of the Russian Federation.

Federal Law No. 7-FZ of January 13, 1995 “On the Procedure for Covering the Activities of State Authorities in the State Mass Media”[11], which regulates relations arising from the dissemination of materials or messages about the activities of state authorities by state media Russian Federation and subjects of the Russian Federation.

Federal Law No. 184-FZ of October 6, 1999 “On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation”[12], which, along with other provisions, determines the procedure for the official publication (promulgation) of subjects adopted by state authorities RF normative legal acts.

Federal Law of October 6, 2003 No. 131-FZ “On the General Principles of Organizing Local Self-Government in the Russian Federation”[13], clause 7, part 1, art. 17 of which provides that in order to resolve issues of local importance, local self-government bodies of settlements, municipal districts and urban districts have the authority to establish a print media for publishing municipal legal acts, discussing draft municipal legal acts on issues of local importance, bringing to the attention of residents of the municipal formation of official information on the socio-economic and cultural development of the municipality, on the development of its public infrastructure and other official information. In addition, in accordance with Part 3 of Art. 68 of this Law, local self-government bodies may act as co-founders of an inter-municipal print media.

Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”[14] establishes that a citizen enters the civil service to fill a civil service position or a civil servant replaces another civil service position based on the results of a competition (if otherwise not established by law), and Decree of the President of the Russian Federation of February 1, 2005 No. 112 “On the competition for filling a vacant position in the state civil service of the Russian Federation” [15] specifies that the announcement of competitions to fill vacant positions in the civil service and for transfers to the reserve, as well as the results of the competitions held, are subject to mandatory disclosure, including those posted on the Internet.

Federal Law No. 98-FZ of July 29, 2004 “On Commercial Secrets” [16] , according to which a list of information that cannot constitute a commercial secret is defined (Article 5).

Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection”[17], which established the principle of openness of information about the activities of state bodies and local governments and free access to such information. It distinguishes between information, depending on the order of its provision or dissemination, to information: a) freely distributed; b) provided by agreement of the persons participating in the relevant relationship; c) which, in accordance with federal laws, is subject to provision or distribution; d) the distribution of which in the Russian Federation is restricted or prohibited (Part 3, Article 5).

Federal Law of July 27, 2006 No. 152-FZ “On Personal Data” [18] , which regulates the protection of the rights and freedoms of a person and citizen in the processing of his personal data.

Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” [19] . According to Article 7 of this Law, the Russian Federation provides free and free access to information about the contract system in the field of procurement. Openness and transparency of information are ensured, in particular, by placing it in a single information system, the information must be complete and reliable.

Federal Law No. 262-FZ of December 22, 2008 “On Ensuring Access to Information on the Activities of Courts in the Russian Federation”[20], which regulates relations related to user access to information on the activities of courts.

In addition to Russian legislation, one should also consider the international legal consolidation of the right to information . This right is ensured by fundamental international legal acts, which, in accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation are part of the Russian legal system.

It must be admitted that the international legal regulation of the principle of openness of public authorities has had a significant impact on the relevant domestic practice. In this regard, it should be recalled that even Article 19 of the Universal Declaration of Human Rights[21], adopted by the UN General Assembly in 1948, provided for the freedom of every person to seek, receive and disseminate information by any means and regardless of frontiers.

Later, this right was enshrined in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms [22] , signed in Rome in 1950, as well as Article 19 of the International Covenant on Civil and Political Rights [23] (New York, 1966).

The United Nations Resolution “On the Promotion of the Right to Democracy”, adopted in April 1999, defining a list of citizens’ rights that allow asserting the establishment of democracy in a particular country, among such rights names: the right to freedom to seek, receive and disseminate information and ideas through any medium; the right of citizens to choose their own system of government through constitutional or other democratic means; the right to equal access to public service in their country and other rights, the implementation of which is impossible without providing citizens with access to information about the activities of public authorities [24] .

The principle of openness of the decision-making system at the state and municipal levels underlies such international documents as the Aarhus Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 1998 and the Okinawa Charter of the Global Information Society dated July 22, 2000. The latter provides for the active use of information technology in the public sector, the promotion of real-time services, as well as increasing the level of accessibility of government bodies to citizens.

Ensuring effective access to information for the population, increasing transparency and promoting the involvement of the population in decision-making processes are enshrined in Article 13 of the United Nations Convention against Corruption of October 31, 2003 [25]

Russia’s important obligations to ensure access to information about the activities of public authorities are also contained in numerous interstate agreements. For example, in the Treaty of Friendship and Cooperation between the Russian Federation and the Republic of Moldova dated November 19, 2001[26] talks about the development of information systems, the exchange of information in the field of economics and law enforcement practice. Agreement between the Russian Federation and the Argentine Republic on cooperation and legal assistance in civil, commercial, labor and administrative matters of November 20, 2000[27] provides that the contracting parties, for the purpose of legal cooperation and in cases where this does not contradict the fundamentals of their legislation, provide each other with information on civil, commercial, labor and administrative issues, as well as on issues of private international law, without any payment. Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of Abkhazia dated September 17, 2008[28] provides for a broad exchange of economic information, providing access to it for enterprises, entrepreneurs and scientists from both sides, developing cooperation in the fields of culture, art, education, tourism and sports, as well as promoting free information exchange.

A fairly significant number of by-laws at the federal level adjoins federal legislation and acts of international law, which, first of all, include Decrees of the President of the Russian Federation and decisions of the Government of the Russian Federation. They, as a rule, concretize and supplement federal laws. In particular, Decree of the President of the Russian Federation of March 6, 1997 No. 188 [29] approved a list of confidential information, Decree of the Government of the Russian Federation of November 1, 2012 No. 1119[30] approved the requirements for the protection of personal data during their processing in information personal data systems.

A significant part of such acts are decisions that regulate the procedure for citizens’ access to information about the activities of specific public authorities. In particular, Decree of the Government of the Russian Federation of November 24, 2009 No. 953 “On providing access to information on the activities of the Government of the Russian Federation and federal executive bodies” [31] approved a list of information on the activities of the Government of the Russian Federation posted on the Internet; requirements for technological, software and linguistic means to ensure the use of the official website of the Government of the Russian Federation on the Internet; a list of information on the activities of federal executive authorities, which are managed by the Government of the Russian Federation, and subordinate federal executive authorities, posted on the Internet (a very detailed list of types of information was given – a total of 56 points , mandatory for publication by federal executive authorities and recommended for publication by regional and municipal authorities). Similar acts have been adopted by many federal executive bodies.

When considering these acts, there may be doubts that the focus on the Internet as a source of information is not sufficiently justified. However, according to the Russian branch of the research concern GfK (Gesellschaft fur Ko№sumforschu№g), the total number of network users aged 16 and over in Russia
in 2016 compared to 2010 increased by 1.9 times and is 70.4% (about 84 million people).

In addition, in February 2016, Russia ranked first in Europe and fourth in the world in terms of the number of users of fixed broadband Internet (BBA). There are more broadband users than in Russia only in China, the USA and Japan. [32]

The task of eliminating the digital divide between urban and rural residents was set in the Federal Law
“On Communication”[33]. On February 3, 2014, Russian President Vladimir Putin signed the Federal Law “On Amendments to the Federal Law “On Communications”[34], which provides for the creation of access points in settlements with a population of 250 to 500 people and providing the population with access to the Internet at a speed of at least 10 Mbps.

According to the program “to bridge the digital divide”, users of access points are provided with free access to two thousand Internet sites, including websites of state authorities, a portal of state and municipal services, media outlets that officially publish federal and constitutional laws, acts of the chambers of the Legislative Assembly and other normative legal acts of the federal executive authorities.

The Internet access service itself is provided at a social tariff. Its size was approved by Decree of the Government of the Russian Federation No. 312 dated April 2, 2015[35] and amounts to 45 rubles per month without restrictions on the amount of transmitted or received information at speeds up to 10 Mbps.

Another way to ensure mass access to information is the development of information interaction between public authorities and local governments. To achieve this goal within the framework of the federal target program “Electronic Russia 2002-2010.” in 2007 – 2010 the All-Russian State Information Center (hereinafter referred to as the OGIC) functioned.

Decree of the Government of the Russian Federation of December 25, 2007 No. 931 “On certain measures to ensure information interaction between state bodies and local authorities in the provision of public services to citizens and organizations” [36] (repealed) was recognized as necessary to ensure in 2008 the transition of federal bodies state authorities to provide public services to citizens and organizations in electronic form using software and hardware and telecommunications infrastructure of the OGIC.

It was envisaged that from January 1, 2008, federal executive authorities, when providing citizens and organizations with public services related to the exchange of information contained in the databases of information systems of state bodies and local governments, should provide using the software and hardware and telecommunications infrastructure of this center and, as a result, there should have been a reduction in the operations performed when performing the procedure for obtaining a public service, as well as ensuring reliable documentation of the operations performed by an authorized person. However, as of September 2010, the OGIC was decommissioned due to a scandal when choosing an operator to service the SMEV (interdepartmental electronic interaction system).

One of the first legal documents regulating the creation of SMEV is Decree of the Government of the Russian Federation No. 478 dated June 15, 2009 “On a unified system of information and reference support for citizens and organizations on issues of interaction with executive authorities and local governments using information and telecommunication the Internet” [37] (no longer valid).

This Decree was replaced in July 2010 by the Federal Law of the Russian Federation of July 27, 2010 No. 210-FZ “On the organization of the provision of state and municipal services”[38], as well as the Decree of the Government of the Russian Federation of September 8, 2010 No. 697 [39], approving the “Regulations on a unified system of interdepartmental electronic interaction.”

According to this document, SMEV is created for “information exchange carried out with its use between the information systems of federal executive authorities, state off-budget funds, executive authorities of the constituent entities of the Russian Federation, local governments, state and municipal institutions, multifunctional centers, other bodies and organizations for the purpose of providing state and municipal services and performing state and municipal functions in electronic form.

The next regulatory legal act regulating SMEV was the Order of the Ministry of Telecom and Mass Communications of Russia dated June 23, 2015 No. 210 “On approval of technical requirements for the interaction of information systems in a unified system of interdepartmental electronic interaction”[40].

This is a large-scale technical document that defines the standard for connecting departmental information systems to SMEV, their interaction through SMEV, determines the exact list of information on public services to be provided in the consolidated register and on a single portal.

Requirements for the infrastructure that provides information and technological interaction of existing and created information systems used to provide state and municipal services and perform state and municipal functions in electronic form are enshrined in Decree of the Government of the Russian Federation dated June 8, 2011 No. 451 “On infrastructure providing information technology interaction of information systems used to provide state and municipal services and perform state and municipal functions in electronic form” [41] .

The Decree defines the cases of application of information interaction, as well as the procedure for information and technological interaction of information systems.

Considering that the procedure for providing information on the activities of government bodies involves the use of modern information technologies, when considering the legal support for such an order, it becomes necessary to refer to program documents that determine the formation of the information society in Russia. These documents will be discussed in more detail below, however, we note the importance of the following documents.

At the federal level, the fundamental document that replaced the FTP “Electronic Russia” is the State Program of the Russian Federation “Information Society (2011 – 2020)” [42], approved by Decree of the Government of the Russian Federation of April 15, 2014 No. 313.

The program is aimed at creating a wide range of opportunities for using information and communication technologies for industrial, scientific, educational, social purposes, it should increase transparency and manageability, ensure the stability and competitiveness of the economy as a whole. Work is being carried out in many areas: the creation of e-government, overcoming the digital divide, the development of new communication technologies.

The main principle of the program is that the results should bring real, tangible benefits to people, i.e. any citizen, regardless of age, state of health, region of residence and any other characteristics, should be provided with the opportunity to access simple and understandable electronic services, for example, making an appointment with a doctor via the Internet, paying fines from a mobile phone, etc.

The priorities of the state program “Information Society (2011 – 2020)” are defined:

· The Strategy for the Development of the Information Society in the Russian Federation approved by the President of the Russian Federation on February 7, 2008 No. Pr-212.

The purpose of the formation and development of the information society, according to this document, is to improve the quality of life of citizens (ensuring a high level of accessibility of information and technologies for the population; improving the system of state guarantees of constitutional rights of man and citizen in the information sphere, etc.), developing economic, socio-political , cultural and spiritual spheres of society, improving the public administration system based on the use of information technology.

The strategy is the basis for the preparation and clarification of doctrinal, conceptual, policy and other documents that determine the goals and directions of activities of public authorities, as well as the principles and mechanisms of their interaction with organizations and citizens in the field of information society development in the Russian Federation.

· The concept of long-term socio-economic development of the Russian Federation for the period up to 2020, approved by the order of the Government of the Russian Federation of November 17, 2008 No. 1662-r.

The document defines ways and means of ensuring in the long term (2008-2020) a sustainable improvement in the well-being of Russian citizens, national security, dynamic economic development, and strengthening Russia’s position in the world community.

· The Strategy for Innovative Development of the Russian Federation for the period up to 2020, approved by the Decree of the Government of the Russian Federation of December 8, 2011 No. 2227-r.

The strategy was developed on the basis of the provisions of the Concept of long-term socio-economic development of the Russian Federation for the period up to 2020 and is designed to respond to the challenges and threats facing Russia in the field of innovative development, to determine the goals, priorities and tools of the state innovation policy.

· Strategy for the development of the information technology industry in the Russian Federation for 2014 – 2020 and for the future until 2025, approved by the order of the Government of the Russian Federation of November 1, 2013 No. 2036-r.

The strategy was developed to form a unified systematic approach of the state to the development of the information technology industry, its implementation will lay the foundation for further state activities in the field of integrated development of the industry, including through the interaction of its participants. The strategy defines the goals and main directions for the development of the information technology industry, as well as the mechanisms and ways to achieve the goals.

In addition, at the level of the subjects of the Russian Federation, the Concept of regional informatization, approved by the Decree of the Government of the Russian Federation of December 29, 2014 No. 2769-r [43] , is in force. The concept defines the main goals and directions of activity for the use of information and communication technologies (ICT) in the public authorities of the constituent entities of the Russian Federation for the period up to 2018.

The provisions of the Concept apply to the informatization of regional government bodies, local governments and organizations that place a state task or a municipal task (order) for the provision of state and (or) municipal services.

According to the concept, the main tasks of regional informatization are:

· comprehensive and consistent with the goals defined at the federal level, the implementation of programs for the socio-economic development of the regions;

Improving the quality and accessibility of the provision of state and municipal services, as well as services provided by state and municipal institutions and other organizations in which a state or municipal task (order) is placed, using information technologies;

· increasing accessibility for citizens of information about the activities of public authorities and local self-government;

· formation of a regional information and telecommunications infrastructure necessary for information interaction;

· providing comprehensive management of the introduction of information and communication technologies in the constituent entities of the Russian Federation.

In accordance with Art. 3 of the Federal Law of February 9, 2009 No. 8 “On Providing Access to Information on the Activities of State Bodies and Local Self-Government Bodies”, the legal regulation of relations related to ensuring access to information on the activities of state bodies of the constituent entities of the Russian Federation and local self-government bodies is carried out by the federal legislation, as well as laws, other regulatory legal acts of the constituent entities of the Russian Federation, and in relation to local governments – municipal legal acts.

For example, the Law of the City of Moscow dated March 31, 2004 No. 20 (as amended on February 24, 2016) “On Guarantees of Availability of Information on the Activities of Public Authorities of the City of Moscow”, Law of the Bryansk Region dated December 12, 2008 No. 111-Z “ On ensuring access to information on the activities of state bodies of the Bryansk region”, Law of the Krasnodar Territory dated July 16, 2010 No. 2000-KZ “On providing access to information on the activities of state bodies of the Krasnodar Territory, local governments in the Krasnodar Territory” and other legal acts subjects of the Russian Federation.

In the subjects of the Russian Federation, the regulations for information support of Internet sites are also approved. For example, Decree of the Government of the Jewish Autonomous Region of April 14, 2010 No. 107-pp “On the status of the official Internet portal of the state authorities of the Jewish Autonomous Region and the regulations for its information support.”

In addition, the “Open Region” project is being implemented at the level of the constituent entities of the Russian Federation, aimed at creating conditions for increasing the efficiency of the activities of both state and municipal authorities, through the introduction of openness mechanisms, which involves providing citizens with information in an accessible and understandable form.

The main objectives of the implementation of the project “Open Region” are:

Improving the quality of public services through the development of a competitive environment in their implementation;

· effective use of public potential, both in the development of public decisions, and in the implementation of individual public services;

Improving the quality of life of citizens through a timely response to socio-economic challenges;

Growth of trust between society and the state.

Each region independently develops a program for the implementation of the openness project, which is regulated at the regional level, for example: Decree of the Governor of the Perm Territory dated March 11, 2014 No. 29 “On Approval of the Regulations on the State Automated Information System of the Perm Territory “Open Region. Blogs.

To implement many of the planned activities, relevant regional programs are being developed. In particular, such a program was approved by Decree of the Government of Moscow dated August 9, 2011 No. 349-PP (as amended on October 10, 2016) “On Approval of the State Program of the City of Moscow “Information City” for 2012-2018”. The objective of the program is to carry out a set of organizational and methodological measures aimed at managing the implementation of the State Program.

The state program of the city of Moscow is a system of measures aimed at achieving significant results for the city, the implementation of which is carried out over a long period.

The implementation of the program is aimed at improving the quality of life of the population of the city of Moscow through the large-scale use of information and communication technologies in the social sphere, in the field of ensuring the integrated security of the city of Moscow, in all areas of urban management, as well as in the daily life of citizens, as well as to increase the efficiency and transparency of city government.

Local governments , in accordance with the requirements of federal legislation, must also establish by their legal acts the procedure for obtaining information about their activities, for example, by Resolution of the Administration of the city of Gorno-Altaisk dated May 28, 2010 No. 49 (as amended on February 17, 2015) “On ensuring access to information about the activities of local self-government bodies of the municipal formation “City of Gorno-Altaisk”, the procedure for obtaining information by citizens about the activities of local self-government bodies is determined. Such acts are supplemented by the establishment of the structure of Internet sites.

Simultaneously with normative regulation, the necessary organizational and legal measures are being taken to ensure the realization of the right of citizens to have access to information. These include the creation of interactive sites of authorities (the implementation of a dialogue between authorities and citizens and organizations), the creation of virtual receptions (allows visitors to the portal to communicate with the heads of authorities in an interactive mode). In some regions, lists of categories of organizations and enterprises of the municipality are fixed, for which the creation and maintenance of information resources about their activities is mandatory, as well as lists of information that must be posted on sites on the Internet, broken down into groups depending on the category of organization and enterprise [ 44] .

Commenting on the basic law regulating relations in this area – the Federal Law “On providing access to information on the activities of state bodies and local governments”, it should be noted that he not only accepted all previous domestic experience, but also took into account many achievements of foreign practice .

In order to adequately assess the significance of this law, it is useful to recall that its adoption took place in conditions when the level of satisfaction of the population with information openness, for example, of the executive authorities of a constituent entity of the Russian Federation (percentage of the number of respondents), was not only low, but also had a negative trend.

When starting to analyze Federal Law No. 8-FZ, it is important to emphasize that it has its own conceptual apparatus . In particular, it defines concepts such as:

● information about the activities of state bodies and local self-government bodies – information (including documented) created within their powers by state bodies, their territorial bodies, local self-government bodies or organizations subordinate to state bodies, local self-government bodies (hereinafter referred to as subordinate organizations) , or received by the indicated bodies and organizations. Information on the activities of state bodies and local self-government bodies also includes laws and other regulatory legal acts, and information on the activities of local self-government bodies – municipal legal acts that establish the structure, powers, procedure for the formation and activities of these bodies and organizations, other information relating to their activities;

● information user – a citizen (individual), organization (legal entity), public association searching for information about the activities of state bodies and local governments. Information users are also state bodies, local self-government bodies that search for this information;

● request – an information user’s request, orally or in writing, including in the form of an electronic document, to a state body or local self-government body or its official to provide information about the activities of this body;

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