Ensuring Right to Information (MN0049)

Statement of public problem 1/ The Law on State and Official Secrets has turned into an instrument of malpractices such as information concealment under ‘state secret’ and ‘official secret’ pretexts, reluctance to provide information to citizens and cover-up of public office malfeasance. There is an urgent need to improve the existing legislation so that it protects the public’s ’ right to know, establishes the highest degree of transparency of government information, allows secrecy of information only for public interest purposes and prohibits an agency from discretionary classification of its information.. 2/ The pandemic is being accompanied by an ‘infodemic’, a new phenomenon of a spread of false information that aggravates the damage inflicted on people especially in terms of increasing denial of vaccination. People living in remote areas or isolated groups, and low income or low media literacy persons have been affected particularly heavily as demonstrated by the experience of recent years. On the other hand, there have been many incidents where individuals who expressed their views and criticism of government services in the social media were gven warnings, fined or detained, and media workers were denied the right to seek, receive and impart information through access restrictions and censorship. Attempts to control media coverage through undue influence and pressure up to threats by local authorities have been reported as well. Hence, it is important to upgrade communication strategies for emergency situations and to increase the availability of public information.

Commitment definition Urgently strengthen the legal framework to end the malpractice of withholding information from the public under the guise of “secret” and to ensure the exercise of citizens’ right to know and to timely receive information in appropriate formats during pandemics and other such emergency situations. In order to ensure public access to information other than that the government and its institutions are legally bound to protect, the existing legislation shall be aligned with international legal norms, in particular, the letter and spirit of Article 19 of the International Covenant on Civil and Politicial Rights. 1/ Strengthen Mongolia’s Law on Information Transparency and Right to Information and Law on State and Official Secrets by allowing denial of access to information and its classification as state or official secret only when and where the UN Human Rights Commission’s all three tests for permissible limitations of the right to information apply simultaneously: a/ the given information is pertinent to the interests defined by law; b/ materiality of damages entailed by information disclosure is mandatorily assessed and presented as a proof of the limitation of the right to information; and c/ the said material damage(s) take precedence over the public interest of the freedom of information. Amend the Law on State and Official Secrets by anulling Article 13.2 which states that “public organizations and other legal entities shall develop their lists of pertinent sectoral and agency information subject to classification as state secret[…], obtain clearance by the intelligence agency and submit to the Government for approval”, and Article 14.1 stating “The list of information to be classified as official secret shall be compiled by the relevant authority and approved by the decisions of the Member of the Cabinet in charge of the portfolio and the Chief Executive of the organization”, and adopt a separate law on the identification and registration procedure for state and official secrets. 2/ Take action to evaluate the application and improve the implementation thereof of the Law on Legislation, Law on Public Hearing and General Administrative Law of Mongolia that directly bear on the transparency of government processes and the right of people to participation.

Contribution to addressing public problem 1/ Improvement of Mongolia’s ranking in international independent reports on information freedom. Special care will be taken of the following aspects in the implementation of the commitment: • The draft law undergoes vigorous and broadly-based public discussion which is organized to meet the principle of meaningful participation; • The Parliament duly monitorsand reviews the implementation of the law; • Training and consultative activities build the capacity of relevant actors and stakeholders for effective implementation and monitoring; • Civil society engagement in the aforementioned activities is ensured at all stages and times; 2/ A system of multi-stakeholder partnership is fostered to promote high quality communication and information flows, and to strenghten mutual trust between citizens, the media and government. The increased availability of and access to public informaton will importantly factor in the fulfilment of the right to information of vulnerable population groups.

Relevance to OGP values ● Transparency Better exercise of the right to information by opening up more data and information to the public, improving the quality of the existing and protecting public access to information. ● Public engagement Increased opportunities and capacites of the public to be informed of and influence government decision-making. ● Government accountability Enhanced openness and availability of information assures public accountability of government and civil servants.

Policy coherence • Relevance to the SDGs: Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and develop effective, accountable, and inclusive institutions at all levels; its Target 16.5. (Substantially reduce corruption and bribery in all their forms); Target 16.6. (Develop effective, accountable, and inclusive institutions at all levels); Target 16.7 (ensure responsive, inclusive, participatory, and representative decision making at all levels); Target 16.10 (Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements); • In 2020, Mongolia submitted the Third National SDG Report and received recommendations from UN member-countries on the freedom of expression including the following: - protect freedom of expression by revoking Article 6.21 of the Law on Infringements - 70 (UK); Though the said legal provision has been revoked, Section 13.14 added to the Criminal Code in 2020 poses a risk to the freedoms of expression and information if applied wrongfully. • Parliament-approved policy documents contain provisions on the right to information. In particular, “The National Security Concept of Mongolia” (Parliament Resolution 48 of 15 July 2010) has Provision 3.6.4.1 saying “Freedom to information shall be sustained by protecting the right to seek, receive, obtain and disseminate information not prohibited by law, and by providing free access to information infrastructure, components and services”; and Provision 3.6.4.5 stating “ Create a favorable environment for mass media outlets to obtain and publish information not prohibited by law”. Furthermore, Provision 2.1.8 of the “National Anti-Corruption Program” (Parliament Resolution 51 of 2016) states “ensure implementation of the law guaranteeing citizen’s right to information”.

Target definition End the malpractice of denying information, or giving incomplete information, or avoiding giving information by government institutions or public officials under the pretext of secrecy. The legislation on classified information will be aligned with the Constitution of Mongolia and her international treaties. To ensure access of special target population groups to information in emergency situations, the knowledge of communication strategies and communication skills of the following parties will be improved: - Public sector officials and specialists (National Emergency Commission/NEC, National Emergency Management Agency/NEMA, Ministry of Health/MoH, Natonal Center for Communicable Diseases/NCCD, National Center for Public Health/NPHC etc.) - Mass media professonals, other representatives - Broadly networked civil society/NGO entities working closely with target groups - Local government managers responsible for target groups, local decision-makers, representatives of sectors of priority relevance such as health and disaster management; - Social media influencers.

Follow-up actions: ● Public promotion and advocacy of the revised legislation; ● Monitoring and evaluation of the implementation of the law, public reporting thereof; ● Continuous strengthening of the mechanisms providing citizens and journalists with unimpeded access to public interest information.

Milestones: Start date: End date: Align the State and Official Secrets Registry with information transparency objectives and norms 2021.11 2023.09 Strengthen information transparency in conditions of pandemic/public emergency 2021.11 2023.09 Reflect the constitutional amendment to the effect “Citizens, within their right to live in a healthy and safe environment, shall have the right to know the environmental impacts of the use of mineral resources” in the relevant legislation. 2021.11 2023.09 Undertake evaluations of the effects of the Law on Legislation, Law on Public Hearing and the General Administrative Law that contain transparency in decision-making and citizens participation norms, and develop an evidencebased proposal for their amendment. 2021.11 2023.06 Support initiatives promoting citizen participation in and oversight of corruption control and prevention activities, strengthen the independent status of the Public Council (under the IAAC), further improve the legal framework; 2021.11 2023.06

Action Plan Review

Commitment 2. Access to Government Information

Commitment Cluster 2 and 8: Legislation on Freedom of Information and the Press

For a complete description of the commitments included in this cluster, see Commitments 2 and 8 in Mongolia’s 2021-2023 Action Plan.

Context and Objectives:

This cluster of commitments intends to strengthen freedom of information and improve the press’ operational environment in Mongolia, building on a commitment in Mongolia’s second action plan, which supported efforts to pass the Law on Broadcasting adopted in 2019. [13] Commitment 8 aims to protect source anonymity for journalists through amendments to the Law on Whistleblower Legal Status and the Freedom of the Press Law. To improve access to information, a milestone repeated in both Commitments 2 and 8 plans for an amendment to the Law on State and Official Secrets to establish a legislative procedure for defining the state secrets lists, rather than leaving state secrets to the discretion of cabinet resolutions or government agency decisions.

Potential for Results: Substantial

The Democracy Education Center considers this initiative to have substantial potential to achieve meaningful impact on freedom of the press. [14] According to Reporters Without Borders, the Mongolian media’s watchdog role has been limited to date by issues with government transparency and media legislation. [15]

Source anonymity is a key concern for journalists in Mongolia. The Public Radio and Television Management Law is the only law that protects source anonymity. In other sectors of journalism, these legal protections are absent. In response to critical reporting, investigative journalists are sometimes compelled to reveal the identity of their sources. According to the Globe International Center, a Mongolian CSO, coercion to disclose sources was common in 2020. For example, a journalist from the Arkhangai province received a letter from the province’s police department urgently requesting collaboration in disclosing information on officers that had been sources for an article. Likewise, Zarig.mn received a similar letter from the national police agency. [16] Amendments to the Law on Whistleblower Legal Status and the Freedom of the Press Law could widen protection of source anonymity, filling an important legislative gap. Reporters Without Borders highlights protection of sources as an important area for media reform. [17]

A survey of 81 Mongolian journalists or media workers also revealed that access to information was considered an obstacle to free media by 95% of respondents. Respondents described a culture of silence in the government and civil service bureaucracy. Government bodies that refused to provide information to the journalists reportedly often saw the information as falling into the categories of private secrets, organizational secrets, or state secrets. [18] Amendment to the Law on State and Official Secrets, including annulment of Articles 13.2 and 14.1, could open access to government information by limiting the discretion of cabinet resolutions or government agency decisions to withhold information. It is intended to narrow permissible limitations on the right to information to scenarios in which information is pertinent to the interests defined by law, assessment finds material damages would be caused by information disclosure, and these damages take precedence over the public interest of freedom of information.

Other milestones included in Commitment 2 have modest potential for results, and some are more relevant to other commitments. The commitment does not offer sufficient clarity on planned citizen participation in anti-corruption efforts, an initiative that is not aligned with the commitment’s overall objective. It also does not offer details on the pandemic related information transparency measures or legislative amendments on citizens’ right to know about environmental impact of mineral resource consumption. One of its milestones repeats milestones in Commitment 5 (which aim to evaluate the Law on Legislation, the Law on Public Hearing, and the General Administrative Law) but does not plan for implementing the resulting recommendations in legislative reforms. The milestones’ lack of coherence and verifiability gaps limit the potential impact of this commitment.

Opportunities, challenges, and recommendations during implementation

To achieve legislative amendments on media freedoms, this initiative can leverage high-level political backing and engagement of the Mongolian Press Council and the Press Institute of Mongolia, organizations new to Mongolia’s open government process. [19] However, in terms of efficacy of planned legislative amendments, existing media freedom legislation has suffered from weak implementation, [20] which could continue to pose a challenge. As such, the IRM recommends the following:

In future action plans, consolidate commitments with overlapping milestones into a single commitment to streamline coordination and planning. Ensure that only milestones which contribute to the commitment objective are included in each commitment.

Results Report

Commitment 2. Access to government information

This commitment was clustered as: Legislation on Freedom of Information and the Press (Commitments 2 and 8)

Implementing Agency: Ministry of Justice and Home Affairs

Context and Objectives

Aimed at limiting the discretion of government agency decisions to withhold information under the Law on State and Official Secrets, this commitment set out to evaluate the impact of the Laws on Information Transparency, Legislation, Public Hearing, and General Administration and propose legal amendments. Prior to the implementation period in 2020, Freedom House and Mongolian CSO Globe International Center reported inconsistent implementation and enforcement of Mongolian laws and regulations on government transparency—noting that government bodies who refused to provide information often invoked the Law on Information Transparency’s exemptions and the Law on State and Official Secrets. [8] By opening access to government information, the commitment intended to improve public oversight and participation in governance, especially related to the Independent Authority Against Corruption’s efforts.

Early Results: Moderate

This commitment was substantially completed. It passed three of its intended legal amendments. These amendments had moderate early results on opening access to government information.

Parliament passed an amendment to the Law on Information Transparency in June 2022. [9] The amendment added 68 new categories of public information that must be disclosed by the government, including information on underground resources, special permits, beneficial owners, environmental impact, and water usage, as well as government plans and reports—including drafts of government regulations. However, it did not clarify the definition of "state secrets" in Article 10 on closed information. Consequently, this continues to be regulated by the Law on Official State Secrets, a law the commitment did not amend by the end of the implementation period.

According to the National Committee on Human Rights, improved access to drafts of government regulations has facilitated civic engagement—as observed in the development of the uih.mn/petition online petition tool. While this was not a milestone of the commitment, it illustrates the amended Law on Information Transparency’s results. [10] For example, following the parliament’s decision to pass the Law on the Protection of Human Rights on Social Networks on 20 January 2023, public access to the draft law allowed for a petition demanding President Ukhnaagiin Khurelsukh to veto the law, gathering 7,353 signatures. [11] Reporters Without Borders called the law a "threat to journalism and the public’s right to information." [12] On 30 January 2023, the president announced that he had officially vetoed the law. [13]

Regarding the Law on Legislation, the parliament passed amendments in May 2023. [14] Some noteworthy changes include a minimum 15-day public comment period to collect input from citizens (Article 38.3) and a mandate for the government agency responsible for a draft bill to provide a written overview of all considered proposals on their official website within 30 days of the conclusion of the public comment period (Article 38.7). [15] These strengthened earlier provisions of the amended Public Hearing Law, which were passed in December 2021 and June 2022. [16] The amendments included detailed provisions on the government’s responsibility to publish the schedule of public hearings with adequate notice (Article 21), to provide sufficient information to participants of public hearings (Article 15), and to make minutes of public hearings available within three days of the hearing (Article 19). [17] In practice, while these amendments provide a stronger legal basis for a stronger information disclosure regime, a civil society representative underlined that the government is still not proactively releasing this information. [18]

This commitment also made some progress on creating public participation opportunities in government information dissemination. Against the backdrop of the COVID-19 pandemic, the Media Council of Mongolia organized public events discussing press freedom and ethics. As government, civil society, and media actors at times disagree on approaches to public information disclosure, the council piloted a program to train citizens across several districts on handling the dissemination of information in crisis situations. A plan to institutionalize the program within the National Emergency Management Agency was developed but not realized by the end of the implementation period. [19]

Other commitment activities were not fully completed as planned. The Independent Authority Against Corruption planned to promote citizen participation and oversight of corruption through a public council in the Anti-Corruption National Program, which was approved by the parliament in June 2023, but was not established by the end of the implementation period. [20] Planned promotion activities had not been conducted due to the national program’s finalization in the later stage of the implementation period.

Overall, this commitment progressed access to government information, but certain limitations remain. The commitment’s amendments widened the categories of public information subject to government disclosure but did not address exemptions in the Law on Official State Secrets. In 2023, Freedom House reported that implementation and enforcement remained inconsistent. [21] A survey by the Globe International Center found that one of the most common problems faced by Mongolian journalists continued to be government refusal to provide information. [22] Separately, the Ministry of Justice and Home Affairs noted that several online government information portals improved transparency, although these were not directly related to the commitment. [23]

Looking Ahead

Improving Mongolia’s legal environment for information transparency requires a multi-pronged approach—this commitment evidences the need to update multiple laws to enact any thorough reforms. Reflecting on the successful examples of citizens demanding a public hearing on government plans through online petitions, future efforts can focus on supporting the uptake and use of public information by citizens at large—as opposed to exclusively CSO representatives.

In addition, lack of clear and consistent parameters for "state secrets" remains a major loophole in the information transparency legal framework. Going forward, measures could be taken to amend the Law on Official State Secrets and establish a mechanism for citizens to challenge government decisions to close certain information. In Indonesia, for example, the Public Information Disclosure Law mandates that all government agencies appoint a designated public information officer and provide citizens with a Public Information List, a clear overview of all information that is open by default. [24]