The growing use of applications such as Telegram -whose main feature is the short life of its messages- represents a challenge for the oversight of public administration and access to information.
Scholars of public administration, digital evidence and constitutional rights agreed on this, when approached by El Nuevo Día about the use of these new technologies to maintain communications between public officials.
This newspaper conducted a scan of the Telegram application and found that there are more than 100 people linked to government activity on the island -among elected officials, trust personnel and contractors for professional services- who use it regularly, which denotes a trend.
Applications such as Telegram and Signal not only send encrypted messages as a privacy mechanism, but also allow the self-destruction of texts on the cell phone, both for the person who sends them and the person who receives them, within the time the user sets.
Conversations through this tool could end up circumventing the right of access to public information, the consulted experts agreed, especially if it is used by government employees to handle administrative matters at the request of their superiors.
“There is a law that requires preservation and there is a crime that establishes that public documents cannot be destroyed”, stated attorney Rolando Emmanuelli Jiménez, digital evidence consultant for the Office of the Comptroller of Puerto Rico (OCPR) and former member of the permanent advisory committee on Rules of Evidence.
Approached by this newspaper, former general archivist and criminal justice professor Samuel Quiñones García explained that official communications are public documents regardless of the platform used. Under that analysis, sending messages that self-destruct could constitute a destruction of public documents, he emphasized.
“What makes a document public is not the platform nor the medium in which it is transmitted… It is the content. A photo or ‘screen shot’ is a public document if it has to do with an administrative act”, stressed Quiñones García, who has 30 years of experience handling public documents.
Since 1955, the government enacted the Public Documents Administration Act, which aimed to create a structure for the conservation and disposition of all documentation on public activity. Each agency must have an inventory of documents and refer any disposition request to the Public Documents Administration Program of the Institute of Puerto Rican Culture (ICP), according to regulation 4284 of the General Services Administration (ASG).
With the use of new technologies, the enforcement of that law becomes difficult due to the duplicity of platforms available to public employees and officials to maintain official communications or share documents, multiple sources consulted for this report agreed.
More than half a century after having set the policy on the administration of public documents, democratic governance has encountered new challenges for access to information with the emergence of more sophisticated technologies for electronic communication. This represents a challenge for the oversight of public administration decisions, especially when conducted from private property.
Emails are not kept
“One of the biggest problems we have are emails. Many instructions are given by email and they are not being kept. There is no archive. That is one of the things I understand (causes) that we are losing more information”, observed Ricardo Acosta Acosta, director of the Division of Data Analysis, Digital Forensics and Technological Development of the OCPR.
The manager of that division, José Candelas Vázquez, mentioned that “it is a common practice” for public officials to access their private email accounts from the computers assigned by the government. He indicated that, if those communications from private accounts serve as evidence of a crime, they are included as part of the audit.
Nevertheless, the Digital Forensics division of the OCPR has not yet seized private equipment within the total of 427 electronic media processed since its creation in 2011.
After the publication of this article, the OCPR clarified that it has seized seven private devices, although it initially said it had not.
For the OCPR's Systems Security manager, Esteban Santiago De Jesús, the use of personal devices by officials represents another of the office's challenges in its oversight role, since there is no public policy regulating it.
In anticipation of this controversy, the OCPR prepared a draft of standards for the use of personal equipment, particularly after the government suspended the purchase of cell phones with public funds as part of its declaration of fiscal emergency through Act 66 of 2014. Emmanuelli Jiménez, who participated in the drafting of that document, lamented that the State still lacks a public policy on the use of private cell phones, since this creates uncertainty and eliminates the expectation of privacy.
“They are turning the equipment into one in which the State can intervene to retrieve information or inquire about the activities of that employee in public administration. The absence of a clear regulation creates all these doubts”, the attorney expounded.
Comptroller Yesmín Valdivieso Galib agreed with Emmanuelli, and stated that “the moment you start using your own property to work, we can already step in and review it”.
Likewise, constitutional attorney Carlos Ramos González said that using private property for public purposes is not enough to circumvent the definition of a public document.
“Imagine what that lends itself to. Especially in these times when there is a shortage of materials in the government. It lends itself, of course, to leaving exclusively in the hands of that official what is or is not of public interest”, he observed.
Quiñones García, who is also a member of the Advisory Committee of the General Archive, opined that if official communications disappear through these technologies, it could constitute destruction of public documents to the extent that they prohibit the review of administrative acts and possibly circumvent the laws enacted to give uniformity to public administration.
“You cannot process administrative acts except through public documents. Otherwise, it lends itself to caprice, arbitrariness, everything that the Uniform Administrative Procedure Act is supposed to prohibit”, he stressed. “Access to the administrative act -as content and as process- is fundamental in a democratic system because it is what distinguishes it from an authoritarian system”, added the doctor in Administrative Law.
Some documents on this page are saved in PDF format.
To view these documents, you must have the following free program installed.
