The Government of Mongolia has drafted a bill to amend the Law on State and Official Secrets. Since its adoption by Parliament in December 2016, the law has undergone six amendments. However, it has long been the subject of controversy due to overlapping terminology, vague definitions, and broad provisions that allow information beyond the official scope or list to be classified as state or official secrets. To better understand the purpose, significance, and implications of the proposed amendments, as well as the surrounding debates, we spoke with B.Purevsuren, Lawyer and Researcher at the Globe International Center.
The current law distinguishes between “state secrets” and “official secrets”. The core concept of the amendment drafted by the Cabinet Secretariat of the Government focuses on removing the notion of “official secrets”. Their impact assessment report also highlights the need to review the current practice of regulating relationships related to official secrets under the existing state secrecy laws. What is your view on this?
It is natural for every nation to have state secrets, but among the 193 countries registered with the United Nations, Mongolia is the only one that defines and treats “official secrets” as equivalent to state secrets in its legislation. About four years ago, a group of citizens petitioned the Constitutional Court, arguing that certain provisions of the law violated the Constitution. However, the court ruled that the law did not contravene the Constitution.
To recall, the first Law on State Secrets and the List of State Secrets was adopted in 1995 and later revised in 2004. In 2016, it was replaced by the current Law on State and Official Secrets, which remains in force. It is commendable that, after nine years, the government is now revisiting this issue, as the current law has created a unique situation that exists nowhere else in the world and one that undermines human rights.
As stipulated in the Constitution, citizens have the right to seek and receive information from the state and its institutions on matters not classified as secrets by law, and information may only be kept secret on lawful grounds. Unfortunately, this principle is not observed in practice. Mongolia currently has three separate laws—the Law on Personal Data Protection, the Law on State and Official Secrets, and the Law on Organization Secrets—yet it has become common for the heads of state organizations to arbitrarily classify information as “official secrets” based on personal discretion. This raises the question of whether such information is being kept secret according to legitimate legal grounds and necessity. Such practices directly violate fundamental human rights and international conventions.
Since 2019, several similar cases have been brought before the Constitutional Court, which has consistently ruled that the law does not violate the Constitution, but recommended that Parliament improve and refine the legal framework.
Before this law came into effect, information classified as state secrets could only be defined by law. Now, the government can classify information and determine its level of secrecy within its mandate. This year, the General Intelligence Agency reviewed 882 cases of official secrets across 59 government organizations and found that while 69 percent met legal criteria, 31 percent—or 274 cases—were classified without justification. This suggests that officials often classify information at their own discretion, restricting the public’s right to access information. Mongolia’s scores in international human rights and freedom indexes have also declined in recent years. What is your assessment of this situation?
In 2019, the Globe International Center established a research team of lawyers and journalists and published a report on analysis of laws and regulations restricting the right to information. According to the study, between 2004 and 2017, the number of documents classified as state secrets increased from 60 to 565 within just two years. Based on further projections, the number of official secrets could reach as high as 2,000.
From the data you mentioned, it can be inferred that one out of every three pieces of classified information was unjustifiably labeled as secret. Therefore, the government’s effort to address this issue through the proposed amendment is a step in the right direction, though it could and should have been done earlier.
The Law on Transparency of Public Information, adopted in December 2021, did not address the issue of official secrets at all. Yet, transparency and confidentiality are two sides of the same coin. Subsection 7.5 of that law clearly states that “Information that is required by law to be open and transparent shall not be classified as an official secret”.
In essence, “official secrets” refer to the internal secrets of government institutions. Currently, there are over 4,700 government organizations in Mongolia, and this number continues to grow, with projections suggesting it may reach between 6,000 and 7,000 over the next two decades. Each of these institutions has the potential to maintain its own official secrets. These organizations include local schools, kindergartens, and state-owned enterprises. The law defines official secrets as information protected by the state to prevent harm to the interests of certain sectors, government institutions, or other legal entities in the event of unauthorized disclosure or misuse. However, this definition is overly broad and leaves much room for arbitrary interpretation.
After reviewing the draft amendment, there seem to be some conceptual inconsistencies. Several phrases such as “...and official” or “...secrets and official” are to be deleted, and a number of provisions will be repealed. This means the concept of “official secrets” would be removed from the law entirely. The working group claims that the amendment will improve enforcement. However, Subsection 15.4 of the current law states that if the information prepared or received by an organization or official is not included in the specified list but needs to be kept confidential, the organization or official shall take measures to classify it and immediately submit a proposal to include it in the list of classified information. Doesn’t this provision still allow information outside the state secret list to be classified? Wouldn’t that make the reform merely superficial?
That clause indeed allows for the classification of information that should not be kept secret in the first place. When restricting the right to information, there are three essential principles that must be met: the information must relate to a legitimate interest protected by law; disclosure must be proven to cause serious harm to that interest through an objective assessment; and the potential harm from disclosure must outweigh the public’s right to know. Only when all these conditions are met can information be legitimately classified as secret. However, these criteria are not explicitly stated in the current law, which makes the scope of secrecy too flexible.
Information should, by default, be open and transparent. Mongolia’s score on the Corruption Perceptions Index has been steadily declining, and one contributing factor is the excessive and unjustified classification of information. Over the years, many major corruption scandals have been concealed behind the veil of secrecy—from the “Green Bus” and coal theft cases to the misuse of the SME fund, the Development Bank scandal, and opaque off-take agreements. In most instances, information only becomes public when it serves political purposes, revealing that such matters were never truly state secrets to begin with.
Could you clarify on this?
Yes. The government declassifies information. There are special procedures for declassifying information that was once secret. When the head of the executive branch or cabinet members decide to declassify such information, they often do so for political reasons. For that reason, the Law on State and Official Secrets is riddled with flaws and serious mistakes. If we adopted a democratic constitution in 1992 and successfully transitioned systems, we should have abandoned the old, secrecy-driven mindset. It is good that change is being discussed, but the proposals are not based on thorough research. One example is the clause you mentioned, Subsection 15.4.
In the revised Criminal Code that came into force in 2017, the offense of “illegally obtaining state secrets” was redefined. Under the old 2002 Criminal Code, a person who, by virtue of their post or duties, had access to documents, items, objects, or activities classified as state secrets and disclosed them would be criminally liable. Under such a rule, if I happened upon a document marked “secret” in my trash bin, I could be held responsible. Put another way, this is a practice that does not exist in democratic countries. In reality, even the procedures for handling state and official secrets are themselves secret. They ought to be public.
This country needs external systems to oversee the implementation of state secrecy, you say?
But the General Intelligence Agency under the Cabinet already provides oversight. It drafts proposals for the government on classifying information as state or official secrets, transferring secrecy status, declassifying information, setting or changing secrecy levels, and extending secrecy periods. Are there actually trained secrecy-protection officers who understand state secrets? There are specialized procedures for preserving and protecting secrets. Inspect those secrecy protection officers across state institutions and you will find ordinary documents mixed with materials stamped “secret”. There are many cases in which not only official secrets but even state secrets have been publicly posted. For example, all information related to the defense sector is supposed to be secret, yet at one point the Office of the President proudly published on its website details about the construction of the Tavantolgoi–Zuunbayan railway, including the number, locations, equipment, and deployment dates of military personnel working there. That information should have been secret. This is how we have become hopelessly entangled in our secrecy.
The Law on Transparency of Public Information stipulates that 67 types of information should be disclosed, but a closer look shows that only 37 percent of those items are actually being published. Laws can be made, amended, or weakened, but we have had instances where Mongolia’s foreign policy doctrines, once classified under the 2004 law, have appeared on the back pages of research reports issued by the Ministry of Foreign Affairs. All these examples underscore the many unresolved issues around secrecy classification and public transparency.
What should be the main criteria for delineating state secrets?
The vague and undefined scope of “official secrets” has too often allowed leaders to classify information at will. Changing a single phrase about “official secrets” will not perfect our regime of state secrecy or set it on the right course; the law must be revised as a whole. We need to reconsider definitions, scope, and limits, and decide—based on clear criteria—what to keep secret and what to disclose, while specifying that the authority to classify information should rest at the government level. Theft and fraud have repeatedly been carried out under the guise of “secrecy”; we should stop that. It is crucial to regulate state secrets with precise legislation and to make information as open as possible. Vague legal wording is where theft sneaks in.
The Washington Post–Pentagon controversy in 1971 drew worldwide attention and remains one of the most important rulings in the history of free expression, access to information, and state secrecy. Between 1946 and 1971, the U.S. Department of State had classified information about the Vietnam War. A source leaked this material to the New York Times and the Washington Post, and the issue went all the way to the Supreme Court. The central problem was that the government could not justify its reasons for classifying the information. The government argued that disclosure would harm diplomatic relations, public safety, or finances, but it could not substantiate those claims. The Supreme Court ruled in favor of the Washington Post, prioritizing the public’s right to know. Governments frequently declassify parts of information for political ends. Who disclosed the secret, and what the composition of the classified materials was, are not determined by clear, lawful procedures, and the rules for disclosure remain murky. For instance, some of the criteria listed in the first annex to Government Resolution No. 246 raise questions about their compatibility with international human rights standards. Although the volume of information has grown, few take initiative or challenge the problem because publicly available information might expose theft or fraud and therefore some prefer to protect their own interests.
Is this basically a matter of legal consciousness?
Yes. The old social habits remain deeply entrenched. There is no oversight committee for declassifying secret information; only the government declassifies and political processes swirl around that power. Those with greater access enjoy advantage, and behind that are many instances of theft and irregularities.
Do such abuses exist?
They certainly do. If we do not comprehensively reform the Law on State and Official Secrets, cosmetic fixes like these will achieve nothing.
