By: Héctor José García Santiago, Director of the Government and ICT Observatory of the Pontifical Xavierian University. Chairman of Camerfirma Colombia. www.camerfirma.co
Law 2080/2021, which reforms the Code of Administrative Procedure and Administrative Litigation (CPACA) has been issued recently. Specifically, it modifies matters relating to the integration of ICT into Public Administration with the aim of achieving a more efficient and streamlined State, as well as establishing a much more proactive and innovative citizenship in an environment of digital trust.
The new law specifies that when the use of digital channels is enabled for communication between bodies, they are required to use those channels. In other words, a new appeal is being made to promote the use of ICT for the exchange of information between governmental organisations. In addition, the law says that the ICT Ministry is in charge of defining and regulating the mandatory use of electronic means in public administration procedures and formalities.
We must remember that this ministry, through Decree 620/2020, has laid down the guidelines for public bodies to improve their relationship with citizens through digital media. To this end, it published the Guidelines for Digital Citizen Services and the Guide for linking and using Digital Citizen Services.
The Electronic Office
This is the official electronic address of ownership, administration and management of each competent authority. One matter reiterated in the new law is that every authority must have at least one electronic address, a requirement already stipulated in Law 1437/2011. However, despite the fact that certain bodies already have electronic offices, only recently has the Ministry of ICT issued guidelines with regard to, for instance, their integration within the shared State Office, gov.co.
Additionally, the new law specifies that the shared Electronic Office is to be the Single Portal of the Colombian State, through which citizens are to access available digital procedures, services and formalities. This does not mean that there can’t be other shared offices; for instance, a Ministry may be the shared office for all its related bodies, but there will always be a single office at the State level: gov.co.
Digital user, free of charge
It is specified that entities and in general all those organisations required to implement Digital Citizen Services must provide the user (citizen or businessperson) with a digital registration service, free of charge, just like any in-person procedure. In this regard, special care must be taken with the identity validation process during registration, with full identification of the person, regardless of whether it refers to a natural or legal person.
Thus, and in compliance with the digital authentication service contained in Decree Law 2106/2019 and Decree 620/2020, the validation process must be carried out through the use of biometric technology, digital identification and digital signature certificates. Namely, high and very high levels of assurance that provide full proof of the person carrying out the registration. This digital registration process may be linked to the Electronic Office of the entity.
The regulations reiterate the possibility of issuing notifications about decisions of the public administration (administrative acts) through electronic means (this matter was already included in Law 1437/2011 and the General Process Code). What’s new is that digital notifications are to be carried out through the service provided by the Electronic Office of the relevant authority.
The person being notified will be able to access the notification document either through the electronic office of the body issuing it or through the Colombian State Shared Office, gov.co. In either case, the public body must certify the user’s access to the notification. Notifications about administrative acts may also be issued to the user’s email address, upon prior acceptance by the latter. In accordance with article 291 of the CGP (General Process Code), when the email address of the person to be notified is known, the communication may be sent by the Secretary or the relevant party by email, a detail that was reiterated by Decree 806/2020.
The notification will be considered delivered from the date and time that the user accesses the administrative act, and the administration must certify this date and time. It remains clear that the Electronic Office run by entities is required to record user “access” to the act that is the object of the notification and, consequently, the platform must allow for the certification of such access. However, when the notification is delivered by email, this must be documented, which can only be achieved through the use of certified emails.
The new law maintains the definition of what constitutes an electronic file, namely, a set of electronic documents corresponding to an administrative procedure. In addition, it emphasises the importance of ensuring the authenticity, integrity and availability of the file.
However, the new provisions eliminate the requirement of a digitally signed electronic index, which used to be mandatory to ensure file integrity. In this regard, it is important to mention that the Electronic Document and Electronic File Guidelines issued by the ICT Ministry and the General Archive of the Nation indicate that the “electronic index must be digitally signed at the closing of the file, without prejudice to the information security guarantees that public bodies are required to adopt during the processing stage.”
Receipt of electronic documents
To receive electronic documents as part of an administrative action, the regulations indicate that the authorities must have an electronic record of documents (this was already established in Law 1437/2011). The current changes to this are the following:
- To carry out strict monitoring and listing of electronic documents submitted and received in the information systems through the various channels available, including the date and time of receipt. Monitoring is required not only for messages received but also for those sent.
- To ensure that information systems have sufficient capacity and suitable measures in place for data protection and digital security in general. This refers both to the organisation’s email account and all other information systems for communications.
- To issue and send a message acknowledging receipt or dispatch of communications, indicating the date and assigned file number. This includes both incoming and outgoing communications, which was not previously a requirement.
The use of ICT in public administration depends on the implementation of the Digital Government Policy and, specifically, on the transversal axis: Digital Citizen Services. Regulations already enable the use of ICT, and now we must promote their widespread use. ICT tools in all judicial processes are also governed by Decree 620/2020, which must be implemented in line with the guidelines indicated by the Superior Council of the Judiciary in the digital transformation plan for the sector, which is expected to yield visible results this year.