Informatising State Control: Searching for a Vector of Administrative Regulation

Alimpeev Daniil Romanovich ORCID: 0000-0002-4010-7609 Postgraduate student; Department of Legal Support of State and Municipal Service; Russian Presidential Academy of National Economy and Public Administration Analyst; Institute of State and Municipal Management; National Research University Higher School of Economics 11 Myasnitskaya str., office 524, Moscow, 101000, Russia alimpeev17@gmail.com

In April 2023, speaking to the participants of the Znanie marathon, Russian Prime Minister Mikhail Mishustin announced the country's transition to a new management model based on the use of objective data in making socio-economic decisions (Rossiyskaya Gazeta No. 9037 of March 27, 2023). Previously, during a long period of informatization of state and municipal administration, new technological solutions were used rather to automate internal management processes of departments, as well as optimize the provision of public services and the issuance of permits, and the development of industry services ^{[8, pp. 65-66]}. Decision-making remained a space for subjective assessment of information received by executive authorities in the course of law enforcement practice, or as a result of research and applied work by Russian analytical centers.

Now, the information necessary for decision-making becomes the subject of automatic calculation from databases aggregated by the state through systematic monitoring of the economy. With the help of information technologies that allow for more accurate forecasting based on arrays of information, the Government plans to successfully respond to external challenges characteristic of the emergence of a pool of unfriendly countries and the continuation of sanctions pressure on the Russian economy. One of the successful examples of such a policy can already be considered the regulation of the financial and monetary sphere within the country, adapted in time to the technological features of the national payment infrastructure ^{[1, pp. 53-57]}.

However, decision-making within the framework of state economic management is always associated with subsequent control (supervision) of compliance with new mandatory requirements. By transferring decision-making to an automatic plane during the accelerated informatization process, it is necessary to fully use technologies that allow monitoring their execution and minimize the risks of violating the rights of controlled persons ^{[5, p. 217]}. For example, the constant operation of automatic sensors, video surveillance systems, software tools for analyzing information on the Internet or in corporate information systems of controlled persons can significantly increase the density of control (supervision) and its depth. At the same time, the costs of entrepreneurs and citizens should also decrease, because information technologies allow for control (supervision) in an inconspicuous mode, avoiding field events and changing towards client-centricity "models of interaction between a powerful entity and a controlled (supervised) person" ^{[9, p. 120]}.

The new model of state control over the economy required legal fixation. Therefore, when adopting Federal Law No. 248-FZ of July 31, 2020 "On State Control (Supervision) and Municipal Control in the Russian Federation", the legislator introduced the term "information support for state control (supervision), municipal control" into domestic regulation, without giving it a clear definition, but indicating that in order to State information systems are being created to implement information support, the core of which is the Unified Register of Types of Control (EPER) and the Unified Register of Control (Supervisory) Measures (ERKNM). The satellite Law, adopted together with the main act (Federal Law No. 247-FZ dated July 31, 2020 "On Mandatory Requirements in the Russian Federation"), fixed the creation of another key information system – the Unified Register of Mandatory Requirements (EROT).

For the first time in the history of domestic control (supervision), not just separate information systems initiated by the departments themselves were launched, but information aggregators independent of control (supervisory) bodies supervised by the Prosecutor General's Office of the Russian Federation and the Ministry of Economic Development of Russia. The legal principles of the functioning of these systems suggest that in the territory of the country no control (supervisory) event can take place without being recorded in the relevant register, and without reference to a violation, actual or suspected, of a specific mandatory requirement entered in the relevant register. It is obvious that the new rules for information support of control and supervisory activities have led to positive changes for citizens and organizations, increasing the standard of access to information about government activities and reducing the burden on entrepreneurs. However, the reform, as the regulator himself emphasizes, has not been completed.

Thus, the Concept of improving control (supervisory) activities until 2026, adopted by Decree of the Government of the Russian Federation No. 3745-r dated December 21, 2023 (hereinafter referred to as the Concept–2026), suggests that it is necessary to continue "the development of information systems that ensure the digitalization of basic processes, as well as to form a unified data model in the field of control." The regulator actually confirms that the further development of information support for control (supervisory) activities will go towards the development of a common administrative and legal mechanism for the informatization of control (supervision).

At the same time, the conclusion about the need for data centralization is not obvious in itself, especially in the context of the federal structure of the Russian state, which assumes the absence of subordination between control (supervisory) bodies of different levels. The Government of the Russian Federation came to it based on the results of two historical stages of the formation of the state information policy, which give an idea of the contours of future legal regulation in the field of state control (supervision).

Stage 1. Formation of the information policy of state control (supervision)

In the 1990s, in Russia, in parallel with the massive spread of new information technologies, the foundations of their regulation were being established. Having abandoned centralized planning and switched to a market economy, the state shifted its interest from attempts to automate the management of economic processes typical of the late Gosplan ^[13] to solving many point problems characteristic of the economy of the transition period. As a result, in less than ten years, according to Professor N.N. Kovaleva, more than 200 laws, federal and regional, regulating information relations have been adopted ^{[11, p. 20]}.

A significant part of them concerned guarantees of the rights of citizens and organizations to access government data, including on forms of control (supervision) over economic entities. It was assumed, as L.K. Tereshchenko rightly noted, that "public control would increase the responsibility of state and municipal employees for their activities, make the fight against corruption, embezzlement, and abuse of office more effective" ^{[16, p. 46]}. The presence of many gaps in the "delivery" of information, which allowed, for example, on-site inspections of enterprises without proper notification, remained a significant challenge to economic reforms.

This is largely why the Decree of the President of the Russian Federation No. 170 dated January 20, 1994 "On the fundamentals of State policy in the field of informatization" was adopted, establishing general principles for the development of this process for all areas of government activity. It was assumed that the policy in the field of informatization, as in the Soviet years, would gravitate towards centralization and ensuring the unity of data. Among the main postulates stood out:

Formation of state information systems (GIS), taking into account their compatibility with each other and the need to create a unified information space in Russia;

Ø formation and development of a unified state policy in the information sphere;

Ø Creation and protection of state information resources;

Ø Ensuring information security in the field of public and municipal administration;

- Ensuring uniform state standards in the information sphere.

This approach generally reflected the views of the administrative and legal doctrine of the time. One of the key experts in the field of information law, I.L. Bachilo, noted that the formation of state information policy should go through several stages, and Russia in most areas is only at the first of them ^{[4, pp. 698-700]}.

Firstly, scientific and development research is required first, conceptualizing information relations and allowing us to understand the boundaries of current technological development. The research of cybernetics and computer science conducted back in the Soviet years, as well as the philosophical understanding of their role in the life of society, allowed Russia to build on a solid foundation. Secondly, the state should bring conceptual ideas into the legal plane, using its own normative tools that set the main directions of information policy. Adopting, among other things, the Concept of the Formation and Development of the unified information space of Russia, approved by Decision No. Pr-1694 of November 23, 1995, the President of the Russian Federation normalized the theoretical ideas of informatization for the state apparatus. Thirdly, it is critically important, based on strategic documents, to adopt specific laws aimed at regulating information legal relations. They, in turn, can be clarified by subordinate regulatory acts and financially supported by targeted programs or government projects, however, without specifying conceptual provisions, regulation will not have full force.

Moreover, in order to form a unified state information policy in the field of control (supervision), it is impossible to start from the approach peculiar to common law countries and involving significant administrative discretion of the law enforcement officer, the advantages of which are devoted to the work of D.I. Zaitsev ^{[7, pp. 80-81]}. When researching foreign experience, it is necessary to take into account historical experience and the legal context, otherwise it turns out that in control (supervisory) activities, each agency will work according to its own standards, which do not allow citizens to get proper access to information.

Largely following the logic of the development of the state information policy proposed by I.L. Bachilo, the Decree of the Government of the Russian Federation dated January 28, 2002 No. 65 adopted the Federal Target Program (FTP) "Electronic Russia (2002-2010)", which, according to some researchers, became an occasion "to improve public service and improve living standards" ^[18].

She was responsible for the implementation of the concept of "e-government", which is a copy of the well-established Western concept of "e-government", derived from the ideas of the school of public administration "new public management". Although, as Professor M.A. Fedotov notes, there are a wide variety of interpretations of this term – for example, we can talk about a system of interaction between the state and society based on the use of modern information delivery technologies, facilitating the provision of public services and eliminating administrative barriers, and the Russian interpretation of the concept does not require recourse to Western patterns at all ^[19]. There are especially many administrative barriers within the framework of state control (supervision), both in terms of outdated mandatory requirements and in terms of insufficiently digitized forms of control, involving, for example, a live visit by an inspector instead of a remote examination via a mobile application ^[6].

Anyway, the Federal Target Program "Electronic Russia" assumed the gradual introduction of the principles of e-government, not only on paper, but also in practice by creating an extensive infrastructure. It was assumed that at the first stage, a traditional scientific study would be conducted related to the analysis of existing regulatory legal acts, the study of international experience, and the assessment of the effectiveness of spending budget funds on the provision of public services, the results of which would identify key problems and formulate proposals to eliminate them, taking into account the domestic specifics of management practices.

Then, guided by the results obtained, the responsible executive authorities prepared changes in the regulatory framework. In parallel, work was underway to create a unified information infrastructure for federal government agencies, create an electronic public procurement portal, and optimize inefficient services. The issue of transferring control (supervision) to electronic form has not yet been raised, focusing on the general organizational processes of the departments. It was assumed that the overall work on infrastructure development would allow, at the extreme stage of the implementation of the Federal Target Program, to achieve widespread penetration of information technologies into society.

As is the case with many other government projects, it is difficult to assess the final effect of the implementation of the Federal target program "Electronic Russia". On the one hand, even the UN Department of Economic and Social Development, which is mainly under the control of unfriendly countries, defines the Russian Federation as one of the leaders in terms of electronic interaction between the state and citizens in the provision of services ^{[21, p. 240]}. On the other hand, the contribution of a specific program to achieving such an impressive indicator is not clear, especially since after the end of its operation, 11 more federal programs and subprograms aimed at developing informatization of public administration and state control (supervision) were adopted ^{[11, p. 25]}. It is hardly possible to fully agree with the conclusions of the doctrine, which testify to the extremely positive impact of one, albeit an important program.

In the same time period, other documents were adopted that laid the foundation for the current state information policy of Russia. So, we are talking about: a) The concept of the formation of e-government in the Russian Federation until 2010, approved by Decree of the Government of the Russian Federation No. 632–r dated May 6, 2008, is notable for supporting remote access to government data for citizens, creating multifunctional public service centers, converting them to electronic format, expanding interdepartmental interaction and development electronic confirmation systems-signatures within the framework of document management; b) The concept of using information technologies in the activities of federal government bodies until 2010, approved by Decree of the Government of the Russian Federation No. 1244-r dated September 27, 2004, largely repeats the Decree of the President of the Russian Federation of 1994, but complements it with responses to new challenges, in particular in matters of the use of intellectual property, ensuring a more harmonious and centralized creation of information infrastructure, the use of technologies for socio-economic development, etc.; c) The Concept of administrative Reform in the Russian Federation in 2006-2010, approved by Decree of the Government of the Russian Federation dated October 25, 2005 No. 1789-r, is more general, but also contains provisions regulating the information sphere, among other things, through electronic public procurement and the introduction of mandatory anti-corruption expertise carried out in electronic form.

The measures taken to create an electronic government, supporting the opinion of I.L. Bachilo, should be considered as a significant impetus to the development of the information society ^[3]. However, they proved to be not inconclusive for the sphere of state control (supervision). The methods and forms of its implementation at this stage remained largely analog, which did not prevent the creation in 2014 of a Unified register of inspections – an information system containing information about the processes of work of all control bodies, and in fact had no analogues in the post-Soviet space. It is no coincidence that the launch of the system was announced by the President of Russia in a Message to the Federal Assembly dated December 4, 2014: "every audit should become public. Next year, a special register is being launched for this purpose — with information about which body initiated the audit and for what purpose, and what results were obtained. This will allow us to cut off unmotivated and, even worse, "custom-made" visits by supervisors."

The parallel implementation of "smart" state control (supervision), expressed in the transfer of inspections to a risk-oriented approach, which assumes control measures only if a significant probability of socially dangerous consequences is detected if they are not carried out, has changed the very philosophy of state control. As a result, by 2019, researchers had already recorded "a positive growth trend in the proportion of citizens assessing the level of protection of values important to them" ^{[20, p. 87]}, despite a decrease in the number of interactions between the population and the state under the conditions of "supervisory holidays", better known as a moratorium on routine inspections.

Stage 2. Transition to regulation of the digital transformation of state control (supervision)

By Decree of the Government of the Russian Federation No. 637-r dated March 16, 2024 "On Approval of the Strategic direction in the field of digital transformation of public administration", the Strategy for Digital Transformation of Public Administration (hereinafter referred to as the Strategy of the Central Bank) was adopted, partially voiced by the Chairman of the Government of the Russian Federation in the previously mentioned keynote speech. It can be said that it fully meets the expectations of the legal doctrine, since it allows to reconcile digital technologies and law, according to the accurate observation of Yu.A. Tikhomirov ^[17], marking the boundaries of permissible interference by the regulator and existing risks, as well as responding to challenges in the field of information security of government data that have been bothering specialists for years ^{[12, p. 121]}. For the first time, the principles of digitalization, formulated back in the Order of the Ministry of Finance of the Russian Federation No. 428 dated August 1, 2018, which had rather a general methodological significance, receive a normative framework and development.

In particular, the CT Strategy notes that the target state of digital transformation presupposes a complete transition of all public authorities, both the Russian Federation and the subjects of the Russian Federation, to a single information space that meets common information security standards and assumes authorization of citizens and organizations through a single window, which is probably considered a single identification and authentication system (ESIA) portal of Public Services.

In addition, noting the fact that "more than 90 information systems of 30 federal executive authorities are operating on a state-owned unified cloud platform," the CT Strategy emphasizes the further development of this area through its institutionalization and the creation of a specialized "project office." The logic is clear – cloud technologies will play an increasingly important role in digital transformation, contributing to the creation of convenient public services, effective and efficient state control (supervision). Created in 2018 by Decree of the Government of the Russian Federation No. 482 dated April 21, 2018, GIS "Standard cloud solution for automation of control (supervisory) activities", on the basis of which most of the federal and regional control and supervisory authorities work today, becomes the core for other information systems containing cloud data.

The CT Strategy also points out the risks arising from the extremely high speed of information technology development, as well as the peculiarities of existing legal regulation. Resource constraints (primarily budgetary), regulatory and organizational obstacles that arise during digital transformation, often unexpectedly for reformers, are noted. For example, Article 3 of the Law of Moscow dated May 5, 1999 No. 17 "On the protection of green spaces" provides that the felling of trees and shrubs in the city can only be carried out on the basis of a special permit (felling ticket). It, in turn, is issued "on a form with a degree of protection." When the Government of Moscow transferred the licensing regime to electronic form, paper forms had to be saved, as the regulatory restriction continued to apply. Such a decision limits not only the potential of digital transformation, forcing the applicant and the agency itself to spend additional resources, but also hinders the implementation of a registry model for issuing logging tickets.

The CT Strategy also highlights other promising technologies, such as artificial intelligence and machine learning. Although they can lead to hyperautomatization, that is, extremely rapid job replacement and displacement of a person from his usual branches of economic activity, the potential of neural networks for state control (supervision) should not be underestimated – they can analyze large amounts of data in order to identify patterns (M.V. Mishustin, as an illustration of the pattern discovered by AI, gave an example with black cars, which are much more likely to get into accidents due to poor lighting conditions on the roads), predicting the occurrence of emergency situations and automating routine processes for which the maintenance of the state apparatus is unnecessary. All this can improve the quality of state control (supervision) and decision-making at all levels, although ethical issues are likely to remain ^{[10, p. 180]}.

In addition to the CT Strategy, the previously mentioned 2026 Concept was adopted at the end of 2023. In addition to the introduction of a unified data model in the field of control, it involves the creation of a personal account of a controlled person, which allows interaction with control authorities in a "one-stop shop" mode. Interaction, especially documentary, should be fully translated into electronic form, and in the part where possible, control, supervisory and preventive measures will be carried out through the Inspector mobile application. It is assumed that the departments will also begin digitalizing cases of administrative offenses and will conduct proceedings in state information systems. The Ministry of Economic Development of Russia, which oversees the reform of control (supervision) in the country, is increasingly trying to combine numerous disparate GIS into a single digital circuit.

According to the researchers, there are chances for the implementation of such an approach, however, in the field of state control, the situation is complicated by the secrecy of data and departmental interests, which often hinder impartial monitoring ^{[14, pp. 77-85]}. A number of technical problems related to the correct operation of algorithms are solved relatively quickly. Perhaps a more significant factor will be the low digital literacy not only of users of public services, but also directly of employees of control (supervisory) bodies, who often do not undergo advanced training in working with information resources, noted in the doctrine ^{[15, p. 62]}. The implementation of the reform always depends on the quality of work "on the ground".

In any case, the concepts and strategies approved by the Government of the Russian Federation correspond to the fundamental provisions of the "May decree" of the President of the Russian Federation adopted in 2018 (Decree of the President of the Russian Federation dated May 7, 2018 No. 204 "On National goals and Strategic objectives for the development of the Russian Federation for the period up to 2024"). Then, in order to strengthen Russia's scientific and technological sovereignty, it was announced that it was necessary to introduce digital technologies into public administration as soon as possible. The start of using an increasing number of government information platforms helps to reduce transaction costs in the economy, reduce administrative barriers and open information for entrepreneurs who have become the backbone of the national economy in recent years.

Analyzing the stages of formation of the state information policy in the field of state control (supervision) of the economy, several conclusions can be drawn that determine the promising state of informatization of control and supervisory activities.

Firstly, as it was laid down back in 1994, all federal initiatives to create state information systems fit into the logic of forming a unified information space on the territory of Russia, which implies reducing the discretion of regulators of control (supervision) in the subjects of the Russian Federation, reducing the number of disparate information systems at the regional and municipal levels. Of course, there are some successful solutions in the regions today. For example, GIS "Open Control", developed by the Government of Moscow, allows using an electronic portal to consult controlled persons, calculate their risk level, and post information about self-examination for certain types of control. This useful functionality, however, does not go beyond what is allowed by the federal regulator. In the future, the formation of a unified data model will be carried out either through federal GIS, or through connecting regions to them.

Secondly, information systems created in the field of state control (supervision) are interconnected, which allows data to be transmitted in an end-to-end form, as well as expands the possibilities of interdepartmental interaction. For example, if a control (supervisory) body in the field of landscaping, usually referred to as local governments, uses a risk-based approach when predicting violations, it will be able to refer to the results of measures for related types of control. Indeed, within the framework of housing control or licensing control over entrepreneurial activities for the management of apartment buildings, similar mandatory requirements are checked, and their violation will give an idea of unscrupulous housing cooperatives, management companies, institutions and other organizations.

Thirdly, at the stage of digital transformation, it is no longer enough to regulate basic information legal relations in the field of state control (supervision), involving the differentiation of rights and obligations of participants without comprehensive involvement in the legal matter of a rapidly changing technological space. New control tools, especially remote ones, should receive regulatory consolidation and another level of legal guarantees. For example, many control (supervisory) bodies already use drones, allowing them to explore a much larger space without interacting with controlled persons ^[2]. At the same time, despite the broader evidence base, the use of UAVs in the context of legal guarantees is exactly the same control measure as a single inspection by an inspector of an object of control within the framework of an on-site survey.

It is likely that the further steps of the regulator will be aimed at continuing the current trends in the information support of state control (supervision). It can already be assumed that in the next editions of regulatory texts, considerable attention will be paid to digital remote control tools, which are becoming more and more with the development of technology. In addition, issues that have not yet been fully resolved, for example, with the digitalization of administrative proceedings in the field of control and supervisory activities, with the systematization of accounting for cases of harm to legally protected values, will certainly receive priority. It is quite possible that a separate information system integrated with existing ones will be developed for each of the directions. Anyway, the vector of administrative and legal regulation has already been set, and only significant political decisions can change it.