GEO

The dysfunctional whistleblowing mechanism in the Georgian public service

25 June, 2020

 

Having a proper and effective mechanism of whistleblowing and the protection of whistleblowers is an essential component of an effective anti-corruption system. Reform in this area took place in Georgia in 2015. The analysis of the last five years demonstrates that the mechanism of whistleblowing remains largely on paper and that its implementation in practice has largely failed to date.

Transparency International Georgia calls on the Government of Georgia and the Civil Service Bureauother to launch a discussion on how to fully implement the mechanism of whistleblowing in practice.

Key findings

The analysis of acting legislation on whistleblowing in the public service of Georgia and the requested public information has revealed the following problems:

Scope of the law

  • Law enforcement agencies (State Security Service, Ministry of Internal Affairs and Ministry of Defense) have not yet developed special legislation on whistleblowing and protection of whistleblowers, which is why their employees are unprotected against possible retaliation for whistleblowing. In recent years, most of the high-profile whistleblowing cases were related to these institutions.

Absence of a common approach

  • There is no single standard or approach for identifying whistleblowing statements in the public service, which is why most public institutions do not or cannot perceive potential whistleblowing statements as such. Therefore, available public information about the number of whistleblowing cases does not necessarily reflect the actual number of such cases.
  • There are no minimum standards for internal procedures and rules for whistleblowing, and public institutions are not required to introduce such procedures.

Passivity of responsible bodies

  • There is no responsible body that would: collect and publish statistics on whistleblowing cases and responses to them, as well as data on awareness and trust of public servants; develop minimum standards related to whistleblowing; monitor the introduction of such standards in public institutions; advise interested parties on whistleblowing by telephone hotline; monitor the process of investigation of whistleblowing statements; accept and review cases of pressure on whistleblowers.
  • Public institutions and law enforcement agencies responsible for anti-corruption activities do not compile statistics on whistleblowers - the Ministry of Justice does not publicly disclose whistleblowing cases; the State Security Service, the Ministry of Internal Affairs and the Ministry of Defense do not record relevant statistics separately, and the Prosecutor General's Office does not produce any relevant statistics.

The problem with production and publishing of statistics

  • Unified statistics on whistleblowing cases and responses to them are not produced and published.
  • Out of the 36 public institutions studied, the Ministry of Justice did not provide any public information about whistleblowers; no whistleblowing cases have been reported in 18 public institutions in the last 5 years; there has never been a need to use the whistleblower protection legislation. The data provided by public institutions on whistleblowing cases are questionable due to the lack of identification standard of whistleblowing statements, lack of distinction from other types of complaints and the lack of a common approach. In the 12 public institutions that provided TI Georgia with statistics of some kind, 252 whistleblowing cases were recorded in the last 5 years, most of which (225) are related to only 5 public institutions.

Lack of willingness to improve the mechanism of whistleblowing

  • Since 2015, the mechanism of whistleblowing has not improved on a legal level, indicating that no serious work is underway to improve whistleblowing. International anti-corruption recommendations are not being implemented in this regard either. The effectiveness of the responses of law enforcement agencies to whistleblowing statements has not yet been assessed.
  • Insufficient responses to high-profile cases in recent years when whistleblowers have failed to use legal protection mechanisms, is indicative of a lack of political will and/or inefficiency of the system.
  • mkhileba.gov.ge - the official whistleblowing website has been abandoned. Its use is declining on an annual basis. In 2017, 111 applications were submitted using the website, and this number dropped to 24 in 2019. The website does not reflect the reduction of the number of ministries. Moreover, responses from public institutions raise suspicions that they may incompletely or not at all record emails from mkhileba.gov.ge, which casts doubt on the effectiveness of this website as a whistleblowing channel.

What is whistleblowing and why is it important

A whistleblower is a person who notifies relevant agencies or individuals about a violation in the public or private sector that is related to corruption, is illegal, or damages public interest. Whistleblowing plays an important role in combating corruption, as whistleblowers can reveal violations that are otherwise difficult to detect.

Whistleblowers often act at the risk of personal well-being. A person may lose their job, reputation, liberty, or even their life because of a whistleblowing statement. It is therefore extremely important to have guarantees of anonymity, security and protection from revenge, both at the legal and practical level so that the potential whistleblower can more easily overcome fear and expose the crime.

The settlement of technical and procedural issues related to whistleblowing and the widespread dissemination of this information is also very important. For example, it is necessary to separate a whistleblowing statement from other types of complaints so that the ambiguity does not complicate the decision of the potential whistleblower and the authority receiving the whistleblowing statement can correctly identify the whistleblowing statement.

Thus, encouraging whistleblowing, together with legal protection and clear procedures, helps to expose corruption cases, making them an integral part of an effective anti-corruption system and helping the public to avoid threats that could be caused by misappropriation of public funds, unduly fulfilled public works or human rights violations.

Review of legislation

Legislative norms for whistleblowing and protection of whistleblowers have been in force in Georgia since 2009[1]. Legislation improved significantly in 2014-2015:

  • Any person (and not only a public servant) was considered a whistleblower;
  • The definition of whistleblowing has been expanded (from only committed violations to also expected breaches);
  • The presumption of good faith of the whistleblower was recognized;
  • The whistleblower was granted a guarantee of anonymity;
  • Protection mechanisms have been extended to close relatives of the whistleblower;
  • The range of bodies handling the whistleblowing cases has expanded (the Public Defender's Office, the Prosecutor's Office and investigative bodies have been added);
  • The whistleblower was given the right to provide information to the media and civil society, but only after first contacting the relevant government agency and waiting for its decision.

However, there are significant legislative gaps that have not been resolved in the last 5 years:

  • Special legislation has not yet been drafted to regulate the issues of whistleblowing in the State Security Service, the Ministry of Defense and the Ministry of Internal Affairs; 
  • The law does not provide for compensation for damages incurred by a whistleblower;
  • The whistleblower must be able to provide information directly to the media and civil society at least in cases of imminent or large-scale damage.
  • Public institutions are not required to establish clear internal mechanisms of whistleblowing.

In the future, it would also be appropriate to adopt a separate law on the mechanism of whistleblowing, taking into account the best international practice (currently governed by the Law on Conflict of Interest and Corruption in the Public Service), which would fully, clearly and consistently address whistleblowing issues, including increased obligations for the body responsible for the proper functioning of the whistleblowing mechanism.

Whistleblowing in practice

Although there are basic norms for the protection of whistleblowers at the legislative level, the mechanism of whistleblowing does not work in practice at its full extent:

Passiveness of the responsible body

In order to raise awareness about the protection of whistleblowers in the public service, the Civil Service Bureau regularly conducts trainings (number of participants: the year 2015– 500; 2016 - 660; 2017 - 289; 2018 - 448; 2019 - 528), although the results of these events are not measured - no data are collected to measure how well public officials are informed about the mechanism of whistleblowing, how much they trust that mechanism, and whether they have ever used it. According to a 2019 survey by UNDP Georgia, 44% of civil servants believe that they can be punished for filing a complaint against a violation with their agency. This result suggests that more effort is needed to increase trust towards whistleblowing.

Although the Civil Service Bureau is responsible for enforcing the mechanism of whistleblowing and improving it, international recommendations in this regard are not being properly implemented. In particular, within the framework of the Istanbul Action Plan of the Organization for Economic Co-operation and Development (OECD), recommendations were given to Georgia to assess the effectiveness of reactions of law enforcement agencies to whistleblowing channels and whistleblowing cases to identify elements that need further improvement. The results of the monitoring conducted within the framework of the action plan show that no research has been carried out to assess the effectiveness of the whistleblowing system.

In addition to training, the Civil Service Bureau provides telephone consulting to those interested in whistleblowing issues, although it does not make a record of such cases. The Bureau also manages the official website of the whistleblowing (mkhileba.gov.ge), which is one of the channels of whistleblowing (see next section).

As of today, none of the public institutions are responsible for the following important activities, which, according to the best international practice, are necessary for the successful development of the mechanism of whistleblowing:

  • Production and proactive publication of unified statistics on whistleblowing cases in public service and responses to them.
  • Management of a special consulting hotline related to whistleblowing.
  • Establishing minimum standards for identification of whistleblowing statements and internal whistleblowing procedures, as well as control over the implementation of these standards in public institutions.
  • Reaction to inaccurate investigations of whistleblowing and receive complaints from whistleblowers about actions taken against them due to whistleblowing.

It is advisable to either add these functions to existing agencies in the future, such as the Civil Service Bureau (together with relevant resources, of course), or hand them over to a new agency, such as the Independent Anti-Corruption Agency.

Abandoned website - mkhileba.gov.ge

In 2016, the Civil Service Bureau created a special website (mkhileba.gov.ge), where anyone can (if they wish - anonymously) make a whistleblowing statement, which will be sent to the relevant public institution. The website acts only as a link between a whistleblower and the recipient institution and may be used to send a whistleblowing statement to 181 public institutions. Statistics for 2016-2019 show that:

  • A total of 200 whistleblowing statements were sent to 181 public institutions in four years. At least one whistleblowing statement was sent to only 75. In 4 years, not a single application was sent to 106 institutions. 
  • The peak of website use was in 2017, when 111 whistleblowing statements were sent through it. Since then, the use of the website has been declining every year: 2016 - 29, 2017 - 111, 2018 - 36, 2019 - 24 applications.
  • The most whistleblowing statements were sent to the Prosecutor General's Office - 12 and the Ministry of Internal Affairs - 9.

The fact that the use of the website has been declining in recent years and that more than half of public institutions (58%) have not used the whistleblowing website in the last 4 years indicates that the website is virtually dysfunctional and the efforts and resources applied in raising awareness of public servants in this regard is either not enough or not effective.

The ineffectiveness of mkhileba.gov.ge as a whistleblowing channel is also indicated by the fact that the number of whistleblowing statements (from all sources) recorded in 10 out of 36 public institutions studied by Transparency International Georgia was less than the number of the statements sent only via mkhileba.gov.ge. In addition, public institutions do not record separately only the statements received from mkhileba.gov.ge, which makes it impossible to say whether the statements received through this channel are included in the official statistics or whether they react to them at all.

The fact that the decrease in the number of ministries has not yet been reflected on the website also casts doubt that the website is functional. The ministries of Energy, Environment, Sports and Youth Affairs, Penitentiary and Probation, Culture and Monument Protection are still posted as separate entities on the website.

Absence of a common approach

The main purpose of whistleblowing is to disclose information about a crime that harms the public interest. Accordingly, the whistleblowing statement should be separated, both from the substantive and procedural point of view, from personal grievances or from those types of complaints that have no public interest component. In the absence of such a separation, the whistleblowing mechanism will not work in practice, as it will overlap with procedures for private complaints (e.g., disciplinary violations).

There is no such separation in the legislation of Georgia, neither at the level of law nor at the level of individual public institutions, which are not obliged to develop internal procedures related to whistleblowing. According to the state audit report, none of the 11 public institutions[2] selected (as of the spring of 2018) had effective mechanisms in terms of whistleblowing management in practice, and none of their provisions or relevant acts covered the procedure for reviewing whistleblowing statements.

Moreover, in the current situation, it will be difficult for public institutions to fully implement the whistleblowing mechanism, as there is no official counseling service dedicated to whistleblowing issues (e.g., hotline), as well as any kind of minimum standard on how to distinguish a whistleblowing complaint from a private complaint, or how to arrange internal procedures and regulations of whistleblowing. As of today, even the Civil Service Bureau has no answer to the question of how a public institution should detect and identify a whistleblowing statement among all other incoming complaints.[3]

Official whistleblowing statistics

No statistics on whistleblowing cases and responses to them are proactively made public anywhere. Transparency International Georgia requested public information from 36 public institutions: all ministries, the General Prosecutor's Office, the State Security Service, the Civil Service Bureau, the Supreme Court, the Courts of Appeal, the city courts, city halls and city councils of self-governing cities, government and presidential administrations, Parliament and the Office of the Public Defender.

One public institution - the Ministry of Justice did not provide any public information about the whistleblowers at all. Due to this, it is unknown what information the Legal Department of the Ministry of Justice possesses or collects, which is at the same time the Secretariat of the Anti-Corruption Council of Georgia and is directly responsible for working on anti-corruption issues.

According to the requested public information, the whistleblowing mechanism has not been developed in half of the public institutions at all: in the last 5 years, 18 of the 36 public institutions surveyed have not received any whistleblowing complaints (see the Annex). Six of these 18 institutions should have received at least one whistleblowing application through the official whistleblowing website (mkhileba.gov.ge). The Public Defender of Georgia also did not receive any whistleblowing complaints.

No whistleblowing related statistics are recorded by the General Prosecutor's Office of Georgia, which is one of the recipients of the whistleblowing statements and is partially responsible for protecting whistleblowers. As a result, we do not know the number of whistleblowing cases reported to the prosecutor's office (according to mkhileba.gov.ge, in 2016-2019, the prosecutor's office received 12 messages through this channel); the number of applications received from other public institutions by the Prosecutor's Office; and the number of cases when whistleblowers requested the use of special protection measures.[4]

In the 36 public institutions studied, there has never been a need to apply the whistleblower protection legislation. Whistleblower protection guarantee is the most important component of the whistleblowing mechanism. The fact that the use of such protection mechanisms has not been observed even 5 years after the reform, directly indicates that the whistleblowing mechanism does not function in practice.

Due to the lack of a common approach to identifying whistleblowing statements, the data provided by public institutions lacks reliability. This is reflected in the fact that often the whistleblowing cases are not recorded separately and they are recorded in conjunction with other types of complaints. Of the 15 government agencies that have provided TI Georgia with statistics of some kind, several institutions definitely have the following situation:

Ministry of Internal Affairs - In response to our request for whistleblowing cases, the Ministry of Internal Affairs has sent TI Georgia full statistics of complaints received by the General Inspection, where the whistleblowing cases are not recorded separately. According to the letter, in 2017-2019, a total of 27,562 applications were submitted to the General Inspection through various channels (letters, hotlines - 112 and 126), in which violations of any form were detected in 5,450 cases.

State Security Service - The State Security Service does not record whistleblowing cases separately; it has only a single statistical report of the General Inspection on the violations committed by its employees received through various channels. In 2015-2019, 762 employees were subjected to various disciplinary actions, although it is unknown how many of these cases were the result of whistleblowing. In addition, the Anti-Corruption Agency under the Security Service has been keeping a “record of correspondence on the possible facts of crime” since 2019 (101 such cases were reported in 2019). However, the whistleblowing statements are not filed separately here either.

Ministry of Defense - A similar situation exists in the case of the Ministry of Defense, which provided TI Georgia with statistics on applications/complaints received by the General Inspection. According to the Ministry, in 2018-2019, the General Inspection recorded 90 statements/notifications, 30 of which revealed some violations, although it is unknown how many of these cases were the result of whistleblowing.

LEPL Revenue Service - The statistics of LEPL Revenue Service should be separated from the data provided by the Ministry of Finance, as this data is most likely not a whistleblowing statement. According to the Ministry, the Revenue Service's Department of Internal Monitoring in 2015-2019 recorded 194 statements by whistleblowers, while the State Audit Office, which had studied the institution, did not consider the statements made by it during the first half of 2018 to be whistleblowing ones.

The data from the other 12 public institutions are as follows:

  • There have been a total of 252 whistleblowing cases in the last 5 years, most of which (225) are from only 5 public institutions (see the Annex): Ministry of Environment and Agriculture (78); Batumi City Hall (41); Rustavi City Court (39); Ministry of Finance (35); Ministry of Health (32).
  • Out of 252 whistleblowing statements, violations were confirmed and various measures were taken in 132 cases, only 5 cases were sent to law enforcement agencies.
  • Of the 252 whistleblowing statements, only 20 were anonymous.
  • As for the whistleblowing channels, most of the 252 whistleblowing statements - 161 were received in writing, 25 - verbally/by telephone, 62 - electronically (only 8 applications were received namely from mkhileba.gov.ge. This raises the suspicion that the studied public institutions may not properly record the emails received from mkhileba.gov.ge).

The present data are unlikely to reflect the actual statistics of whistleblowing cases and include other types of complaints in addition to whistleblowing statements. In addition to the fact that there are no minimum mandatory standards for identifying and managing whistleblowing statements, there are three additional circumstances that cast doubt of the credibility of official data:

  1. Discrepancies with State Audit Data - According to the State Audit Office report, only 1 whistleblowing statement was reported in the first 6 months of 2018 in the 11 public institutions surveyed, while, according to the public information requested by TI Georgia, 102 whistleblowing cases were filed in the 8 institutions that coincided in the State Audit and TI Georgia reports during 2018. In this case, the audit data should be considered as more reliable, since the authors of the study had direct access to public institutions, while TI Georgia relies only on public information received from them and does not have the opportunity to obtain detailed explanations about the information provided. As a result, this discrepancy in the figures, along with the fact that public institutions do not have defined internal procedures for whistleblowing, indicates that the official statistics may not reflect the reality and contain other types of complaints besides whistleblowing statements.
  2. Suspicious differences in similar public Institutions - a significant difference in the number of whistleblowing statements between similar public institutions indicate different approaches to record-keeping of whistleblowing statements. For example, the highest number of whistleblowing among the 5 self-governing city halls in the last 5 years was recorded in Batumi City Hall (41), while in the other self-governing cities - Kutaisi, Rustavi, and Poti there were no official records of whistleblowing, and only one case was registered in Tbilisi City Hall, a much larger public institution. The same suspicious difference exists between the data of the city courts and courts of appeal of the same cities: 39 whistleblowing cases were recorded in Rustavi City Court, while in the rest of the courts there were no such cases or they did not produce relevant statistics at all.
  3. Lack of anonymous statements - The fact that, according to public data, only 20 of the 252 whistleblowing statements were anonymous, suggests that many of these statements might not have been a whistleblowing statement, one of the main advantages of which is anonymity, but another type of complaint, where anonymity cannot be provided.

In other words, given the above suspicious circumstances, even if the legislation did not include provisions on whistleblowing, the official statistics provided by public institutions would probably not have changed much. This means that serious consideration is needed on how whistleblowing statements can be formed as an independent mechanism.

High-profile cases

From the high-profile cases accumulated over the past five years, it is clear that one of the main failures of the whistleblowing mechanism in Georgia is the fact that the law enforcement agencies have continued to ignore the law. Since 2014, the law requires[5] that whistleblowing issues in the Ministry of Defense, the Ministry of Internal Affairs and the State Security Service be regulated by special legislation. However, this type of legislation does not yet exist, which is why people employed in these agencies are unable to enjoy the guarantees of legal protection of a whistleblower, for example:

  • On September 27, 2015, media organizations released video footage taken from the Ministry of Internal Affairs by a former police officer, Lieutenant Giorgi Babunashvili, regarding some possible violations of the law in the institution. According to media reports, after the release of the footage, the former police officer was in Europe, seeking political asylum.
  • In March 2015, the Ministry of Internal Affairs dismissed Ruslan Baziashvili, a police officer who had informed Givi Targamadze, a member of the United National Movement, about possible violations of the law by the Ministry of Internal Affairs. Moreover, the Chief Prosecutor's Office launched an investigation against nine whistleblowers in the Ministry of Internal Affairs on charges of abuse of office.
  • On January 23, 2020, a video recorded in 2014 was released to the media, in which patrol inspector Giorgi Dvalishvili detains the brother of Levan Izoria, the then-Deputy Minister of Internal Affairs, who is then released after the alleged intervention of high-ranking officials. According to Dvalishvili, deliberate actions against him started after he refused to send video footage of the incident to a high-ranking police official. Giorgi Dvalishvili addressed the Ministry of Internal Affairs, the Prosecutor's Office and the Public Defender about the pressure. Shortly after the start of the legal battle, he was fired on the grounds of reorganization.

All three high-profile cases involved a whistleblowing case, after which the whistleblowers failed to take advantage of the legal protection mechanisms and potentially illegal measures were taken against them. Adoption of special legislation in law enforcement agencies is important because these institutions hold considerable power, which is why whistleblowers need more guarantees of protection. Employees of these institutions also have access to potentially confidential or security-related information, which is why it is necessary to have clear scope and procedures for whistleblowing.

Another high-profile case also revealed that law enforcement agencies in practice do not share the objectives of whistleblower protection legislation. In November 2018, a whistleblower informed NGOs about the possible production of fake IDs before the second round of the presidential election. The whistleblower refused to reveal his identity publicly. Instead of complying with the requirements of the law and investigating the authenticity of the alleged breach, the law enforcement agencies demanded that non-governmental organizations reveal the identity of the whistleblower, which could lead to potentially illegal actions against them. The investigation was concluded 2 years later - no violation was identified.

Recommendations

The following measures are needed to fully implement the whistleblowing mechanism and protection of whistleblowers in Georgia:

  • The Ministries of Interior and Defense and the State Security Service must immediately adopt special, best practice-based regulations for protection of whistleblowers, or existing legislation should be extended to employees of these agencies.
  • The Government of Georgia should start working on further refinement of whistleblowing legislation, including the possibility of establishing a separate law on whistleblower protection, which will outline more detailed whistleblowing issues, such as compensation to whistleblowers and the obligation of public institutions to establish clear internal mechanisms and procedures for whistleblowing.
  • It is advisable for the body responsible for the proper functioning of the whistleblowing mechanism to also have the following functions: production and publishing of unified statistics of whistleblowing cases and responses to them, oversight of investigation of whistleblowing statements and review of cases of pressure on whistleblowers. These functions can be added to existing agencies, such as the Civil Service Bureau, or handed over to a new agency, such as the Independent Anti-Corruption Agency.
  • Public institutions engaged in anti-corruption activities (for example, the General Prosecutor's Office and the State Security Service) should start producing separate statistics on whistleblowing and, in cooperation with the Civil Service Bureau, ensure that the whistleblowing mechanism is put into practice.
  • Public Service Bureau should:
    • In consultation with the interested parties, develop a unified approach and minimum standards for the identification, recording and internal procedures of whistleblowing and oversee their implementation in public institutions.
    • Update the official whistleblowing website mkhileba.gov.ge, update the list of public institutions on it, proactively publish statistics on the use of the website, and ensure its promotion.
    • Expand activities aimed at increasing public awareness about whistleblowing issues, both in the public service and more generally. To achieve this goal, it is necessary to create a consulting hotline and maximize the dissemination of relevant information materials (videos, flyers and manuals), including electronic communication, using mkhileba.gov.ge.
  • Public institutions should develop clear internal mechanisms of whistleblowing and provide this information to their employees. They should also pay more attention to the whistleblowing statements received, including through mkhileba.gov.ge, and record the relevant statistics separately.

Annex

Whistleblowing Complaints Received by Georgian Public Institutions (2015-2019)

Public Institution

mkhileba.gov.ge

Disclosed Public Information

Ministry of Environment and Natural Resources Protection 

9

78

Batumi City Hall 

0

41

Rustavi City Court 

0

39

Ministry of Finance * 

3

35

Ministry of Labor, Health and Social Affairs 

2

32

Ministry of Economy and Sustainable Development 

11

9

Ministry of Foreign Affairs 

8

7

Ministry of Education and Science 

18

4

Kutaisi Municipal Council

1

3

Ministry of Regional Development and Infrastructure 

3

2

Human Resource Service of Tbilisi Municipality City Hall 

4

1

Civil Service Bureau 

1

1

Tbilisi City Council

0

0

Supreme Court 

3

0

Batumi City Council

3

0

Poti City Hall 

2

0

Kutaisi City Hall 

1

0

Kutaisi Court of Appeal 

1

0

Kutaisi City Court 

0

0

Public Defender's Office 

0

0

Government Administration 

0

0

President's Administration 

0

0

Parliament 

0

0

Poti City Court 

0

0

Batumi City Court 

0

0

Rustavi City Council

0

0

Rustavi City Hall 

0

0

Poti City Council

0

0

Ministry of Reconciliation 

0

0

Tbilisi Court of Appeal 

1

0

Chief Prosecutor's Office

12

not counted

Tbilisi City Court

8

not counted

State Security Service 

0

not counted separately

Ministry of Defense

2

not counted separately

Ministry of Internal Affairs

9

not counted separately

Ministry of Justice

9

unanswered

Total

111

252

 

* In the case of the Ministry of Finance, the number of whistleblowing statements does not include data from its LEPL - Revenue Service.


[1] Law on Conflict of Interest and Corruption in Public Service, Articles 201 - 2011

[2] Ministries of Infrastructure, Defense and Health; Tbilisi, Kutaisi, Rustavi and Poti City Halls; LEPLs: Ministry of Internal Affairs Service Agency and Emergency Management Agency, Revenue Service of the Ministry of Finance and Service Agency.

[3] Correspondence between Transparency International Georgia and the Civil Service Bureau, April 30, 2020.

[4] Tbilisi City Court also does not keep whistleblowing statistics.

[5] Law on Conflict of Interest and Corruption in Public Service, Article 2011

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