Colombia: ATI Movement Rolls Out Draft FOI Bill

29 July 2011

By Michael Evans

Director, Colombia Documentation Project, National Security Archive

For more than two years, a coalition of transparency advocates in Colombia has been developing draft language for what might someday become the country’s first right to information law.

The full text of the proposed access law, along with a detailed statement of purpose from the authors of the bill, is being published today on Freedominfo.org for the first time.

Today’s posting also includes an interview (in Spanish) with Ana Paulina Sabbagh of Transparencia por Colombia and Vivian Newman Pont of the Centro de Estudios de Derecho, Justicia y Sociedad (DeJusticia).  Together, these groups formed the Alianza Más Información, Más Derechos to develop and promote the adoption of access to information legislation in Colombia.

Although it appears unlikely that the law will be enacted during the legislative session that opened last week, backers from the Alianza are hopeful that they will eventually be able to gain the support necessary to push the measure through Congress.  In the meantime, the groups will continue to inform and educate key actors and society at large about the proposed law and the virtues of greater transparency.

Constitution Not Enough

Some mistakenly assume that the right to information in Colombia is guaranteed by the existing Derecho de Petición (“Right to Ask”), a more narrow constitutional provision that provides a basic mechanism for citizens to petition the for government information.  As Sabbagh and Newman explain, this confusion has limited the development of the right to information as an independent guarantee and “impedes the development and application of minimum standards for transparency and pro-active disclosure.”

Sabbagh and Newman identify three key differences between the Derecho de Petición and the fundamental right to information.

  • While the Derecho de Petición requires petitioners to identify themselves and to explain the motivations behind their request, under the proposed legislation any person would have the right to access information without the need for identification or justification.
  • The right to information calls for government entities to make themselves fundamentally more transparent through proactive disclosure and the regular publication of information of interest to the general public without the need for a formal request.
  • The proposed right to information legislation would not allow officials to deny access to information for which it was responsible due to its alleged non-existence or destruction.  Under the law, the government would be obligated to construct, capture and produce the information to satisfy requests.

Expanding Access

Modeled after progressive access laws enacted in other parts of Latin America, the proposed legislation includes a number of other important reforms that would greatly expand access to information in Colombia.

  • Inspired by the Inter-American Court’s precedent-setting decision in Gomes Lund  v. Brasil, the new law would explicitly prohibit the government from denying access information relating to fundamental human rights violations.
  • Under the proposed legislation, government agencies would be obligated to release information unless it fell under one of eight specific categories of exempt material.
  • Government agencies would also not be allowed to refuse to confirm the existence or non-existence of responsive material – a practice common among certain U.S. agencies, including the Central Intelligence Agency and the Drug Enforcement Administration (the so-called “Glomar” response).

The draft legislation would also create an information ombudsman, the Delegada de Información, to promote, guarantee, control, oversee and implement the law and the right to information that it is meant to protect.  The Delegada would also have the power to discipline government officials in cases where citizens are denied the fundamental right to information.

Prospects?

Still, transparency advocates are doubtful that the Colombian legislature has the political space to consider the proposed transparency law during the current session, as the agenda already packed with a number of important and far-reaching reforms backed by President Juan Manuel Santos.  But Sabbagh and Newman argue that right to information reform should go hand-in-hand with these other measures.

“The process of truth, justice and reparation, as with the recent approval of the Victims Law, the new Anti-Corruption Statute, and the Land Reform Act, are just a few examples that demonstrate the need for public access to information to guarantee the success of the rights affirmed in those same laws,” they said.

Also unclear is what impact Colombia’s new Intelligence Law will have on transparency and access to information under the control of the country’s intelligence and counterintelligence services.  Sabbagh and Newman believe that the new measure, approved in 2011, violates the fundamental right to information by making all intelligence records secret without requiring the agency to explain its motivation or demonstrate a concrete harm that would result from disclosure.  Moving forward, the Alianza Más Información, Más Derechos is considering whether to mount a constitutional challenge to the new law.

Read the complete interview (in Spanish)

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