Argentina: Lights and Shadows in a New Provincial Law

2 July 2012

By Natalia Torres

Torres is Senior Researcher for the Center for Studies on Freedom of Expression and Access to Information  (CELE) in Argentina. See this article Spanish.

In a recognized paper, Pollitt and Bouckaert laid out in words and evidence a fact that has been obvious for analysts of public policy: “All other things being equal, reforms in highly decentralized states –whether they be unitary or federal— are likely to be less broad in scope and less uniform in practice than in centralized states”. [1] Regulation of the right to know in federal countries such as Argentina, where each state has wide-reaching prerogatives to establish its own laws, provide more evidence for this hypothesis.

Argentina lacks a national law to regulate the right to know. This unresolved situation has not prevented provincial states from advancing in regulation of the right in their respective territories. Chubut pioneered with the passage of a provincial law in 1992 and the City of Buenos Aires followed in 1998. These provinces spearheaded the national debate that arrived recently with the new millennium. Since then, other provinces have joined the list of those with access to information laws.[2] The most recent example was Misiones province, passing a law on June 7 this year.

One could then presume that the argentine case demonstrates the external benefit of the difficulty described by Pollitt and Bouckaert in applying a national policy –in this case, the absence of a policy—at the provincial level, something that was considered by the authors in their study: “Indeed, it is often argued that federal states have the advantage that they form natural laboratories, where one approach can be tried in one state or at one level, while another is tried elsewhere”. [3]In the Argentine case and in light of the absence of a national information access law, states have advanced in the enactment of provincial laws.

Here end the benefits of federalism, or administrative decentralization, for the enactment of reforms. The negative consequence of this situation is the differential recognition of this right and the impossibility of setting a minimum standard for its regulation. An example is the Northwestern province of Jujuy, where the regulation of the right to know also established that those requesting information were required to be free of outstanding local tax debt. More recently, Misiones, a small Northeastern province, moved forward with recognition of the right, but the resulting legislation has caused concern.

One of the problems is the very definition of public information contained in the law. There is a contradiction. Article 3 establishes that “Obligated subjects shall provide to whomever may request it, the information contained in written documents, photographs, recordings, magnetic or digital storage, or in any other format that has been created or obtained by the solicited organism or that is in its possession or under its control”. In article 2, however, public information is defined as “documentation that serves as a basis for an administrative act or for the minutes of official meetings”. If we consider these two articles, there is a potential conflict: if public information is that which is found under the control of the obligated subjects, the universe of documents is much wider than that stipulated in article 3, which refers exclusively to documentation that constitutes a basis for administrative acts. If we consider only article 3, much of the information included in article 2 could be excluded. For example, annual reports, budget reports, audit reports, documents on policy promotion and even information published on organizations’ websites could fall outside of this definition.

Another concern stems from the definition of obligated subjects. Article 2, previously cited, does not make reference to subjects that must provide information. Article 1 does, although at the end of list of entities, it adds: “The preceding list is merely expository”, which opens an ambiguity that should be eliminated in an article as important as the establishment of passive legitimization. Another vague point in the legislation is: “business organizations where the Province participates in the capital or in membership decisions or that receive subsidies from the Provincial State”, thus including business organizations, but not other types of physical and legal persons that may receive provincial subsidies.

Another problem arises from the ambiguity in the text of the exceptions to the right to know. One of the exception paragraphs refers information about “cases that refer to family matters”, an exception which is ambiguous or inexact. Another worrisome exception refers to information which is “…expressly and reasonably classified as reserved, especially that which refers to public security or health.” The law does not determine procedures for the classification and declassification of information, however, encouraging decisions to be made at the discretion of civil servants and based on reservations when a petition is received, rather than promoting clear policies for classification and the archival of information.

The formal requirements for information petitions should also be considered. The obligation that petitioners make their petitions exclusively in writing excludes those who are unable to express themselves in this medium. Possibly related to this, the formality of the complaint mechanism when a request for information has not been satisfied is another point of concern. The law establishes access to information judicial actions for presenting complaints due to failures to follow the law. This obligates petitioners to have certain symbolic and economic resources in order to demand the granting of information through judicial means.

Finally, the provincial legislature delegates the implementation of the law to the Governmental Ministry of the Province, without considering key questions such as: the division of provincial state powers; the activities that should be carried out; who should be in charge of implementing the law; or where the budgetary money will come from to implement the information policies at the provincial level.

We have listed here some of the questions that cause concern about the law. Even so, the text could have included bigger mistakes. The involvement of the Argentine Journalism Forum (FOPEA) and the Misiones Press and Communication Workers Forum (FOPREMI) prevented the approval of a text containing an article that could have had serious institutional consequences. According to FOPEA, “In the final text of the law an article was ultimately excluded that had been included in a preliminary version, where it was proposed, among other things, that there be a civil and penal responsibility for the ‘malicious distortion’ of information provided, used as a source for research, or the presentation of information in articles or editorials. And it added that ‘without damage of refusal by the organism required to promptly provide information from their dependency’”.[4]

Today, there are more than 90 countries that have progressed in the regulation of access to information and the international standards in the area have been detailed in a clear and concise manner in a model law at the inter-American level. It is difficult to understand, then, why these precedents are not sufficiently considered when the time comes to draft a new legislation on the topic. Those of us who promote the right to know always celebrate the interest of our representatives in the advancement of the right to know, even with gray areas.

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