National Security Exemptions Stir Controversy in Colombia

10 January 2013

By Michael Evans

Evans is a staff member at the National Security Archive.

In the coming days, Colombia’s Constitutional Court will decide the fate of the country’s new transparency law.

The version of the Ley de Acesso (Access Law) that emerged from the legislative process last year has stirred up heated debate in Colombia, mainly over a provision added by Congress that would exempt the Armed Forces and broad classes of information relating to “national security” from most of the new disclosure obligations.

In a amicus curiae brief before the Court, the Open Society Justice Initiative said that the Colombian law was “virtually unique in comparison with other access to information laws around the world” in that it “includes a provision which substantially narrows the scope of the law—excluding information related to defense and national security, public order, and international relations.”

The draft law reflects many of the core requirements for the protection of the right to information established in the international human rights treaties to which Colombia is a party, but … specific deficiencies in the draft law threaten to undermine its effectiveness and compliance with Colombia’s obligations under these treaties.

Even the law’s biggest supporters decry the severe restrictions on access to these kinds of information. In a July 2012 column, Vivian Newman Pont of Dejusticia, one of the NGOs that helped draft the original bill, said that the Defense Ministry had used its considerable influence in the Colombian legislature to push through the exemption.

The most unfortunate change was made on behalf of the Ministry of Defense, which took advantage of the situation to impose, as a question “of honor,” a paragraph that exempts everything related to defense, national security, public order and international relations from the ordinary access regulations.

Newman hopes that the Constitutional Court will strike down the national security exemption, but nevertheless feels that the law as written would still represent progress. “It wouldn’t be a regressive text,” Newman told Freedominfo.org, “since it does not impose more obstacles to access than the laws that are currently on the books.” The current system, she says, is disorganized and not in compliance with international standards.

There exist multiple and dispersed norms and much discretion in the disclosure of information that in turn generate opacity and is breeding ground for corruption. To put the house in order, it is necessary that the government make itself more transparent by means of a statutory law that establishes the basic rules and an organ that guarantees compliance.

On the other side of the issue is Alberto Donadío, author of  The Key to Transparency and one of the founders of El Tiempo newspaper’s Investigative Unit. In his view, the Access Law represents not “transparencia” but “tramparencia,” a term he invented combining the Spanish words for transparency (transparencia) and trap (trampa).

In an article titled, “Friendly Fire,” Donadío lays out the case against a new transparency law in Colombia, arguing that the proposed legislation violates the Colombian Constitution. Donadío points out that “only Congress has the authority to define what is secret.”

But the Government has just been authorized to determine, when presented with a petition, if “the revelation of the information would cause a present harm … that exceeds the public interest… The Constitution does not permit that access be determined by the criteria of a government bureaucrat.

Donadío blames well-intentioned transparency advocates like Dejustica and Transparency for Colombia for supporting a bill that creates new classes of exempt information not previously specified under the Constitution. Donadío represents a class of old-school journalists who became known for their dogged and innovative use of the constitutional “Right to Petition,” which along with subsequent case law, is the prevailing legal authority on the right to information in Colombia.

Newman admits that Donadío’s past efforts “nourished” the constitutional right to information “and in general the legislation and current jurisprudence on access to public information that constituted a very important advance at that time.” Even so, “public functionaries still function under a culture that requires written legislation,” she told Freedominfo.org. “Furthermore, the law goes well beyond the current situation and imposes a series of state obligations like proactive disclosure.”

Though Donadío and some others—most notably his longtime collaborator Daniel Samper Pizano—are happy with the current access regime, most of the experts consulted by Freedominfo.org were not satisfied. Federico Andréu-Guzmán, Deputy Director of Litigation and Legal Protection at the Colombian Commission of Jurists, characterized the prevailing system under the “Right to Petition” as a “legal fortress.”

Right now the law says the military documents can be in reserve perpetually. There is no basis in the law to access this information. The situation is very delicate…We really have a legal fortress as well as a practice on the part of the bureaucracy related to these themes that totally impedes the access to information. It is easier to get information from the National Security Archive or the [WikiLeaks] cables from the embassy than to get information from inside.

Donadío recognizes these challenges, but told Freedominfo.org that enforcing the law is always challenging. “It usually involves a fight,” he said, “a fight in court, a fight through the media, a lot of persistence. But the law as written was OK. No one has found the way to make access as swift and wide as it should be.”

“In the end,” says Newman, “it’s important to keep in mind that the influence of the military lobby has gravely affected the legislation.” Unless the Court declares the national security exemptions unconstitutional, she adds, “much information will be shielded from the new regulations on access to public information.”

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