Latin American Countries Make OGP Access Commitments

12 November 2014

By Jesse Franzblau

The following is an excerpt from a summary prepared by Jesse Franzblau for the Open Government Partnership Civil Society Hub blog. The article reviews the commitments made by the 17 OGP member countries in Latin America in their national action plans. This section, minus footnotes and some lovely formatting, describes the access to information area.

94 of the 328 commitments in Latin America addressed access to public information, demonstrating the high priority of promoting the right to information as an enabler right for other economic, social, and political rights.

Brazil and Colombia’s first plans included commitments to pass access to information laws, which had been debated and advocated for by civil society for years. The laws finally passed in 2012 and 2014, respectively. Other countries, such as Chile, Brazil, El Salvador, Peru and Uruguay, included commitments in their first plans to enact reforms to strengthen the implementation of existing FOI laws. The creation of information offices in all public institutions in El Salvador to receive and respond to FOI requests was an important measure for the protection of the right to public information. Honduras included an important commitment to strengthen its oversight institute (Instituto de Acceso a la Información Pública – IAIP), establishing mechanisms for regular verification of government transparency portals.

The passage of Colombia’s transparency law is a noteworthy example of how OGP can be used as venue to help promote a culture of openness. Colombia’s IRM report highlights how civil society expressed concern over aspects of the draft FOI law that limited access to information that could cause “harm to public interest.” Civil society expressed objection to such provisions that exempted from disclosure information from broad categories, such as defense and national security, public order and international relations. In the end, the Constitutional Court struck down the limiting provision, and the law passed last March of 2014 without such limitations.

In spite of these advances, however, new challenges have emerged. While Honduras and El Salvador have made important FOI advances, their transparency systems still require citizens to self-identify when filing a request. This obligation discourages requesters from using the law over privacy and security concerns associated with forfeiting information to the state, especially at the local level. In Honduras, civil society also has noted how the security sector generally operates outside the scope of the FOI law. The country’s IRM researcher pointed out the limits to freedom of expression. These include attacks against journalists, and the passage of the Law on Secret Information (Ley de Secretos) passed in January 2014.

Civil society organizations in Peru also voice concern that a culture of secrecy is prevailing, particularly with regards to information pertaining to national defense and security. Civil society groups highlight, for example, that Article 12 of Legislative Decree 1129, passed by President Humala in December of 2012, is incompatible with Peru’s international law obligations, and with Peruvian law. Similar to the provision struck down in Colombia, the decree allows for broad exceptions from disclosure for information relating to the defense sector. Peru’s IRM report expresses deep concern over the Decree, and noted that it threatens to contravene the country’s FOI law.

Civil society in the region has also been quick to point out the need for commitments that ensure greater protections for journalist and whistleblowers. Commitments in other regions can serve as models in this area; Montenegro’s Action Plan included commitments to improve media freedoms and adopt whistleblower protection. There is room for growth in this area in the Americas, as several IRM reports recommend incorporating international guidelines, such as international Principles on National Security and the Right to Information (known as the Tshwane Principles) into future plans. Based on international law and best practices, these principles provide guidelines to developing policies relating to whistleblower protections, disclosure of national security-related information, and classification and declassification guidelines.

Big Wins in Promoting Freedom of Information and Expression

Brazil – Committed to passing its long-awaited freedom of information law, approved in 2012.

Chile – Approved reforms to the access to information law (Ley No. 22.285).

Colombia – Committed to passing its long-awaited freedom of information law, approved in 2014. Constitutional Court struck down provision limiting access to information related to defense and national security.

El Salvador – Created information offices in all public institutions to receive and respond to FOI requests from citizens.

Uruguay – Empowered the Access to Public Information Unit (UAIP) to carry out activities to enhance the capacity of public entities to fulfill their transparency obligations as mandated by the Access to Information Law (Ley No. 18.381).

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