Article
81 of the Political Constitution states:(1)
The state shall guarantee the right, in
particular for journalists and social commentators, to obtain
access to sources of information; and to seek, receive,
examine, and disseminate objective, accurate, pluralistic,
and timely information, without prior censorship, on matters
of general interest, consistent with community values.
…
Information held in public archives shall not be classified
as secret, with the exception of documents requiring such
classification for the purposes of national defense or other
reasons specified by law.
•
Undernourished people (% of total population),
2000/03: 4
•
Population with sustainable access to an improved
water source (%), 2002: 86
Source:
UN Development Program, Human Development Reports
Data
The
Organic Law on Transparency and Access to Public Information
(LOTAIP) was adopted on 18 May 2004.(2)
The law gives citizens the right to demand public information
in any format from public bodies and organizations that
provide state services or are publicly owned. The request
must be in writing. Bodies must respond in ten days but
that can be extended another five days. There is no obligation
to create information, conduct evaluations or analysis,
or to produce summaries, statistical information, or indices
if the information is widely dispersed.
There
are exemptions for personal information, national security,
national defence including military plans, intelligence,
and other information protected specially by other laws.
The regulations note that this includes commercial or financial
information including information given in confidence; protected
commercial, banking industrial or technical secrets, information
related to the administration of justice; information on
state decision making; if it would cause harm; and information
given to the Tax Administration.
Information
can be secret for a maximum of 15 years but the duration
can be extended if there is continued justification for
it. Information currently held as secret that is over 15
years old should be made public. The National Security Council
is responsible for the classification and declassification
of national security-related information. Congress can also
declassify information in special session. Information cannot
be classified following a request.
The
Ombudsman (Defensoría del Pueblo) is in charge of
monitoring and promoting the law. It can hear complaints
or make investigations on its own initiative.(3)
Complaints
about withholdings can be made to a court by individual
requestors. The Ombudsman can also take cases to court.
The court can order the release of the information. Appeals
of court decisions can be made to the Constitutional Court.
Public
bodies are required make information about their activities
on web sites including their structures and legal basis,
internal regulations, goals and objectives, directories
of personnel, monthly remunerations, services, contracts
including a list of those who have failed to fulfil previous
ones, budgets, results of audits, procurements, credits,
and travel allowances of officials.(4)
Courts and other bodies are required to publish the full
texts of decisions. The Congress is required to publish
weekly on its web site all texts of projects of laws. The
Electoral Supreme Court is required to publish the amounts
received and spent by political campaigns. Political parties
are required to publish annual reports on their expenditures.
Public
bodies are required to appoint an official to receive and
answer requests. Bodies must create registries of documents.
They must also make an index of classified information.
They are required to adopt programs to improve awareness
of the law and citizen participation. University and other
educational bodies are also required to include information
on the rights in the law in their education programmes.
Public
employees who unlawfully withhold, alter or falsify information
can be fined one month's salary or be suspended without
salary for that period.
The
law went into effect in May 2004 but implementation has
been slow. Regulations for implementation were released
in January 2005.(5) Public bodies have
not appointed officials, nor have they created the lists
of classified information. A recent report by the Access
Initiative found that "Ignorance exists regarding the
Law of Transparency and Access to Public Information throughout
all levels of local government (municipalities, provincial
councils, etc.). There is also a lack of knowledge within
civil society about the Law and the citizen's right to public
information".(6)
The
Law of Environmental Management gives a right to obtain
information about environmental harms.(7)
20
MAY 2004
Ecuador Enacts "Transparency and Access to Information
Law"
By Carlos Osorio & Kathleen Costar
Ecuador's
Transparency and Access to Information Law was approved
by Congress and ratified by the President in May 2004. With
refreshing democratic language, the new law establishes
that "[a]ccess to information is a right of the person
guaranteed by the State" and requires that government
agencies proactively publish functional, operational and
financial information. At the same time, a number of inconsistencies
within the text, such as allowing the Armed Forces to restrict
the right to information, could prove to be obstacles for
Ecuador's push for transparency.
The
Transparency and Access to Information Law states that all
public institutions and other organizations that receive
government monies are required not only to respond within
10 days to citizens' requests, but to publish information
by means accessible to the public. In particular, the agencies
have one year to set up web sites listing bylaws, regulations,
plans, directories, staff salaries, services provided, collective
bargain contracts, budgets, auditing results, contracts,
acquisitions, credits and loans, among other reports.
In
several remarkable provisions, the Law grants citizens the
judicial appeal of denied information, allows judges to
decide on releasing information withheld on grounds stipulated
by the Law, charges the "Defensor del Pueblo"
[Public Ombudsman] to monitor, safeguard and promote the
implementation of the Transparency and Access to Information
Law, requires agencies to report to the Ombudsman and the
latter to Congress on access to information practices, and
requires universities and education institutions to develop
curricula to educate and promote discussion on the citizen's
right of access to information.
Article
2 of the Transparency Law is a declaration of principles.
The Law defines itself as an instrument to implement the
"fundamental right" to information enshrined in
"the Constitution, the International Covenant on Political
and Civil Rights," and "the Inter-American Convention
on Human Rights." Furthermore, it aims at "[p]ermitting
the accountability of the public administration and resources,
thus becoming a real mechanism of society's control…[t]he
Democratization of Ecuadorian society and the full Rule
of Law, through a true and legitimate access to public information…[f]acilitating
an effective citizen's participation in the decision making
process of issues of general interest and in its control."
In
different sections the Law states legitimate exemptions
related to safeguarding the privacy of individuals and criminal
investigations. Nevertheless, Article 17 leaves a loophole
in the transparency and accountability process empowering
the "Consejo de Seguridad Nacional", an organization
heavily influenced by the military, to classify information
pertaining to national security. Article 18 further enhances
that power for "[i]nformation classified on the grounds
of national security can only be declassified by the 'Consejo
de Seguridad Nacional.'"
All
classified information will remain so for 15 years, and
agencies can extend that period indefinitely. Information
classified on grounds other than national security can be
declassified earlier only by a qualified majority vote in
Congress. Other rigid and restrictive measures include the
criminalization of whistle blowers.
The
Transparency Law was passed after more than a year of discussion
in Parliament. The final passage was delayed since late
2003 due to objections by the Ecuadorian Armed Forces over
national security issues. The initiative for the Law came
from Ecuador's Newspapers Publishers Association (Asociación
Ecuatoriana de Editores de Periódicos - Aedep) and
was promoted by Congress. President Lucio Gutierrez ratified
the Law, and it was published on the official record on
May 18.
"Over
the past two years, the government and political
parties have adopted some legislation to promote
or ensure judicial reform, government accountability
and transparency, freedom of the press, access
to information, and anticorruption laws. The success
of such reforms, however, is limited by the contentious
dynamics of shifting political coalitions. In
a context in which presidents lack a single partisan
majority in congress, they must constantly seek
support from opposition parties by attracting
cooperation through the distribution of pork,
patronage, and other particularistic goods. This
has opened the doors for political corruption.
Successful anticorruption initiatives need to
acknowledge that corrupt political behavior is
often caused by the inherent congressional weakness
of Ecuadorian presidents and that corruption often
goes unpunished due to the politicization of the
judiciary branch. . . .
The
adoption of an Organic Law for Transparency
and Access to Public Information in May 2004
is an important step toward legally empowering
citizens and civil society watchdogs to monitor
government activity, although it is too soon
to forecast its potential success in curbing
government corruption."
"In
May, the Government enacted the country's first
freedom of information legislation, the Transparency
and Access to Information Law; however, the law
cannot be fully enforced until the President issues
regulations for its implementation. The law envisions
freedom of information web pages for each government
institution and declassifies all government information
older than 15 years."
1)
Voice and Accountability: -0.19
2) Political Instability and Violence: -0.83
3) Government Effectiveness: -0.85
4) Regulatory Burden: -0.60
5) Rule of Law: -0.71
6) Control of Corruption: -0.75
