2004 freedominfo.org Global Survey Results - Peru
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

Article 2 of the Constitution states:

All persons have the right: . . . .
V. To solicit information that one needs without disclosing the reason, and to receive that information from any public entity within the period specified by law, at a reasonable cost. Information that affects personal intimacy and that is expressly excluded by law or for reasons of national security is not subject to disclosure.(1)

Access to information is constitutionally protected under the right of habeas data. Several cases have allowed the courts to establish their jurisdiction over, and support for, habeas data. In 1996, the Constitutional Tribunal, citing Article 5.2 of the Constitution, ordered the Ministry of Energy and Mines to release environmental surveys of a private mining operation to the Peruvian Society of Environmental Rights. (2) Also in 1996, the Supreme Court sided with the Civil Labor Association against the General Director of Mining and ordered the release of an environmental impact study submitted by the Southern Peru Copper Corporation. (3)

The Law of Transparency and Access to Public Information was adopted in August 2002 and went into effect in January 2003. (4) Under the law, every individual has the right to request information in any form from any government body or private entity that offers public services or executes administrative functions without having to explain why. Documentation funded by the public budget is considered public information. Public bodies must respond within seven working days which can be extended in extraordinary cases for another five days.

The campaign for the law was led by the Peruvian Press Council. (5) The Parliament amended the law in January 2003 and made numerous amendments to the Act following criticism of the excessive exemptions, especially relating to national security and a law suit filed by the Ombudsman in the Constitutional Tribunal on the constitutionality of the Act. (6)

There are three tiers of exemptions: For national security information that disclosure would cause a threat to the territorial integrity and/or survival of the democratic systems and the intelligence or counterintelligence activities of the CNI; Reserved information relating to crime and external relations; and confidential information relating to pre-decisional advice, commercial secrets, ongoing investigations and personal privacy. Information relating to human rights violations and the Geneva Convention of 1949 cannot be classified. The exempted information can be obtained by the courts, Congress, the General Comptroller, and the Human Rights Ombudsman in some cases.

Appeals can be made to a higher department. Once appeals are completed, the requestor can appeal administratively to the court under Law N° 27444 or under Law N° 26301 for the constitutional right of habeas data. (7)

The Ombudsman can also investigate non-compliance and issue non-binding opinions. (8) The ombudsman is also conducting training and promoting the act. Prior to the act, the office handled many cases informally on access to personal records.

The law also requires government departments to create web sites and publish information on their organization, activities, regulations, budget, salaries, costs of the acquisition of goods and services, and official activities of high-ranking officials. Detailed information on public finances is also required to be published every four months on the Ministry of Economic and Finance's web site.

The government has committed to creating a special commission to develop a data protection act but it has not advanced. (9)

Notes

1. Constitution of Peru, 1993. Available at http://www.asesor.com.pe/teleley/biblioteca/constitucional/5000-in.htm (English) http://www.georgetown.edu/pdba/Constitutions/Peru/per93.html (Spanish)

2. VerExp. N° 1658-95. published in the Diario Oficial El Peruano. "Jurisprudencia". September 4, 1996. pp. 2297.

3. VerExp. N° 263-96. published in the Diario Oficial El Peruano. December 28, 1996. pp. 2698: repeated December 29, 1996. pp. 2748-2749.

4. Ley 27.808 de transparencia y acceso a la información pública, A history of the development of the bill is available at http://www.freedominfo.org/news/peru2/

5. See http://www.freedominfo.org/news/peru2/

6. see http://www.freedominfo.org/news/peru1/

7. Ley N° 26301, Aprueban Ley Referida a la Aplicacio de la Accion Constitucional de Habeas Data, May 2, 1994.

8. Homepage: http://www.ombudsman.gob.pe/

9. Ministerial Resolution No. 094-2002-JUS