|
20
MAY 2004
Ecuador
Enacts 'Transparency and Access to Information Law'
By
Carlos Osorio and Katherine Costar
With
refreshing democratic language, the new Ecuadorian
Transparency and Access to Information 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.
Approved
by Congress early this month and ratified on May 18 by the
President, the 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 Army's "Consejo de Seguridad Nacional" to
classify information pertaining to national security. Article
18 enhances that power, stating that "[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 on May 4 after more than a year
of discussion in Parliament. The final passing was delayed
since late last year due to objections by the Ecuadorian
Army 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.
Registro
Oficial de Ecuador - Ley Organica de Transparencia y Acceso
a la Información Pública (PDF - 258 KB)
Back
to top
|
