By Martha Farmelo and Mariela Belski
Martha Farmelo is Coordinator of the Freedom of Expression Program and Mariela Belski Coordinator of the Access to Public Information Program at the Buenos Aires-based Association for Civil Rights (www.adc.org.ar)
Which is preferable, a severely flawed national access to information law, or no law at all? Freedom of information activists in Argentina had the “luxury” of debating that unfortunate question until November 30, 2005, when the Argentine access to information bill lost parliamentary status, sending the campaign one humongous step backwards.
In 2001, the federal Anti-Corruption Office had convened a number of civil society organizations, business persons, journalists, legislators, and others to work on a draft access to information law. The result was a bill approved by the lower house of Congress in May 2003 that both respected international standards for freedom of information legislation and enjoyed remarkably wide consensus and support.
Then in December 2004, the Senate approved a new bill containing several problematic modifications introduced by the Commission for Constitutional Affairs, headed up by none other than Peronist Senator Cristina Fernández de Kirchner, President Néstor Kirchner’s wife. For example, this bill required information requestors to fill out a form that is the equivalent of a sworn statement, with personal information such as a document/ID number and nationality, and the motive for their request.
It also expanded the scope of those required to provide information upon request to include private businesses and organizations that hold information of “general interest”-and to divulge all of their information, not just the apparently “public information” they may hold. Not surprisingly, many in the media reacted by taking distance from the issue, especially after a Senate colleague and ally of Cristina Kirchner suggested that media outlets would be subject to the law if they received government advertising, deceitfully described as a government subsidy.
The Peronist-dominated lower house had until late 2005 to adopt the bill in its original form or with the Senate’s modifications. Approval of the original bill would have required a practically impossible-to-achieve two-thirds vote, leaving the core group of six NGOs that had collaborated over several years to promote the law divided as to whether to push for a vote and risk passage of a dreadful law (the arguments included that a bad law is better than no law; if no law is passed, it would be years before we can progress to where we are today; and we can always litigate the statute’s unconstitutionality), or remain passive and let the law die in silence (in sum, better no law at all than be stuck with such a bad one). In the end, when neither version was approved, the bill lost parliamentary status.
Given the Kirchners’ hold on the current Congress, it is unlikely that any proposal that contrasts with the Senate-modified version of 2005 will move forward. Still, two bills have been presented by the opposition, one of which is fairly similar to the house-approved version that had enjoyed such wide consensus and support, while the other represents a mix of the house-approved and the Senate-modified versions. However, activists are concerned that the Senate-modified version may again be presented, and prosper.
Meanwhile, existing provincial and municipal statutes and a 2003 access to information decree that applies to the national executive branch are entirely underutilized. The Association for Civil Rights and others have been working to help government officials implement these statutes and to involve businesses, journalists, students, researchers and civil society organizations in requesting information. As a wider spectrum of actors become aware of and exercise their right to access public information, Argentina will be better prepared to take the next step forward in its access to information campaign.
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