By Natalia Torres, CELE´s Senior Researcher
Articles on freedom of information in Latin America, written by the Center for Studies on Freedom of Expression and Access to Information (CELE) in Argentina, will be a regular feature in FreedomInfo.org. See this article Spanish.
On June 9 and 10, the International Seminar “Inter-American Model Law on Access to Information and its application in the Dominican Republic” was held in Santo Domingo.
The seminar – organized by the Organization of American States, the World Bank, the Foreign Affairs Ministry, the House of Representatives among other local institutions with the support of the Canadian International Development Agency (CIDA) – aimed to present the main aspects of the model legislation and to contribute to the debates regarding possible reforms to the FOI legislation in the country.
Many issues were analyzed during the seminar, such as: the structure and content of the model law, the FOI legislation in the Dominican Republic, the tools for the diffusion of FOI legislation and the main developments in the studies of personal data. CELE presented the first draft of one of its latest research.
Out of all the debates that took place in each panel, the discussion that raised the most attention was that one pertaining to the adaptation of the local legislation to the standards set in the model legislation.
Dominican Law Below International Standards
The Congress of the Dominican Republic passed the FOI Act in 2004, setting a milestone in the recognition of the right to know in the country. FOI advocates know that there is no perfect law on these matters, but the deficiencies in the Dominican text put the legislation below the international standards. One article of particular concern is article 7 that demands motivation as a requirement for any request of information.
The model law on the other hand is precise on this matter and establishes in its article 5 that: “Any person making a request for information to any public authority covered by this Law shall be entitled, subject only to the provisions of Part IV of this Law: … to make a request without providing justifications for why the information is requested.”
Karina Banfi, the Executive Secretary of the Regional Alliance for Freedom of Expression and Information, said: “The interest and persistence of public officers to debate on this matter was striking, particularly regarding the concept of the property of public information possessed by the government, because if the information is public then it belongs to everyone, therefore becoming irrelevant the justification of knowing details on the use of personal data. Moreover, if we consider proactive disclosure as an obligation of the states, what is the need to know the motivation of the person who asks for information? The Dominican Republic needs to study more in dept the basic standards that will allow the strengthening of its democracy and the improvement of the legislation in accordance to the international advances regarding transparency and human rights.”
Another issue of concern was the lack of an authority in charge of the implementation of the legislation.
On this, the model law clearly states the need to have a specific body, independently of the institutional design chosen for the enforcement of the legislation. The Guide for the Implementation of the Model Law states: “In instituting a functioning access to information regime, it is critical to pay great attention to the oversight and enforcement mechanisms and to the establishment of tools for determining effectiveness of the system.
A national oversight agency monitors and supports implementation of the access to information legislation; may set policy and offer recommendations; assures consistency among agencies; promotes the right of access to information; and can provide requisite training and capacity building for key civil servants as well as lead campaigns to promote public awareness and understanding of the right of access to information law.”
How to overcome the lack of body of implementation was at the center of the debate: while some public officers insisted on the adequacy of the actual legislation and no need of reform, others preferred to promote a new and specific legislation for the creation of an authority of implementation.
This initiative, worthy indeed, forgets the need to reform the legislation in accordance to the Inter-American standard not only regarding the authority of implementation but also on the requirements of the request, specially regarding its requirement of motivation.
On this, Banfi stated: “The laws passed before the case Claude Reyes vs. Chile (2006), the principle of the Interamerican Judiciary Committee (2008) and the Inter-American Model Law on Access to Information (2010), among other international instruments, demand the update of the legislation. The reform of the laws needs to be considered as natural and necessary for the improvement of the exercise of fundamental rights and the modernization of public administration.”
The two-day seminar, the second organized in the context of the activities for the diffusion of the Inter-American Model Law, concentrated the main discussion over the implementation of the legislation. During two days, this forum showed the relevance of thinking globally and acting locally.
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