By Natalia Torres
Torres is Senior Researcher at the Center for Studies on Freedom of Expression and Access to Information (CELE) in Argentina, and regular FreedomInfo.org contributor. See this article Spanish.
If one were to set out to make a genealogy of the right to know movement in Latin America, the story begins with Policy and Municipal Organization Code that was adopted in Colombia in 1888. The code allowed citizens to request public documents from government agencies unless a law stipulated otherwise.
One hundred twenty-four years later, a new chapter is being added to the story of the right to know: in June, the Colombian Congress approved a bill, the Law on Transparency and the Right to Access National Public Information, which echoes an age-old complaint from civil society.
The situation in Colombia was unique in the region. It wasn’t just the first to have a legal precedent, but it was perhaps one of the few to have the Constitution provide for the right to know10 and boasted two other laws providing for this right, Law 57 of 198511 and the general archive law. Nonetheless, this normative framework turned out to be insufficient and outdated when compared with the progress made in recognizing the right to know in recent years, which prompted the adoption of new legislation.
The project recently adopted by the Congress, which still must be approved by the Constitutional Court to become law, has several aspects that place it within the latest wave of legislation. (Text in Spanish.)
The text emphasizes the importance of policies to manage information to ensure adequate production, systematization and publication of public documents. Along the same line, it requires the establishment of a Program for Document Management (article 15) and the creation of an Information System (article 17). These are, without a doubt, fundamental policies that go beyond a mere policy of access to information to a comprehensive policy of public information management.
However, the law approved by the Congress has also generated significant controversy. Among the aspects that have been criticized is the scope of the obligated subjects (article 5), the scope of reservation for matters related to security (article 5, paragraph 2) or the lack of specificity with which exclusion can be established for those documents produced as during deliberative processes (article 19), among others.12
Article 24 establishes that the Ministerio Público (Attorney General´s office) is “responsible for overseeing adequate compliance with the obligations established by this law.” Article 32 delegates to both the Ministerio Público and civil society the task of training the obligated parties and citizens about the content of the law. Article 33 tasks the Ministry of Education with the support of civil society the responsibility of training on the right to know. Article 34 delegates the design, promotion and implementation of the public policy on access to information to the Executive Secretary of Transparency, the Ministry of Information Technology and Communications, the Administrative Department of Public Service, the National Department of Planning, the National General Archive and to the National Administrative Statistics Department. As we can see, eight government agencies and civil society are all pulled into the task of implemented the law, which is to say the least, an unusual design to give effect to the right to know.
The Organization of American States´ Model Law on Access to Public Information emphasizes two matters related to institutional design: one, that it is imperative to have an agency dedicated to implementing the legislation, and two, that it is exclusive authority of each country to determine the best design for their political system. In this way it affirms that “The institutional framework and apparatus developed for oversight and enforcement of the right to information vary… While the Model Law advances an exemplary system, whereby the oversight and enforcement duties are vested in an Information Commission with more expansive powers, ultimately, the decision regarding which model will function best depends greatly on the specific political, economic and social context and needs of the jurisdiction. Nevertheless, what is increasingly clear is that in order to ensure full and continuing compliance with the law, there is a need for statutorily mandated instruments dedicated to the promotion, monitoring and enforcement of the access to information regime.”13
In this case the Congress has delegated authority to implement the legislation with an unusual scheme. It is difficult to say whether this institutional design is best suited to the organizational reality of the Colombian state. However, an analysis of international experience does confirm that implementations have been most successful when they set up institutes or commissions with large degrees of autonomy and broad powers to guarantee that the content of the legislation is put into practice14.
Entrusting the implementation of a comprehensive policy of information management to seven agencies can generate a major coordination challenge and end up making it necessary to create clear mechanisms to resolve disputes between jurisdictions, powers and duties assigned to each of the agencies. Inter-institutional coordination is likely to be one of the greatest challenges for effective State action. In the case of Colombia, the issue has already been studied15.
International experience has shown that passing legislation is a necessary step, but isn’t enough to guarantee the right to know. Establishing clear responsibilities for an agency with a high degree of autonomy, free of political influence and with the capacity to set and implement related public policies is a critical aspect to put access to information laws into practice16. Colombia has one hundred twenty-four years of experience in critically analyzing public information. The challenge today is to consider the experience of those that have already made progress in implementing laws on access to information to put forward more robust texts and to be able to ensure, without impediments, the right to know.
9 Advocating for the regulation of the right to know was driven mainly by a group of organizations that developed the campaign “More information, more rights.” See the campaign’s website to learn more about the initiative http://
10 “The Constitution provides for a right of access to government records.(1) Article 74 states “Every person has a right to access to public documents except in cases established by law.” Article 15 provides a right of “habeas data” that allows individuals to access information about themselves held by public and private bodies. Article 78 regulates consumer product information, and Article 112 allows political parties the right of “access to official information and documentation”. Article 23 provides for the mechanism to demand information, “Every person has the right to present petitions to the authorities for the general or private interest and to secure their prompt resolution.” (Banisar, 2006).
11 http://www.unal.edu.co/
12 See the following links to learn more about criticisms that have been covered by the press: http://www.eltiempo.com/
http://www.elespectador.com/
http://www.elespectador.com/
http://www.elespectador.com/
http://www.eltiempo.com/
13 The Implementation Guide for the OAS Model Law can be seen here: http://www.oas.org/dil/CP-
14 For more on this matter see: Newman “Modelos de cumplimiento: Contenido y Contexto”, Serie de Documentos de Trabajo, Instituto del Banco Mundial, 2009, http://siteresources.
15 In a study on Mechanisms for Journalists` Protection, CELE undserscored the programs` lack of instiutional coordination. For more on this topic see: http://www.palermo.edu/cele/
16 On this subject see the Implementation Guide for the OAS Model Law: http://www.oas.org/dil/CP-CAJP-2841-10_eng.pdf
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