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Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 2006)

Article 81 of the Political Constitution states:(1)

The state shall guarantee the right, in particular for journalists and social commentators, to obtain access to sources of information; and to seek, receive, examine, and disseminate objective, accurate, pluralistic, and timely information, without prior censorship, on matters of general interest, consistent with community values.
…
Information held in public archives shall not be classified as secret, with the exception of documents requiring such classification for the purposes of national defense or other reasons specified by law.

The Organic Law on Transparency and Access to Public Information (LOTAIP) was adopted on 18 May 2004.(2) The law gives citizens the right to demand public information in any format from public bodies and organizations that provide state services or are publicly owned. The request must be in writing. Bodies must respond in ten days but that can be extended another five days. There is no obligation to create information, conduct evaluations or analysis, or to produce summaries, statistical information, or indices if the information is widely dispersed.

There are exemptions for personal information, national security, national defence including military plans, intelligence, and other information protected specially by other laws. The regulations note that this includes commercial or financial information including information given in confidence; protected commercial, banking industrial or technical secrets, information related to the administration of justice; information on state decision making; if it would cause harm; and information given to the Tax Administration.

Information can be secret for a maximum of 15 years but the duration can be extended if there is continued justification for it. Information currently held as secret that is over 15 years old should be made public. The National Security Council is responsible for the classification and declassification of national security-related information. Congress can also declassify information in special session. Information cannot be classified following a request.

The Ombudsman (Defensoría del Pueblo) is in charge of monitoring and promoting the law. It can hear complaints or make investigations on its own initiative.(3)

Complaints about withholdings can be made to a court by individual requestors. The Ombudsman can also take cases to court. The court can order the release of the information. Appeals of court decisions can be made to the Constitutional Court.

Public bodies are required make information about their activities on web sites including their structures and legal basis, internal regulations, goals and objectives, directories of personnel, monthly remunerations, services, contracts including a list of those who have failed to fulfil previous ones, budgets, results of audits, procurements, credits, and travel allowances of officials.(4) Courts and other bodies are required to publish the full texts of decisions. The Congress is required to publish weekly on its web site all texts of projects of laws. The Electoral Supreme Court is required to publish the amounts received and spent by political campaigns. Political parties are required to publish annual reports on their expenditures.

Public bodies are required to appoint an official to receive and answer requests. Bodies must create registries of documents. They must also make an index of classified information. They are required to adopt programs to improve awareness of the law and citizen participation. University and other educational bodies are also required to include information on the rights in the law in their education programmes.

Public employees who unlawfully withhold, alter or falsify information can be fined one month's salary or be suspended without salary for that period.

The law went into effect in May 2004 but implementation has been slow. Regulations for implementation were released in January 2005.(5) Public bodies have not appointed officials, nor have they created the lists of classified information. A recent report by the Access Initiative found that "Ignorance exists regarding the Law of Transparency and Access to Public Information throughout all levels of local government (municipalities, provincial councils, etc.). There is also a lack of knowledge within civil society about the Law and the citizen's right to public information".(6)

The Law of Environmental Management gives a right to obtain information about environmental harms.(7)

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20 MAY 2004
Ecuador Enacts "Transparency and Access to Information Law"
By Carlos Osorio & Kathleen Costar

Ecuador's Transparency and Access to Information Law was approved by Congress and ratified by the President in May 2004. With refreshing democratic language, the new 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.

The Transparency and Access to Information 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 "Consejo de Seguridad Nacional", an organization heavily influenced by the military, to classify information pertaining to national security. Article 18 further enhances that power for "[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 after more than a year of discussion in Parliament. The final passage was delayed since late 2003 due to objections by the Ecuadorian Armed Forces 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.

Notes

1. Constitución Política de la República de Ecuador de 1998. http://pdba.georgetown.edu/Constitutions/Ecuador/ecuador98.html

2. Ley Orgánica de Transparencia y Acceso a la Información Pública. Oficio N° SGA.0000173, a 11 de mayo del 2004. http://www.aedep.com/paginas/leydere.htm.

3. Homepage: http://www.defensordelpueblo.org.ec/

4. See http://www.mingobierno.gov.ec/leytransparencia.html

5. Reglamento a la Ley Orgánica de Transparencia y Acceso a la Información Pública, N. 2471. 12 Enero 2005. http://www.presidencia.gov.ec/noticias.asp?noid=4169

6. See The State of Access to Information, Participation, and Environmental Justice in Ecuador.

7. Id.

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