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20
MAY 2004 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.
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