Freedom of Expression
5. CHAPTER IV - REPORT ON ACCESS TO INFORMATION IN THE HEMISPHERE (continuation)
Access to information in the Member States: an update of the 2003 Annual Report.
39. The General Assembly of the OAS resolved, in Paragraph 7 of Resolution 2057, entitled “Access to Public Information: Strengthening Democracy,” to instruct the Special Rapporteur for Freedom of Expression to “continue to report on the situation regarding access to public information in the region in the annual report of the IACHR.”[1] Pursuant to this mandate, in an effort to record the developments of the States in this area during 2004, this section of this report will summarize an update of the situation of the Member States in relation to the right of access to information.
40. To this end, on September 7, 2004, and following the procedure adopted for the 2001 and 2003 Annual Report, an official letter was issued to the permanent missions of the OAS Member States, requesting them to provide an update of the information previously received at the Office regarding legislation, jurisprudence, and existing practices related to access to information in their countries within 30 days. The information received from the States has been integrated with research done by media sources and non-governmental organizations in order to provide an overview of the situation in each MemberState.
41. The Special Rapporteur includes in this annual report only the laws that the Member States of the Organization of American States passed during 2004 with respect to the right of access to information. In this account, Ecuador[2] and the Dominican Republic[3] have passed laws related to this right, which demonstrates that the topic of access to information has continued receiving attention during 2004.
42. The Office has received information that other States such as Argentina,[4] Bolivia,[5] Guatemala,[6] Honduras,[7] Nicaragua,[8] Paraguay,[9] and Uruguay[10] are currently considering similar legislation, and civil society has been vigilant in observing the States' progress.
43. Moreover, on September 1, 2004, the State of Panama issued the Executive Decree 335, which repealed Executive Decree 124 of May 21, 2002. The Office of the Special Rapporteur had expressed its concern regarding certain regulatory Articles of Executive Decree 124 in its 2003 Annual Report.[11] The Office also received information that on January 4, 2004 the Jamaican Access to Information Act was brought into effect and is being implemented on a phased basis, its full implementation is expected to be accomplished in July 2005. Currently it is in effect in 20 Ministries and Agencies.
44. As of the deadline given for the Member States to provide the information requested in the official letter issued on September 7, 2004, the Office of the Special Rapporteur for Freedom of Expression has only received information from the States of Colombia, El Salvador, Panama and Peru, out of all the member countries of the Organization of American States. The Special Rapporteur greatly appreciates the efforts of these States in gathering the requested information, and encourages all Member States of the OAS to collaborate in the preparation of future studies by this Office in order to comply with their mandate and to better take advantage of the conclusions derived from them. The Special Rapporteur would also like to notice that all information received after the deadline will be taken into consideration and examined by the Office in due time.
45. As the Office of the Special Rapporteur expressed in previous reports, since 2001 the issue of access to information has created greater debate amongst the civil societies of Member States, and several states have adopted positive measures towards the implementation of this right. However, it is important to insist that Member States need to display greater political willingness to work toward amending their laws and ensuring that their societies fully enjoy freedom of expression and information. Democracy requires broad freedom of expression, and that cannot be pursued if mechanisms that prevent its generalized enjoyment remain in force in our countries.
[1]OAS, AG/RES. 2057 (XXXIV-O/04), para. 6 and 7.
[2] The “Ley Orgánica de Transparencia y Acceso a la Información Pública” was promulgated by the president of Ecuador on May 10, 2004 and was brought into effect through its publication in the Official Registry on May 18, 2004. The Special Rapporteur issued a press release on May 21, 2004 recognizing the promulgation of laws on access to information as an important step to contribute to the transparency of governmental actions. Moreover, the Special Rapporteur stressed that these laws must also be accompanied by regulations and interpretations that are adequate to implementing the law. See: http://www.cidh.oas.org/relatoria/showArticle.asp?artID=129&lID=1. Also, we received information that on October 25, 2004 the final draft of the regulation (“reglamento”) of the law was finished and sent to a number of institutions in Ecuador for their opinion. See: http://www.presidencia.gov.ec/noticias. asp?noid=3825 (in Spanish).
[3] On July 15, 2004, the General Act for Free Access to Public Information (“Ley General de Libre Acceso a la Información Pública”), Act No. 200-04 was passed. The Office of the Special Rapporteur has been reviewing the Act and, although it recognizes the importance of laws on access to information, it is concerned about the requirement to express the motivation in order to request information as established in Article 7(d) of the Act. The Office is aware of a draft regulation for the implementation of the Act and expects that this new legislation adequate the Act to guarantee respect for principles on access to information.
[4] A bill on access to information was approved by the House of Representatives of the Argentinean Congress in May 2003 and sent to the Senate for review. On December 1, 2004 the Senate passed the bill with a few modifications and resent to the House of Representatives for a review of the changes. The House can veto the changes by a special majority of two thirds of the representatives’ votes. The Office of the Special Rapporteur has been reviewing the bill and is deeply concerned about the changes approved by the Senate. Particularly, the Office notes with concern that bill fails to establish publicity as a principle of information by incorporating new exceptions to publicizing information. It also observes that by requiring the applicant to express the reason to requesting the information and by giving the application form the character of sworn declaration, there is a danger of restricting the access to the information. The Office is also concerned about the establishment of fees, which might vary according to the reasons given to access the information and could also restrict the access to information. Finally the Office notices that ambiguity of the concept of public information in the bill, allowing the citizen to request information to any institution that “pursues a public interest, a general utility, a common good or that serve a public function or have public information” (own translation). Accordingly, the ambiguity of the concept could make the law inapplicable or undermine the meaning of a law of access to public information. Also see 2003 Annual Report, Supra 2. para. 62-67.
[5] The Supreme Decree of Transparency and Governmental Access to Information (“Decreto Supremo de Transparencia y Acceso a la Información Gubernamental”), approved in January 2004 is being fully re-discussed due to the criticisms of its lack of amplitude. Moreover, the draft of a bill on access to information, elaborated by the Presidential Anticorruption Delegation (“Delegación Presidencial Anticorrupción”) is in process of consultation and review. See: http://www.redinter.org/inforid/en-foco/1.htm
[6] See 2003 annual Report, supra 2, para. 128-134.
[7] On October 26, 2004, the Legislative Chamber of Honduras, acknowledged the bill on Access of State-held Information elaborated by C-Libre. See: http://probidad.org/index.php?seccion=comunicados /2004/011.html. Also see 2003 Annual Report, Supra 2, para. 135-139.
[8] The bill is currently being studied by the Justice Commission of the National Assembly of Nicaragua. See 2003 Annual Report, supra 2, para. 149-156. Also see: http://probidad.org/regional/index. php?seccion=legislacion/2001/042.html
[9] Inter-American Press Association, Press Release: IAPA keeps watch on regulation and use of laws on effective access to public information, November 5, 2004.
[10] See 2003 Annual Report, supra 2, para. 189-195. Also see: http://probidad.org/regional/index.php? seccion=legislacion/2002/041.html
[11] See 2003 Annual Report, supra 2, para. 163-164.