Freedom of Expression

5 - Chapter IV - Report on Access to Information in the Hemisphere (continued)

            Jamaica

 

140.     An Access to Information Act, approved by the Senate on June 28, 2002, is in the process of being implemented in Jamaica.  The Act provides for the release of government documents but exempts the "opinions, advice or recommendations (and) a record of consultation or deliberations" of civil servants, including Cabinet members, from disclosure.  As part of the Act, an Access to Information Unit within the Prime Minister’s Office has been established to guide the implementation process, and establish a framework for citizens to effectively use the Act.[89]  The implementation of the first phase of the Act was originally scheduled to begin in August 2003, but was later postponed until October 2003.  In September 2003, the government announced that the Senate will not be debating the amendment to the Access to Information Act until the regulations governing its long-awaited implementation have been presented, to ensure that final consideration of the Bill and the regulations take place together.[90]

 

141.     There are a number of available avenues of recourse through which information is made public by law, guaranteeing access by the public, including the press, to files and documents.  These processes refer to the records and documents of the Office of the Registry of Business Enterprises, the Title Registry, and the Registry of Births and Deaths.  The registries of corporate shareholders and business executives are also public.

 

            Mexico 

 

142.     The Political Constitution of Mexicoincludes two provisions concerning access to official information. 

 

143.     Article 6 of the Political Constitution provides that: 

 

The expression of ideas shall not be subject to any judicial or administrative prosecution, provided that it does not offend morals, the rights of third parties, encourage criminal behavior or interfere with public order (…),

 

(…) the right to information shall be guaranteed by the State.


144.     Article 8 of the Political Constitution provides that: 

 

Public officials and employees shall respect the right of petition, provided it is exercised in writing and in a peaceful and respectful manner; with regard to political matters, however, only citizens of the Republic may avail themselves of this right.

 

A written decision shall be issued in response to all petitions by the authority to whom they are addressed; such authorities have the obligation to inform the petitioner of such decisions within a brief period of time. 

 

145.     On June 11, 2002, the Federal Law of Transparency and Access to State Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental) came into force.  This law recognizes and protects the free access to public information held by the three Branches of the Government of the United Mexican States, as well as by the autonomous constitutional organs and any other federal organ.  Pursuant to Article 61 of the Law, each Branch of the Government of the United Mexican States and a number of federal organs submitted regulations to comply with this law.

 

146.     Upon concluding his official visit to the United Mexican States in August 2003, the Special Rapporteur for Freedom of Expression recognized the importance of the promulgation of the Federal Law of Transparency and Access to State Information in achieving greater transparency in government operations and for combating corruption.  However, the Special Rapporteur expressed concern over the perception that the principle of maximum disclosure and transparency set forth in that law was not being strictly followed by either the Legislative Branch, the Judicial Branch, or by certain autonomous constitutional agencies, such as the National Human Rights Commission:

 

As regards the Legislature, it has been noted that regulations for the Chamber of Deputies are different from regulations for the Senate. These regulations were issued separately by each of the Houses. However, the Rapporteur notes preliminarily that they are not complying with certain basic principles that guarantee access to public information, such as the right to appeal to administrative institutions that guarantee their independence, in the event that information is denied by the Chamber of Deputies. Moreover, the Rapporteur heard of instances in which requests for information submitted to the National Human Rights Commission were turned down. The Rapporteur is concerned that this agency for the protection of human rights would interpret the federal transparency law in force in Mexico in a way not in keeping with its own principles.

 

Finally, in the judicial sector, by Supreme Court Decision No. 9/2003, certain provisions wee established to regulate access to information in the possession of that Branch of the Mexican State. From a preliminary analysis, the Rapporteur notes that the interpretation of some of the articles of that decision could jeopardize access to information, since it allows certain information to be considered as confidential in criminal or family proceedings for an excessively long period of time. In the opinion of the Rapporteur, certain criminal matters may involve crimes linked to subjects of keen public interest, such as corruption, and so it is important for the people to have full knowledge of them in a democratic society, without having this entail a violation of fundamental rights or guarantees.[91]

 

147.     The Federal Law of Transparency and Access to State Information set up the ¨Federal Institute of Access to Public Information¨ (IFAI, initials in Spanish), an autonomous entity with the aim of overseeing all aspects of the information process, and guaranteeing the right of access to information and the protection of personal data.  The Institute is empowered to review the cases in which public authorities have denied access to information, and to determine whether the denial was justified in the light of the legal provisions.  On August 12, 2003, the Institute reported that the agencies and dependencies of the Federal Public Administration had received 11,700 requests for information in the first two months of the Law's operation.[92]

 

148.     Several local governments have a law on the right to information, and many are in the process of reviewing and analyzing the adoption of such laws.

 

            Nicaragua

 

149.     Article 52 of the Constitution provides that:

 

Citizens have the right to file petitions, denounce irregularities, and express constructive criticism of the state or any authority, individually and collectively; to obtain a prompt decision and response; and to be informed of the decision within the periods of time established by law.

 

150.     Article 66 of the Constitution provides that Nicaraguans have the right to truthful information and, in exercising that freedom, may seek, receive, and disseminate information and ideas, orally, in writing, in graphic form, or by another medium of their choice.

 

151.     Article 26 of the Constitution provides for the possibility of obtaining all information contained in official files, and the reasons and purpose for which the information is held, when it pertains to the person requesting it:

 

All persons have the right to:

 

1.             Their private life and that of their family.

 

2.             The inviolability of their home, correspondence, and communications of every kind.

 

3.             Respect for their honor and reputation

 

4.             Knowledge of all information about them registered by state authorities, as well as the right to know why and for what purpose this information is held.

 

152.     In early December 2003, the Office of the Special Rapporteur received information that a bill on Access to Information had been recently presented before the National Assembly of Nicaragua.  The bill would guarantee the right of citizens to gain access to documents, files and databases held by the organs of the State, as well as by private institutions which administer public goods (Article 1 of the bill).  This information is considered to be a “public good” available to whomever requests it as provided by the bill (Article 2 of the bill).  The bill further provides for the setting up of Access to Information Offices in every State institution subject to the bill, with the aim of facilitating access to information.

 

153.     In Nicaragua, the right of access to information has been made difficult by restrictions imposed by provisions such as the ones from the Penal Code, which make it a criminal offense to reveal state secrets and official information (Articles 538 and 540).  Information is classified as “very secret”, “secret”, and “confidential” (Article 540).  All information originating from sources within the government as a direct result of the conduct of official business is considered “official information” and its disclosure is subject to limitations guaranteeing the security of national defense.

 

154.     Article 1 of the Law Regulating Information on Internal Security and the National Defense of 1980 (Ley para Regular las Informaciones sobre Seguridad Interna y Defensa Nacional de 1980) provides that the media may not disclose news or information compromising or undermining the country´s internal security or national defense.

 

155.     This provision includes the communication of information or news on such matters as armed conflict, assaults on government officials, etc. without first reliably verifying such information or news with the Government Council on National Reconstruction (Junta de Gobierno de Reconstrucción Nacional) or with the Ministry of Interior or Defense.

 

156.     As indicated in the section on international provisions on the public right to state-held information, the use of broad language to restrict access to information on grounds of national security could give rise to abuses of discretional authority by state agents.

 

            Panama

 

157.     Panama does not have a constitutional clause expressly guaranteeing the right to access information. However, Article 41 of the Constitution of Panama does contain a clause establishing the right of petition, which can serve as the basis for petitions filed seeking public information:

 

Everyone has the right to file petitions and respectful complaints to public servants, for motives of private or social interest, and the right to receive a prompt resolution of the matter.

 

The public servant with whom a petition, inquiry or complaint is filed shall resolve the matter within thirty days.

 

The law shall stipulate the punishments for those who violate this provision.

 

158.     With respect to legal provisions, Law 36 (5/6/1998) reinforces the provisions concerning the right to petition, and Article 837 of the Administrative Code explains that:

 

All individuals have the right to receive copies of documents existing in the secretariats and archives of administrative officers, provided that: the documents are not classified; the person requesting the copy provides the necessary paper and pays the fees specified in Book 1 of the Judicial Code; and that the copies can be removed under the inspection of an employee of the office concerned, without interfering with his work.

 

159.     The constitutional provision on the right to petition is regulated by Law 15 of 1957, which provides that officials who do not respond to a petition within 30 days shall be punished with a fine of $10 to $100 the first time and double that amount for subsequent occurrences.  Officials who fail to respond on more than three occasions are to be dismissed.

 

160.     In cases in which the petition is denied, the Administrative Law Judicial Proceedings Act (Ley Orgánica de la Jurisdicción de lo Contencioso Administrativo) establishes the procedure to be followed during the course of administrative proceedings, which includes the following avenues of recourse: the recourse for reconsideration, filed with the administrative official of the first instance for clarification, modification, or rescission of the decision; the recourse of appeal to the immediate supervisor, for the same purposes; and those indicated in the Judicial Code.

 

161.     There are legal criteria for classifying state information as restricted (Articles 834 and 837 of the Administrative Code).

 

162.     On January 22, 2002, Law No. 6 on transparency in government was enacted.  This law provides that every individual or juridical person has the right to request information from government bodies and the official concerned has 30 days to provide such information.  The official's failure to comply entails a fine or dismissal.  The law sets out nine cases of “restricted access”, among them those having to do with information on national security and cases under investigation by the Public Prosecutor's Office.[93]

 

163.     On May 21 of 2002, the Executive Branch approved the Regulatory Decree 124, which regulates Law No. 6.  On August 9, 2002, Panama’s Human Rights Ombudsman (Defensor del Pueblo) filed a legal suit seeking repeal of Articles 4, 5, 8, 9 and 14 of the Decree.  The Special Rapporteur for Freedom of Expression expressed his concern regarding certain regulatory articles of the Decree.  In particular, referring to Article 8 of the Decree, which provides that an “interested person” for purposes of Article 11 of Law No. 6 is “a person who has a direct personal interest in the information he or she is requesting,” the Special Rapporteur expressed that "this article is inconsistent with the purposes of the law and international standards on access to information, as any person should be entitled to exercise this right."[94]

 

164.     The Office of the Special Rapporteur for Freedom of Expression received information regarding the presentation before the Legislative Board of a proposal for reform of Law No. 6.  The Special Rapporteur values this effort, and recalls his comments in the Report of the Special Rapporteur for Freedom of Expression on the situation of Freedom of Expression in Panama, where he recommends that the adoption of internal legislation be brought into line with the American Convention on Human Rights and the jurisprudence of the Inter-American System.[95]

 

            Paraguay 

 

165.     The Forum for Freedom of Expression of Paraguay has informed that Article 28 of the National Constitution guarantees the right of every citizen “to receive truthful, responsible and impartial information¨ and further establishes that ¨the public sources of information are of free access to anyone”. 

 

166.     In spite of the Constitution's provision that laws would regulate the exercise of the above precept, a regulatory regime to this effect has not yet been adopted.

 

167.     Paraguay's Criminal Code, Law No 1682/01 and Law No. 1626 establish restrictions to the free disclosure of information, in that they do not make a distinction between the public and private spheres to set limitations on publication and demands of publicity to the communications media and journalists.  

 

168.     In September 2001, the Executive Branch repealed Law 1729 on Administrative Transparency and Free Access to Information (Transparencia Administrativa y Libre Acceso a la Información).  The law had been approved in July 2001 for the purpose of promoting transparency in government and ensuring access to information.  However, this law provoked national and international protest, since it contained several articles imposing restrictions on the right of the press to access official documents.

 

169.     The Forum for Freedom of Information of Paraguay has informed that there is a bill awaiting consideration by Congress on the subject of free access to public information.

 

           


            Peru

 

            170.     The right to information is set out in Article 2.5 of the Constitution of Peru, which states that every person has the following right:

(…) To request, without the need to express the reason, the information needed, and to receive it from any public entity, within the period of time established by law, provided the payment of the fee associated with such request.  The following information is not included by this Article: information that affects privacy and that information specifically excluded by law or by reason of national security.  Bank and fiscal secrecy can be lifted by a judge or investigative committee of the Congress, according to the law and as long as they refer to the case under investigation.

171.     On August 2, 2002, Peruvian President Alejandro Toledo formally promulgated the Law of Transparency and Access to Public Information (Ley de Transparencia y Acceso a la Información Pública), which was then published on August 3, 2002 in the official government daily El Peruano.  Only minor changes had been made to the second draft of the law, which had been approved by the Peruvian Congress in July. While this law represents a major advance for the right to information, attention has been drawn to Article 15 of the law, which refers to the exceptions of the Law that grant the Executive authority to classify information as "secret and strictly secret" for reasons of national security, as this procedure would grant the ministerial cabinet, an entity eminently political, the power to classify information as secret.[96]

 

172.     On August 6, 2003, the regulatory decree for the Law of Transparency and Access to Public Information came into force.  This regulation was promoted by the Commission created by the Law to give compliance with the provisions set out therein.

 

            Suriname

 

173.     The official response from Suriname to the questionnaire sent by the Special Rapporteur points out that Article 158 of the Constitution of Suriname states that:

 

1.             Everyone shall have the right to be informed by the organs of government administration on the advancement in the handling of cases in which he has a direct interest and on measures taken with regard to him.

 

2.             Interested parties have access to the courts to have them judge the unjustified character of any final and executionable act by an organ of governmental administration.

 

3.             In disciplinary procedures the right of interested parties to reply shall be guaranteed.


 

174.          In addition, Article 22 of the Constitution provides that:

 

1.             Everyone has the right to submit written petitions to the public authorities.

 

2.             The law regulates the procedure for handling them

 

175.          The official response from Suriname also points out that Constitutional Law and Administrative Law of the State provide that the government is obligated to publish certain information in the official publications.  This information pertains to laws, regulations, decrees and other decisions, as well as requests for licenses for trade, commerce, and other activities.

 

176.          Non-governmental organizations in Surinamefrequently organize general campaigns to educate or inform the general public, particularly in the sectors in which they operate (e.g., labor, women, children, health), on the right to free access to information.

 

            Trinidad and Tobago

 

177.          In its response to the questionnaire sent by the Special Rapporteur in 2001, the Government of Trinidad and Tobago cited general constitutional provisions that serve to protect freedom of information, such as "freedom of thought and expression," or "the right to express political opinions."  Immediately afterwards, however, it recognized that the Constitution of Trinidad and Tobago does not contain provisions recognizing free access to state-held information.  Nor are there judicial precedents in this area, or in the area of habeas data

 

178.          In the absence of specific legal provisions in this regard, reference was made to recognition of the Freedom of Information Act as the applicable legal provision:

 

All persons shall have the right to obtain access to official documents.

All persons are legally entitled to request information from various government agencies.

 

179.          The procedure for requesting and obtaining information is free of charge, unless copies in printed form or other information storage formats, such as diskettes, tapes, etc., are requested.

 

180.          If the information is denied, the requesting party must receive written notification, affording him the reasonable opportunity to consult with a government representative, who is required to provide the requesting party with the information needed to continue the procedure and renew the request.  The reasons for denying the information must also be given to the requesting party, who must be informed of his right to appeal the decision to the High Court. 

 


            United States

 

181.          In 1966, the United States approved the Freedom of Information Act (FOIA), which requires federal agencies to offer access to documents of public interest.  Exceptions to the Freedom of Information Act include the following: information on national security, the internal regulations and policies of government agencies, matters specifically exempt from disclosure by statute, trade secrets, and other secret information pertaining to business, letters and memorandums between government agencies and individuals, personnel files and medical histories, bank information, police files, and geological and geophysical information.

 

182.          The reach of statutory exemptions provided by the Freedom of Information Act (FOIA) has been expanded with new exemptions and statutory allowances for certain security-related information.  A "critical infrastructure" exemption could limit public access to health, safety, and environmental information submitted by businesses to the government.[97]  

 

 

183.          In addition to the Freedom of Information Act (FOIA) at the federal level, each of the 50 states has laws guaranteeing access to the official documents of state, county, and municipal agencies.

 

184.          The Privacy Act of 1974 also prohibits federal agencies from revealing information about a person without his or her written consent, unless cited by the Freedom of Information Act as the type of information that must be disclosed.[98]

 

185.          In addition to laws providing access to files and documents, other laws, known as "open meetings" or "sunshine" laws, require state and local agencies to make most of their meetings open to the public.

 

186.          The Government in the Sunshine Act of 1976 applies to all federal agencies.  All agency meetings must be open to the public, unless the law provides otherwise, such as when personal matters are being discussed.  For all agency meetings covered by this law, the agency in question must notify citizens through a public announcement and publication in the Federal Register, at least one week in advance, as to the time, place, and subject of the meeting, as well as the name and telephone number of a contact person for additional information.[99]

 

 

187.          Executive Order 13292 (E.O. 13292), issued by President Bush on March 28, 2003, also promotes greater government secrecy by allowing the executive to delay the release of government documents; giving the executive new powers to reclassify previously released information; broadening exceptions to declassification rules; and lowering the standard under which information may be withheld from release - from requiring that it "should" be expected to result in harm to that it "could" be expected to have that result.  In addition, E.O. 13292 removes a provision from the previously operative rules mandating that "[i]f there is significant doubt about the need to classify information, it shall not be classified."  In essence, this deletion shifts the government's "default" setting from "do not classify" under the previous rules to "classify" under E.O. 13292.[100]

 

188.          According to the National Archives and Records Administration, the number of classification actions by the Executive Branch of the United States rose 14% in 2002 over 2001 and declassification activity fell to the lowest level in seven years.[101]

 

            Uruguay 

 

189.          There is no provision in Uruguay that requires the state to disclose information, or legal or judicial mechanisms obliging the state to provide information. 

 

190.          The official response to the questionnaire furnished reveals that there are several provisions that prohibit the disclosure of information related to professional, banking, and personal data.[102]

 

191.          There are two bills under consideration for regulating access to information awaiting their approval by the Uruguayan Parliament. 

 

192.          One of the bills was presented by the opposing party, and approved by the House of Representatives in October 2002.  The bill regulates the right of any person to consult or request copies of the administrative acts issued by governmental bodies or public entities, whether national or departmental.  This action only necessitates the presence of the interested party when the information requested might affect his right to privacy.[103]

 

193.          Article 11 of this bill regulates the action of habeas data, and stipulates that the action may be brought by the petitioner after 15 days have elapsed since the resolution that denies the disclosure of the requested information, and after the passing of 45 days since the request was made.[104]

 

194.          In June 2003, two senators from the National Party presented a bill for the protection of personal data of a commercial nature.  This bill establishes the admissibility of the action of habeas data brought before any entity in charge of a public or private database under the following conditions:

 

a)            that the interested party wishes to obtain information regarding his personal data and this information was not provided by the entity responsible for the database.

 

b)            when the rectification or elimination of personal data has been requested, and the entity responsible for the database has failed to carry out the requested action.

 

195.          The official response of Uruguaydeclares that the wide majority of the jurisprudence on access to state-held information has recognized the right of the individuals to access state-held personal information, following the precedent of the Supreme Court on the matter.  In the case LJ U 13.994 of 1999, the Supreme Court said that objective criteria must be used to determine when information is of public interest, regardless of the person involved being a public figure, and further stated that ¨freedom of information contributes to public opinion, which is inherent to every democratic system.¨[105]

 

            Venezuela

 

196.          Article 28 of the Constitution, reformed in 1999, provides:

 

All persons have the right of access to information and data held in government or private files referring to them or to their property, except where the law provides otherwise; to know why and for what purpose the information is kept; and to file requests before the competent court for the updating, rectification, or destruction of information that is erroneous or that illegitimately affects their rights.  They may also obtain access to documents of any kind containing information of interest to communities or groups of individuals.

 

197.          Article 51 of the Constitution establishes the right to submit petitions to the authorities.  According to this provision, all persons have the right to address petitions to any authority or public official on matters within their purview and to obtain a timely and adequate response.  Violations of this right are punishable by law and can result in dismissal.


 

198.          Article 6 of the Organic Law on Public Administration (Ley Orgánica de Procedimientos Administrativos) of 2001 establishes that:

 

            The Public Administration will carry out its activities and shall be organized in such a way that citizens:

 

May resolve their issues, be assisted in the formal drafting of administrative documents, and receive information of general interest by telephonic, electronic, and telematic means (…)

 

May easily access up-to-date information regarding the organizational structure of organs and entities of the Public Administration, and the services provided by them.

 

199.          Article 7 of the Organic Law on Public Administration further provides that citizens shall have the following rights:

 

6.             To obtain information and guidance regarding the legal or technical requirements imposed on projects, proceedings or requests that citizens may wish to undertake

 

7.             To access the archives and records of the Public Administration in the terms provided by the Constitution of the Bolivarian Republic of Venezuela and the law (…) 

           

200.          The Organic Law on Administrative Procedures (Ley Orgánica de Procedimientos Administrativos) of 1981 provides the following:

 

Article 2.  Every interested person may, by himself or by means of his representative, address requests to any organ, entity or administrative authority.  These shall decide on the requests, or state the reason for their failure to do so.

 

201.          Article 59 of the Organic Law on Administrative Procedures also provides for public information or access to government sources for interested parties or their representatives.  However, documents classified as confidential are exempt.

 

202.          The 2003 Law Against Corruption (Ley contra la Corrupción) also establishes in its Articles 8, 9 and 10 the right of the citizens to access information regarding the administration of the public patrimony of state organs. 



[89] David Banisar, The www.freedominfo.org Global Survey, Freedom of Information and Access to Government Record Laws around the world, 28 September 2003, available at http://www.freedominfo.org/survey/survey2003.pdf ; International Press Institute: 2002 World Press Freedom Review, available at: http://www.freemedia.at/wpfr/world.html.

[90] Jamaica Gleaner, 4 October 2003, available at: http://www.jamaica-gleaner.com/gleaner/20031004/ news/news1.html.

[91] Office of the Special Rapporteur for Freedom of Expression, Press Release 89/03.

[92] IFAI/006/03 (Mexico), 12 August 2003, available at: http://www.ifai.org.mx/textos/gaceta/comunicado06-120803.pdf.

[93] Inter-American Press Association, Press Release February 5, 2002, available at  http//www.sipiapa.com/pressreleases/srchphrasedetail.cfm?PressReleaseID=561.

[94] See Report of the Special Rapporteur for Freedom of Expression on the situation of Freedom of Expression in Panama, OEA/Ser.L/V/II.117, Doc. 47, 3 July 2003,Original: Spanish.

[95] Id.

[96] Freedominfo.org, Peru´s new freedom of information law, posted August 8, 2002, available at: http://www.freedominfo.org/news/peru2/.

[97] Report of the Lawyers Committee for Human Rights: Assessing the New Normal: Liberty and Security for the Post-September 11 United States; available at: http://www.lchr.org/pubs/descriptions/Assessing/AssessingtheNew Normal.pdf.

[98] 5 U.S.C. §522a(b)(2).

[99] 5 U.S.C. §552b.

[100] Report of the Lawyers Committee for Human Rights: Assessing the New Normal: Liberty and Security for the Post-September 11 United States, supra, note 94.

[101] Id.

[102] See Code of Organization of Tribunals (Article 207), Code of Children (Article 40), Law N° 4.056 of 1912 (article 13), Law No. 10.674 of November 20, 1945 (Article 6), Law No. 13.711 of November 29, 1968, Law No.14.068 of July 10, 1972, Decree No. 14.294 of October 31, 1974, Decree No. 15.322 of September 17, 1982, Decree No. 94/983, Law No. 16.320 of November 1, 1992.

[103] Probidad, Ley sobre derecho a la información y acción de hábeas data, available at: http://probidad.org/regional/legislacion/2002/041_a.html

[104] Id.

[105] Supreme Court of Uruguay, LJ U 13.994 of 1999, para. V.