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TABLE OF CONTENTS Topic Page i. ii. iii. PART 1: 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. 1.7. 1.8. 1.9. 1.10. 1.11. 1.12. 1.13. 1.14. 1.15. 1.16. 1.17. 1.18. 1.19.

Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Access to Information Summary Table and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open and Open Government Government Government Government Government Government Government Government Government Government Government Government Government Government Government Government Government Government Partnership in Argentina Partnership in Bolivia Partnership in Brazil Partnership in Chile Partnership in Colombia Partnership in Costa Rica Partnership in Ecuador Partnership in El Salvador Partnership in Guatemala Partnership in Honduras Partnership in Mexico Partnership in Nicaragua Partnership in Panama Partnership in Paraguay Partnership in Peru Partnership in Dominican Republic Partnership in Uruguay Partnership in Venezuela Abstract Structure and Work Methodology Survey Format

PARTE II. 2.1 Alianza Regional por la Libre Expresión e Información and International Transparency in the Americas: Our Open Government Partnership and its Importance 2.2 Open Government Partnership: Lessons and Experiences from Promoters of the Right to Access of Information in Africa

i. ABSTRACT Karina Banfi

Alianza Regional por la Libre Expresión e Información
Executive Secretary

“Open Government Partnership: Access to Information as a Right + Open Government as a Public Transparency Policy + Open Data as a Tool”1
SABER MAS is a regional report that has been published and disseminated for 4 years by Alianza Regional por la Libre Expresión e Información. These reports contain a diversity of views of members within the network, based on their experience and knowledge in the course of the promotion, implementation and defense of access to public information. In this opportunity, we introduce the fourth edition, which discloses government commitments toward access to information under the Open Government Partnership (OGP). It is a global effort aimed at achieving concrete commitments from governments toward increasing transparency, fighting corruption, and making use of technology to strengthen government procedures and scope for making information available to the public. The aim is for governments to commit to improving quality management through standards of transparency and access to public information. In turn, this initiative is complemented by civil society as a key actor in the process of building open government. Civil society is convened for the purpose of promoting the quality of information on governance, through dialogue and participation. In Part I, this issue of the SABER MAS report describes the work carried out by member organizations and details the various and particular situations experienced by organizations focusing on the promotion of access to information in each of their countries. We have invited two international organizations to participate in Part II. On the one hand, Transparency International, whose report by Zoe Reiter –regional coordinator of the Americas Department– highlights the transparency processes and describes the role of civil society and networks under the OGP. On the other hand, the Secretariat of the Pan-African Conference on Access to Information (AFIC - Africa), whose analysis of the

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situation in Africa, by Gilbert Sendugwa –head of the Secretariat– reveals the process and challenges for achieving civil society involvement in Africa. Civil society has developed control mechanisms and strengthened its capacity to influence laws that promote access to information and accountability. Therefore, recent progress is mainly the result of contributions from this sector. In the Americas, the approval of 12 laws on access to public information2 was achieved through processes in which civil society played a leading role. Thanks to local advocacy groups, comparative experiences and international support grew in many countries, thus generating mechanisms that collaborated toward the modernization of States. The OGP works toward achieving government compliance in the form commitments undertaken through national Action Plans, while assisting in the evaluation and implementation of independent reports (under the framework of the Independent Review Mechanism). It is essential for these plans to be developed with input from multiple actors, with active public participation. Best practices are needed, especially in countries that are not yet part of this initiative. The experience of civil society on the pursuit, promotion and defense of access to information, coupled with the use of technologies, is a conditioning factor for governments in the development of open system policies.

Alianza Regional is a network that brings together 22 organizations from 19 countries 3
whose main objective is to strengthen the skills and knowledge of member organizations to make interventions to improve conditions for accessing information and freedom of expression in their countries. Therefore, in the framework of the OGP, Alianza Regional provides information to its members to facilitate the processes of inclusion and participation. We appreciate the participation of all member organizations who contributed their assessment of the local and specific arena. We also thank guest organizations for their cooperation and support. We would particularly like to thank the experts who participated in the Peer Review Process of this report: Elisabeth Ungar from Transparency Colombia, Miguel Pulido from Fundar - Mexico and Moisés Sánchez from Fundación Proacceso de Chile. Their experience and knowledge have enriched the results of this paper. Thank you very much to all.

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1. Acción Ciudadana (AC) - Guatemala 2. Artículo 19 - Brazil 3. Asociación de Periodistas de El Salvador (APES) - El Salvador 4. Asociación Nacional de la Prensa (ANP) - Bolivia 5. Asociación por los Derechos Civiles (ADC) - Argentina 6. Centro de Archivos y Acceso a la Información (Cainfo) - Uruguay 7. Comité por la Libre Expresión (C-libre) – Honduras 8. Consejo Nacional de Periodismo (CNP) - Panama 9. Fundación Democracia sin Fronteras - Honduras 10. Fundación para la Libertad de Prensa (FLIP) - Colombia 11. Fundación Salvadoreña para el Desarrollo Económico y Social (FUSADES) - El Salvador 12. Fundación Violeta Barrios de Chamorro (FVBCH) - Nicaragua 13. Fundamedios - Ecuador 14. Fundar. Centro de Análisis e Investigación - Mexico 15. Instituto de Derecho y Economía Ambiental (IDEA) - Paraguay 16. Instituto de Prensa y Libertad de Expresión (IPLEX) - Costa Rica 17. Instituto Prensa y Sociedad (IPYS) -Peru 18. Participación Ciudadana (PC) - Dominican Republic 19. ProAcceso - Chile 20. Transparencia por Colombia - Colombia 21. Transparencia Venezuela – Venezuela 22. Trust for the Americas - United States of America

ii. INTRODUCTION AND WORK METHODOLOGY Silvana Fumega Specialist in Access to Public Information and Open Government Although there is some consensus on the notion of “Open Government”, there is no such thing as an unambiguous definition. In general terms, one can say that the concept refers to the ability of the public to subject the actions of government to scrutiny, with the opportunity to participate in the design and implementation of public policies. In the last five years, with the emergence of numerous initiatives in the area, the concept has been popularized.4 All Open Government initiatives have a common ingredient: public access to relevant information in order to achieve greater transparency as well as effective participation and collaboration. That is why the right of Access to Public Information (API) is essential when thinking about Open Government. The creation of the Open Government Partnership (OGP) constitutes an example of the initiatives in the area. This Partnership seeks to obtain concrete commitments from governments in relation to the above objectives as well as to take advantage of new technologies to strengthen governance.5 It is worth noting that during the last decade, not only has there been progress in relation to the exercise of the right of access to public information (API), but there have also been significant changes in terms of Information and Communication Technologies (ICT) that have facilitated interaction, collaboration, and information sharing. Therefore, citizens, today, not only have the right of access to information on government activities, but are also the ability to use the data obtained. The evolution of ICT has

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The concept of open government is not new. The notion of openness as related to that of transparency (whether they are synonyms or not) can be traced back to the Enlightenment with Rousseau's “Considerations on the Government of Poland” and the enactment of the first law of access to information adopted by the Swedish Parliament in 1766. In the late twentieth century, the concept of “Open Government” was reintroduced in several government documents, such as the Danks Report in New Zealand in 1980 and the White Paper Report of 1993 by the UK Government: “Open Government”, among others. At the beginning of the century, the OECD provided a definition of the concept of open government as governments who are willing to listen to the people (and companies) and accept their suggestions in the design and implementation of policies. OECD (2003). Open Government. Fostering Dialogue with Civil Society. Paris, France, OECD. 5 For more information visit: http://www.opengovpartnership.org/

enabled the dissemination and use of numerous data and information that would otherwise have remained unexplored. The importance of civil society’s contribution in the ICT adoption process for promoting transparency and accountability is undeniable. Thus, civil society organizations, which focus their actions in these areas of work, need to incorporate these new tools into their more traditional approaches as well as to establish a more effective dialogue with citizens who are able and willing to join their efforts (Transparency International 2009). 6 In this regard, it should be noted that organizations who have traditionally promoted access to information, in general, have not yet managed to effectively incorporate the use of technologies in their work strategies. In addition, in many cases, issues such as access to data in reusable formats –which is key to transparency in the public sector– have not yet been incorporated in the line of work of these organizations. Therefore, the aim of SABER MAS IV is to reveal the relationship between the exercise of the right of access to information and the concept of open government in the region. In particular, the relationship between the right of access to information in each of the member countries and their participation in the Open Government Partnership,7 as well as to explore the level of knowledge of organizations in the region with respect to emerging developments in the area of proactive publication of data in reusable formats (made possible by the technological advances mentioned above). Each of the organizations that make up Alianza Regional por la Libre Expresión e Información have based their reports on a common questionnaire (discussed in the next section), which has been designed to reflect the commitments (or lack thereof) made by countries in the region with regard to open government, and the role of civil society in the development of these commitments and subsequent compliance.

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Transparency International (2009). Anti-Corruption 2.0: What’s your say on corruption? Berlin. “Of the 55 countries that currently make up the OGP, 14 are American. Of these, to date, nine

have pending action plans and commitments, whose compliance assessment in the first phase should be developed soon, while the other 5 are currently under development, realization and/or execution phase, depending on each case.” Ramirez Alujas, Á. (2012). Open Government: The Emperor's new garnments?
The paradoxes of an ongoing paradigm and its reflection in Latin America. Studies/Working Papers, Instituto Universitario Ortega y Gasset.

iii. Survey Format This survey was the tool used to collect data for this report. “WORLD DAY OF ACCESS TO INFORMATION”

ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) Instructions for completing the questionnaire: The objective of this proposal is for each of the organizations that make up Alianza Regional por la Libre Expresión e Información to develop a report about the status of the commitments of member countries of the Open Government Partnership (OGP) regarding the right of access to public information. In order to have complete and comparable accounts, each organization must answer the questions in the questionnaire below. Each question should be answered with a brief description. It is important to clarify that each account must focus on the right of access to public information. The report must be accompanied by annexes (or footnotes) in reference to data and sources used to provide the basis for the account provided in the document. Country: Questionnaire: 1. Access to Public Information:
a. Is there a norm (law or decree) regulating the exercise of the right of access to

Organization:

public information (API) in your country?
b. What are the main features and scope of those regulations? (Brief) c. What have been the main achievements and/or shortcomings in terms of access

to public information in your country, since Saber Mas III? (September 2011 to present) Briefly describe what has been the role and/or response of civil society before these achievements and/or shortcomings, in terms of legislation, judicial response and/or implementation. 2. OGP Membership
a. Has your country signed a commitment to be part of the Open Government

Partnership (OGP)? (Briefly describe the process that led to your incorporation.)

b. If your country is part of the OGP but has not yet submitted commitments, in

what state is the process? c. If your country is not a member of the Alliance, does it have the intention to join the Alliance in the near future? (And what is currently preventing your country from being part of this Alliance?) 3. Action Plan/ Commitments a. If your country has submitted an Action Plan: What are the main advances to which your country has committed in relation to the right of access to public information? What have been the institutional actors (including the body in charge of API and other regulatory agencies, if applicable) involved in the process of making commitments? b. If you have not submitted an Action Plan or are not part of the Partnership, what does your country intend to do to advance the right of access to information? (Please take into account the situation described in item 1.) 3.1 Civil Society c. What role does civil society play (or has civil society played) in terms of encouraging your country to join the OGP? d. If your country has already submitted commitments, what are the plans for monitoring compliance with them? e. If your country has not yet submitted commitments, what place has civil society been given in the development of the plan? (Consultations, meetings, etc.) f. If your country is not a member of the OGP, how does civil society intend to ensure that necessary advancements are made for your country's inclusion in the OGP? 4. Open Data a. What developments have you observed in your country relating to the Open Data Tool? (From portals to software, guidelines, or any enforceable project agreements.) b. In your opinion, what data should be available in reusable formats in the near future?

PART I

1.1. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN ARGENTINA

Asociación por los Derechos Civiles (ADC)
Executive Director: Álvaro Herrero Director of API Area: Ramiro Álvarez Ugarte  ACCESS TO PUBLIC INFORMATION

In Argentina, there is no law on access to public information at the federal level. However, there is a Decree (1172/03) that regulates the right of access to public information at the level of the National Executive. Furthermore, there are various provincial and municipal regulations that guarantee this right at their level. At the federal level, Decree No. 1172/03 meets the minimum standards on access to information, but does not include the legislature or judiciary. The standard establishes brief deadlines for response and a system of links within the administration to facilitate the exercise of this right. In turn, it creates administrative mechanisms for the exercise of the right and ensures appropriate and effective judicial remedy in cases where access is explicitly or implicitly denied. Negative aspects of Decree No. 1172/03 include some exceptions to the principle of access to information that are phrased in broad and vague terms, thus violating the principle of legality as required by Article 13 of the American Convention. Its main shortcoming is that it does not foresee the creation of an applicator and/or guarantor that is autonomous and independent from the incumbent political power. This prevents the active promotion of transparency policies within the incumbent administration.
 Main shortcomings and advances in access to

information during the last year in Argentina As far as shortcomings on access to public information, it may be noted that the draft law on access to information that was being discussed in Congress was totally paralyzed in the past year and is not likely to be passed in the near future. The legislative debate has been completely stalled in recent months. As far as the lack of a Law on access to information, in 2011, civil society organizations held meetings with representatives from all political sectors to promote the enactment of the Law, which had favorable preliminary approval by the National Senate. However, these efforts were unsuccessful. During 2012, there was a change of strategy and the decision was made to focus on generating information of interest for journalists and to

publicly highlight the importance of the right of access to information for the exercise of other human rights. There have also been no major changes in the administrative structures responsible for implementing access to information. However, the change of authorities in the SubSecretariat for Institutional Reform and Strengthening of Democracy (Decree No. 1172/03 enforcement authority) could constitute a positive change: according to preliminary data from an investigation conducted by ADC, the administration regularly responds to requests for access to information, but in a high percentage of cases such responses are late and incomplete. The main access-related problems arise in relation to the absence of active transparency obligations, unreliability of official statistics, and erratic behavior on behalf of the administration on the production and dissemination of information. In fact, there is no defined public policy for information production, which is why in many relevant areas of state action, no adequate information is available. In turn, some official statistics lack any form of credibility as a result of government policies that undermine the reputation of certain agencies, including the National Institute of Statistics and Census (INDEC). Finally, in recent times, there have been cases of information that was suddenly removed from official websites, without any form of notice or adequate explanation.

OPEN GOVERNMENT PROJECT (OGP)
 Membership

Argentina is not currently a member of the Open Government Partnership. That is why, in the framework of the promotion of the Law on access to information, different civil society organizations have asked the Argentine government to comply with the OGP. This has been done through public letters and different forms of contact with public officials. So far, efforts have been unsuccessful. One of the main barriers to OGP entry has to do with the lack of a law on access to information. However, this does not constitute an insurmountable obstacle for Argentina to join the Partnership.
 Commitments

While Argentina is not part of the OGP, the country should commit to a number of items to advance the right of access to information:
 

Enacting a law on access to information according to international standards (especially the OAS Model Law). Creating an enforcement and/or guarantor body with independence and autonomy from the incumbent political power. This body should be legally empowered to

promote transparency policies, sanction officials who violate the right in question, and establish administrative jurisprudence on the scope and limits of access to information. A progressive plan for proactively producing and publishing information on open standards must be established, with special emphasis on information that is relevant for the promotion and exercise of other human rights, and which takes vulnerable groups into account.
 Civil Society

As mentioned, civil society has challenged the State to reveal its position toward the OGP. Civil Society has publicly urged the State to join the Partnership and has participated in various regional forums. For example, Asociación por los Derechos Civiles attended the OGP meeting in Brasilia in April 2012. In addition, ADC also participated in the previous meeting of civil society organizations sponsored by Fundar and held in Mexico City in March 2012. There is information indicating that the Argentine government is interested in joining the OGP. Considering that alleged interest, it is important for civil society in Argentina to pay close attention to the next steps taken by the State to ensure the inclusion of Argentina in the OGP, by following all necessary steps and respecting the place of civil society in the development of proposals and Action Plans. Additionally, ADC believes that it would be useful for all countries that have not yet joined the OGP to establish relationships with other organizations in other countries –based on the principles of solidarity, cooperation and complementarity.  OPEN DATA

There are no known proactive initiatives for disclosing open data at the federal level in Argentina. For years, INDEC has produced data that can be reprocessed, due to their format; however, such data are distributed in proprietary formats. Production of information in closed formats has also been detected in other areas nationwide: i.e. large amount of information that could be distributed in open formats is distributed in closed format, for example, in PDF; thus preventing reuse of that information by the public. On a local level, the City of Buenos Aires has launched an initiative to produce information in open formats through the Buenos Aires Data Initiative, but this project is very new: information is available, but it is relatively scarce. ADC believes that data which is relevant to the exercise of human rights and development, preparation, implementation and monitoring of public policies should be

produced and published. In this regard, ADC believes the following areas constitute priorities:
     

Access to basic services (especially by vulnerable groups) Access to health Access to decent housing Statistics on gender violence Environmental data Budget issues and implementation and control of state funds

1.2. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIPS (OGP) IN BOLIVIA

Asociación Nacional de la Prensa (ANP)
Executive Director: Juan León Cornejo  ACCESS TO PUBLIC INFORMATION

In Bolivia, there is no culture toward access to information developed by the State. High-level public officials consider information as a factor of political power and, therefore, the norm is to mix it with propaganda. This situation persists even though on May 17, 2005, then-president of Bolivia, Carlos Mesa (2003-2005), journalist and historian, issued Supreme Decree No. 28168, which guarantees access to information as a fundamental right of every person as well as transparency in Executive management. Decree No. 28168 recognizes the right of access to information for all people as a fundamental prerequisite for the full exercise of citizenship and strengthening democracy. The Decree's scope is the entire executive branch; thus, creating the obligation to provide information in a complete, adequate, timely and accurate manner, at the request of any person, without discrimination. On July 22, 2009, Supreme Decree No. 0214 was issued, which approved the National Policy on Transparency and Anti-Corruption aimed at creating instruments for prevention, investigation, transparency, access to information, and punishment of acts of corruption. Decree No. 0214 extends the National Transparency Policy (PNT) and the fight against corruption to all entities and institutions belonging to the four organs of the Plurinational State of Bolivia. The PNT includes four areas:
   

Strengthening public participation Strengthening transparency in governance and the right of access to information Creating measures to eliminate corruption Strengthening mechanisms and institutional coordination
 Main shortcomings and advances in access to information over the last

year in Bolivia In 2012, the Ministry of Institutional Transparency and Lucha contra la Corrupción resubmitted the draft resolution on Transparency and Access to Information, initially submitted by the Office of Justice and Human Rights in December 2006. The document was submitted for consideration to the National Economic and Social Policy Council

(CONAPES) and, after a ministerial consultation process, it will be resubmitted by the President before the Plurinational Legislative Assembly. This resubmission comes at a time when access to government information faces restrictions, and the media are prevented from making updated and accurate information available to the public. One example of such restrictions is the case of ballots of the National Census of Population and Housing in October, which were not made public until after they had been printed, even though they contained several oversights that required addressing. This may be explained by the fact that in Bolivia there is no culture of access to State information. High-level public officials consider public interest information as a commodity, under the belief that information is power; thus, information is often mixed with propaganda. In fact, in June, at the Southern Cone News Agency Conference, the Minister of Communication herself admitted her office should support policy and government actions to foster changes with respect to access to information. Moreover, civil society still requires support and training for the exercise of the right of access to public information. Reporting mechanisms, which are still deficient, remain a mystery to most people. The information they contain is usually poor and, in many cases, of little practical use. These factors limit knowledge on the performance of public officials and the use of state resources.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

As far as Bolivia's participation in the Open Government Partnership (OGP), in September 2011, the Ministry of Institutional Transparency claimed never to have been invited to join in this endeavor.  OPEN DATA

In the websites of the various divisions of the Bolivian government, information about authorities can be found; but other data that may be of interest to society are not updated. Websites display general reports on organizations, their mission, vision, and profile, but lack data on institutional performance. Permanent economic and social statistics are needed to support studies and develop plans and projects; for example, latest statistics of foreign trade in the year 2011.

The government must regularly publish and preserve useful data, especially pertaining to population rates, access to health, nutrition, and maternal and child nutrition, employment and unemployment rates, and economic activity rates, among others.

1.3. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN BRAZIL

Articulo XIX
Coordination of Articulo XIX -Brazil: Paula Martins Projects Officer: Alexandre Sampaio  ACCESS TO PUBLIC INFORMATION

In Brazil, access to public information is regulated by Federal Law No. 12,527 of 2011. This law should be regulated by the applicable legislative and judicial decrees of the Federation, states and municipalities.8 The Federation has already regulated this law. The law came into force in April 2012. Law No. 12,527 is generally enforceable. This means that it applies to all political branches throughout the country and must also be abided by the Public Ministry, mixed economy companies, public companies, municipalities and non-governmental organizations that receive public funding. The law determines that all required information must be submitted to the public, regardless of who requests it. According to the Law, transparency is the rule and secrecy the exception. Information can only be kept secret when it is strictly related to the private lives of individuals, or when such information is essential to public safety. However, when information is related to human rights violations, it cannot be classified as secret. All other information cannot remain confidential for more than 25 years. In the event of dispute for failure to deliver certain information, the applicant may resort to various levels of administrative appeal, as appropriate, according to where the complaint was filed; because there is no central body responsible for receiving and hearing appeals. Moreover, the law offers no security to a person who discloses secret information that is of public interest. Similarly, it is also noteworthy that the law requiring transparency is practiced actively. Thus, information considered relevant by society9 should be proactively published by all to whom the law applies.

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At least 10 states have already regulated the law. The same can be said about certain municipalities, such as Ouro Preto. However, there is no database for determining which municipalities have regulated what. 9 Article 8 determines that the following information should be proactively published:

 Main shortcomings and advances in access to information over the last

year in Bolivia Since the publication of Saber Mas III (September 2011), the main advancement in Brazil in terms of access to information, has been the entry into force of Law No. 12,527. In this regard, civil society has actively been discussing the law and more than 25,000 requests for information have already been submitted to public bodies. In the last year, the first CONSOCIAL Conference was held (a conference convened by the public power as a tool to institutionalize the participation of society in planning, managing and controlling public policies). In addition, the Brazilian government has been involved, since its inception, in the creation of the Open Government Partnership (OGP). At this initiative, civil society organizations have tried to participate more actively, which includes working group meetings to discuss and monitor government activities and plans.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

Brazil was invited to join the Alliance by the United States because of its prior commitment to public transparency of the federal government, primarily as a result of the performance of the Comptroller General of the Union (CGU). Thus, Brazil, alongside the U.S., was one of the countries that initiated the process of creation of the Open Government Partnership (OGP).
 Commitments

In general, the Brazilian Action Plan for the right of access to information seems to have introduced major innovations. There has been much emphasis on active transparency, but no measures to encourage the use of the law on access to information or social understanding of the law. An open data policy has also been promoted, but there have

I - Registration of powers and organizational structure, addresses and phone numbers of their units and opening to the public. II - Records of any transfer(s) of funds. III - Expense records. IV - Information on tendering procedures, including respective notifications, results, and all contracts. V - General data monitoring programs, activities, projects and work by the departments and agencies. VI - Answers to frequently asked questions by society.

been no developments toward accessibility of the information that could be published through the opening of data. It should also be noted that the plan refers only to public bodies of the federal executive. It is also noteworthy that the Action Plan submitted by Brazil to the OGP comprises the following advancements: - Increased Public Integrity of the Federal System of Access to Information: Through surveys of public officials and their respective bodies, the following activities have been performed: preparation of booklets on access to information for public officials, research on the topics requested by society, development of a structure to receive requests for information by the federal executive branch, development of workshops for public officials, development of information management workshops, and preparation of a catalog of data and information available to the population in the computer network. - Active transparency of open data: Creation of a data repository in an online transparency portal; restructuring of transparency portal; placement of Management System Agreements and Contracts in open data format; construction of a platform for Strategic Information Management in Science, Technology and Information; development of a national open data structure; development of a plan to train public officials and improve the quality of data available on the Internet; development of a communication plan for an Electronic Government program; and development of a virtual environment that simplifies public data searches. - Social participation and citizen engagement: Implementation of the first national conference on transparency and social control (CONSOCIAL), National Seminar on Social Participation, forum to discuss the multi-year plan (2012-2015), organization of an Association with W3C Brazil to train and encourage subnational governments to publish open data, partnership with Digital Culture Laboratory to encourage and empower people to use public information and open data, and implementation of the first national meeting of open data. - More effective management of public resources: School development plan, which will help identify transparency problems in public schools; access to security and defenserelated costs of unemployed and all expenses related to natural disasters and environmental catastrophes; publication of data from the Unified Land Registry of the federal government. Tenders and contracts: The government undertakes to record the prices of products used by public schools, decreasing the time required to make a tender as well as related expenses. The government is also committed to improving the service quality of available technologies and the procedure for recruiting suppliers.

- Increased corporate responsibility: Implementation of the Pro-Ethics Enterprise Registry [Catastro Empresa Pro-Ética], i.e. a list of companies committed to integrity and ethics to prevent corruption and create a better working environment between the public and the private sector. Improving public service delivery: The government is committed to mapping public service delivery –using the claims of citizens as a basis for improvements and for the formation of a complaints system– and to develop a policy for improving services, so as to cater to the demands of the public. Education Services: The government is committed to improving the system that will help managers monitor strategic actions for the Ministry of Education. Online Citizen Services: Creating a website that will allow the public to know what services the government provides.
 Civil Society

Brazil's Action Plan incorporates the creation of a body called the Interministerial Committee for Open Government (CIGA), whose goal is to monitor the government's actions in relation to the country's commitments. However, it is unclear whether and how civil society will participate in this Committee. On the other hand, civil society is participating in discussions on the methodology of the national plan and the best way to apply it. In this regard, we can mention the existence of a working group of 10 civil society organizations that were selected by their peers for dialogue with the government on plans for monitoring commitments. This group met for the last time on July 19, in Brasilia.  OPEN DATA

The Brazilian National Plan for the OGP includes restructuring its Transparency Portal on the web, guided by the principles of open data. It also establishes the creation of a contract management system in an Open Data format and building a platform for strategic information management on science and information technology –open data platform. In turn, Brazil proposes the development of a national open data structure and the creation of a Brazilian Open Data Portal (http://dados.gov.br/).

1.4. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN CHILE

Fundación ProAcceso
Executive Director: Moisés Sánchez Collaborator: Javier Contreras  ACCESS TO PUBLIC INFORMATION:

Exercise of the Right of Access to Public Information in Chile is regulated by Law No. 20,285,10 which was published in the Official Gazette on August 20, 2008 and entered into force on April 20, 2009. The law, in turn, regulates Supreme Decree No. 13/2009 of the General Secretariat of the Presidency of Chile. Law No. 20,285 establishes an administrative procedure for the exercise of the Right of Access to Information and the creation of an autonomous Public Law Corporation with legal personality and assets, known as the “Council for Transparency” [ Consejo para la Transparencia], endowed with supervisory powers to ensure effective compliance with the rules of transparency,11 as well as the power to decide claims and writs for access to public information, in addition to advocacy and promotion of transparency, and the power to issue binding General Instructions for permits and recommendations. All this ultimately guarantees the right of access to public information. Third, the Law contemplates grounds for partial or complete refusal to submit the information required by an applicant, which are consistent with Article 8 paragraph 2 of the Constitution of the Republic of Chile, which enables the administration to refuse to release certain information in its possession. Finally, it establishes the obligation of state bodies to permanently share certain public information through Internet portals in order to maintain Active Transparency.
 Main shortcomings and advances in access to information over the last

year in Chile. Main Achievements

10

LIBRARY OF CONGRESS OF CHILE / CHILE LAW [PDF]< http://www.leychile.cl/Navegar?idNorma=276363 > [Viewed on: August 28, 2008]. 11 ALIANZA REGIONAL POR LA LIBRE EXPRESIÓN E INFORMACIÓN Saber Más III: Regional Report on Access to Information and Protection of Personal Data . Page 29.

The Government has advanced a limited agenda of transparency measures focusing on two areas: public integrity and more effective management of public resources.12 Regarding the first area, the Government had advanced in the following proposals: Voluntary publication of sworn statements regarding assets, agreement for the design of a State Transparency Portal, and active transparency measures. As far as more effective management of public resources, the Government has made the following proposals in terms of fiscal transparency and government procurement: Public Private Council on Public Market Supplier Integrity [Consejo Público - Privado de Integridad en los Proveedores del Mercado Público] and Contract Management System of the Directorate of Public Procurement, more information for businesses as well as a system for evaluating the delivery of municipal budget information. Main Shortcomings Now that the Transparency Law has been effective in Chile for three years, it is possible to make an overall assessment of this legislation, taking into account its various achievements and expected obstacles and challenges. Both the Council for Transparency and Civil Society have made efforts to try to create a culture of transparency in our country, which must be known and adopted by each citizen, while ensuring the Right of Access to Public Information. This includes the promotion of citizen participation in public decisions, citizen-expected accountability, social control of measures, as well as achievements and failures by political leaders, among others. The enforcement of the Transparency Law in our country has been marked in recent times by three milestones that reveal different scenarios in which the law has been questioned.

Conflicting Decisions of the Council for Transparency

In recent months, the Council for Transparency has been involved in a series of controversies that have questioned its autonomy and, with it, the exercise of its functions; this has raised questions on some decisions regarding both Writs and Complaints for denied Information Requests. Each of these situations has had certain consequences; an example of this is the socalled Mechanical Bridge [Puente Mecánico] case,13 which resulted in the resignation of a Minister of State.

12

GOVERNMENT OF CHILE. Open Government Partnership: Action Plan of the Government of

Chile. April 2012. Pages 5 to 8.

This sparked the beginning of an atmosphere of tension between the government and the autonomous Council for Transparency, because of the powers that the latter was exercising and the nature of its decisions.

Election of Members

Another example of the above was the election of members of the Council for Transparency.14 The process itself, as well as the performance of its former directors and new profile, all came into question. All this resulted in a very alarming situation that ultimately led civil society organizations to resort to a mainstream media debate demanding that new directors have a proven history of adherence to transparency.

Sharing the contents of public officials' emails

Finally, the Council came into question for a third time in regards to requests to view the contents of public officials' emails.15 An initial case involving the Secretary of the Interior, Rodrigo Ubilla, and the Municipality of Melipilla was not attractive in terms of media and Public Opinion. However, there was a second case that generated great interest when a request to view emails of the Secretary General of the Presidency, Cristián Larroulet,16 were denied by the Ministry under the grounds of a violation of the right to privacy. In this case, the Council found that the Ministry had an obligation to release these emails in accordance with the Transparency Law, under the grounds that, regardless of format, these emails are public and, therefore, any denials based on the idea of privacy can be discarded. This is where the tension and questioning of the Council for Transparency on behalf of certain public bodies concentrated and intensified. In turn, the Right of Access to Public Information also came into question, thus ignoring its status as a fundamental right. In

13

Press: http://www.consejotransparencia.cl/consejo-para-la-transparencia-recibeantecedentespor-adquisicion-de-puente-mecano/consejo/2011-02-09/133836.html 14 References:

http://www.incide.cl/16/11/2011/se-mantiene-bloqueado-el-consejo-para-la-transparencia http://www.proacceso.cl/contenido_general/carta_al_director_el_mercurio_elecci_n_de_consejer os_
en_consejo_para_la_transparen 15 Press: - Emails and Transparency Board: http://bit.ly/Mw7NNo - Council for Transparency: Larroulet alleges e-mails “are forced”: http://ow.ly/i/KeOR 16 Press: http://diario.latercera.com/2012/03/26/01/contenido/pais/31-104689-9-consejo-paralatransparencia-vota--por-hacer-publicos-emails-de-larroulet.shtml

fact, in one of its latest decisions even the Constitutional Court denied that this right is enshrined in the Constitution. Because of the above, the Government negatively affected the exercise of the Transparency Law and proposed a series of amendments to the law, some of which are considered regressive. An example of this was the attempt to limit the potential scope of information that could be requested by applicants, as a direct attempt against the Right of Access to Public Information, which fortunately was passed in the legislative debate. On the other hand, the Council for Transparency is now facing a very fragile scenario, where everything from its autonomy to its powers and functions are coming into question.17 In addition, in this new period, the debate over Council budget was further sparked; however, this has always been a complicated subject, as it extends beyond the technicalities of the financial year and enters into the political realm. Thus, actions are needed to avert criticism of the decisions of the Transparency Council and position the council as an entity that is responsible for regulating and monitoring the practice of requesting information. Otherwise, the Council for Transparency itself is at risk; thus representing a shortcoming in terms of all the advances that have been made so far on issues of access to information.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

Chile initiated this process by joining the Open Government Partnership in September of 2011. Since then, the government has developed a series of activities with different actors of society, both nationally and internationally, to integrate them in the initiative. In October 2011, a meeting was organized at the National Congress of Chile, with participation from representatives of the State of Chile, and the ambassadors of the United States, Mexico, and United Kingdom, as well as civil society representatives. In the period from December 23, 2011 to January 9, 2012, a public consultation process was conducted that allowed receiving input on the first draft document of the

17

Press: ● House Representatives analyze potential changes for strengthening the Council for Transparency: http://bit.ly/LWYOJ8 ● Active Transparency and Access to Public Information: Institutions in Crisis: http://bit.ly/Me79Um ● Proposed changes to the law on access to public information: http://bit.ly/O0tSTl

Government of Chile's Action Plan. This was accompanied by a parallel consultation process, with experts representing autonomous state agencies and civil society organizations linked to the world of transparency and participation. This plan was presented by the government at the meeting in Brasilia. Suggestions and opinions expressed at that time, as well as responses to them, were published on the website of the event and provided the basis for the reformulation of the Action Plan. As part of this process, the observations made by Civil Society and the Transparency Council were largely ignored, especially in regards to the methodology for selecting measures that make up the plan and future monitoring. Therefore, the plan is really just a government plan. Later, in November and December of 2011, bilateral meetings were held with nongovernmental organizations (NGOs), autonomous bodies and diplomatic representatives of the United States, United Kingdom and Mexico.
 Commitments

As part of the commitments that Chile has made for its integration into the Open Government Partnership, the Government has promoted a number of initiatives related to the use of “open government” to improve public services, public integrity, and increase institutional responsibility for creating safer communities. However, specifically in terms of Access to Public Information, many measures have been taken, including: 18

Improvement of the Law on Access to Public Information: With this initiative, and after three years of effectiveness of the Transparency Law, this measure seeks to regulate the exercise of the right of access to public information and the operation of the Transparency Council. Applicable Authority: General Secretariat of the Presidency. Congressional discussion stage of the law: First constitutional stage in the House of Representatives. Portal Transparency: This is an initiative for strengthening the enforcement of the Law on Access to Public Information by government agencies and municipalities, which consists of integrating information of their transparencyrelated obligations in a centralized portal in order to provide citizens with access and use of this information through common standards for publication of information. The development of tools that facilitate the search for public information, analysis and publication in open formats is being further contemplated.

18

Ibid. 3. Page 11

The General Secretariat of the Presidency and the Council for Transparency are responsible for its development and completion. Applicable Authority: The General Secretariat of the Presidency and the Council for Transparency. Completion date: First half of 2013. National Archives Policy: A workbench will be created around public records comprising various actors, with the overall objective of establishing the necessary recommendations for a proper and efficient national policy according to the current reality of the country and under practices of good governance and transparency. Applicable Authority: General Secretariat of the Presidency. Date of compliance: Meetings will begin in the second half of 2012. Promotion of the Model Law on Access to Information of the Organization of American States: The Chilean Government will continue to work with various countries in the continent; exporting best practices and promoting the adoption of laws on access to information that meet the standards in the model law. Applicable Authority: General Secretariat of the Presidency. Advertising Law on Access to Public Information: In order for citizens to continue to know and exercise their right to access information held by the state administration, diffusion and transparency efforts will continue. Applicable Authority: General Secretariat of the Presidency.

On the other hand, the possibility has been raised of creating a Governing, Legislative and Civil Society Organization Worktable to promote transparency. The Government is committed to continue to work on a high level worktable led by the Secretary General of the Presidency and composed of representatives of the main institutions in charge of promoting transparency in public administration at the level of government, legislature and civil society. At the time of writing of this report, this worktable has not yet convened civil society organizations for their “expertise” on the subject. The entity responsible for the management of this table is the General Secretariat of the Presidency. As far as these measures, main criticisms revolve around their lack of specificity and indicators for assessing compliance. Discussions are ongoing between the Executive Integrity Committee and the organizations of the Partnership for Transparency, which seeks to deepen the methodological debate for the next upcoming plan.
 Civil Society

The organizations that make up the Partnership for Transparency have been active promoters in our country, including the Open Government Partnership (OGP). In fact, the Partnership actively participated as an advisor for the Bureau of Labor coordinated

by the General Secretariat of the Presidency for the preparation of the National Action Plan. In addition, the Partnership also attended the Regional Meeting on Open Government Dialogue in Mexico as well as the OGP meeting in Brasilia. The Transparency Partnership consists of Pro Bono, Smart Citizen, and Pro Access foundations as well as the organization Participa. In the context of the Working Committee, the Partnership submitted the following comments for the construction of the National Plan, contained in the document “Public Consultation Partnership for Open Government”:19

A work plan that establishes clear, committed and responsible actions, deadlines, and financial resources; this information is still pending in the published draft proposal. The proposed Action Plan should not contain legislative measures, as these do not fall within the scope of the commitments that the Government of Chile has been invited to submit and which must be met within one year. The measures taken by the Government to be included in the national Action Plan should take into account previous international agreements signed by Chile on these matters. In particular, it is important to consider the Model Law on Access to Public Information and Implementation Guide.

At present, this is being debated by the Partnership for Transparency and Integrity Committee, based on the debate that took place in the meeting in Brasilia, which seeks to deepen the monitoring strategy.  OPEN DATA

During 2012, the General Secretariat of Government launched a beta open data portal called datos.gob.cl. However, specialized actors have criticized the scope of this policy.20 As proposed in the National Action Plan of the Open Government Partnership, the government agreed to the creation of an Open Government portal, which seeks to facilitate public access to transparency and participation and to provide government services with standards and tools that facilitate the fulfillment of their commitments. To that effect, these initiatives will be integrated into a one-stop-shop-like portal, based on

19

Partnership for Transparency. Public Consultation on the Open Government Partnership . [PDF] <http://www.consorcioporlatransparencia.cl/wp-content/uploads/2012/01/Documento-OGP.Consorciopara-la-Transparencia-y-Ciudad-Viva.pdf > [Viewed on: August 28, 2012]. 20 See, Barros, Alejandro: http://www.alejandrobarros.com/que-lejos-estamos-delopendata

the best international experiences (such as the case of the Open Government Initiative in the USA). The portal aims to centralize, in a unified platform, transparency, participation and public data initiatives, while promoting consistency throughout the government and facilitating public understanding and use. Public service providers will be trained on open government standards and forms, while promoting data availability. Applicable Authority: General Secretariat of the Presidency. Completion date: Second half of 2012. The recent entry into force of the transparency law has highlighted the need for reusable data formats for various subjects of interest to citizens. In this sense, jurisprudence of the Transparency Council involves hundreds of subjects of public interest, for which such dissemination and openness measures could be adopted. For example, in terms of education, public safety and local municipal management, there are dozens of materials that could be the subject of open data policies.21 However, one of the main challenges hindering progress in this area is the lack of clear standards on privacy and personal data, which generates partial data.

21

In this regard, see the reports by Pro Acceso in the areas of education, public safety, citizen participation, municipalities and privacy; each of which identifies topics that should be subject to transparency and open data. Available at www.proacceso.cl

1.5. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN COLOMBIA

Fundación para la Libertad de Prensa (FLIP)
Executive Director: Andrés Morales

Transparencia por Colombia
Executive Director: Elisabeth Ungar Bleier  ACCESS TO PUBLIC INFORMATION

Legal dispersion on access to information has long been a characteristic of the Colombian system. Although a law on access to public information was recently passed by Congress, it has not yet entered into force. This is because before entering into force, the law must be reviewed by the Constitutional Court. For this reason, to date, most developments and guarantees of the right of access to information are found in judgments of the Constitutional Court. Similarly, the right of access to information is enshrined in the Constitution of Colombia in Articles 20 and 74, which is why it has been ensured through special protections in some cases. On the other hand, a number of norms have develop tangentially, including, but not limited to, Law No. 594 of 2000 (according to which entities are required to manage and safeguard documents in public archives), Law No. 80 of 1993 (which includes transparency as a principle of government procurement) and Law No. 1266 of 2008 regulating habeas data. In turn, procedures to request and access information are included in Law No. 57 of 1985. However, this rule lost its force after July 2, 2012, when the New Administrative Code (Law No. 1437 of 2011) came into force. None of these norms provides for the right of access to information as an independent right, but are instead included as part of the right of petition, which is the right of every citizen to submit petitions before public authorities. The New Administrative Code has not made substantial progress in relation to international and constitutional standards for the promotion and protection of access to public information. In addition, the part about the right to petition was declared unconstitutional on a deferred basis for reasons of formality. This means it will lose effect as of December 31, 2014. Meanwhile, Congress is required to pass a rule governing this issue that meets procedural requirements. In connection with the right of access to information, the norm that is still in force establishes the following:

Requests for documents must receive a response within ten working days after receipt. In case such response is not issued, the institution must provide requested information within three days. Grounds for denying information are established on the basis of protecting trade and commercial secrets, defense and national security, client confidentiality, privacy and intimacy of individuals, financial conditions and the operating of national public credit. Proactive disclosure obligations are established for information regarding administrative procedures, regulations, and general administrative acts regarding public services and entity websites. It also allows for private organizations to submit requests. Such requests can be submitted to natural persons when the applicant is in a position of vulnerability before the entity holding the information. It reaffirms the possibility of appeals, a procedure that has existed since Law No. 57 of 1985 and is very effective in guaranteeing the right of access to public information and limiting the application special protections.

There is currently no dedicated institution that guarantees the right of access to information. Both appeals as well as special protections should be resolved by judges or magistrates (whose powers vary depending on each case).
 Main shortcomings and advances in access to information over the last

year in Colombia. The first half of 2012 was a defining moment for access to information in Colombia. As far as the courts, a decision was made by the Constitutional Court on the constitutionality of the Intelligence and Counterintelligence Law, which contains several provisions aimed at the prevalence of secrecy in these matters. Moreover, in terms of legislation, a draft Law on Transparency and Access to Public Information was approved, which seeks to regulate this right entirely. The Intelligence Law is a norm that raises several questions about various aspects of the development and control of intelligence and counterintelligence activities. The Constitutional Court endorsed several of these questionable issues in the law, taking into account the sensitivity of the information handled. However, concerns remain that these provisions trigger an effect by which secrecy is strengthened. It is, therefore, expected that the official text of the decision declaring the constitutionality of this law grants greater clarity on the interpretation of several points. One of the most troubling provisions regarding this law is the amount of time during which data can be kept confidential, which was a maximum of 30 years, renewable for 15 more years under approval of the President of the Republic: “when disclosure would seriously threaten

internal or external security or national defense, or the information threatens

international relations, or is related to illegal armed groups, or violates the integrity of agents or sources”. Furthermore, these documents may remain secret indefinitely while
illegal groups are not demobilized. That provision was declared unconstitutional for being disproportionate.22 On the other hand, the Transparency and Access to Public Information Law, which was adopted on June 20, is now available. This norm is currently under review by the Constitutional Court, since it regulates a fundamental right. This norm stems from the proposal made by Transparency Colombia and Dejusticia, in the framework of the “More Information More Rights” [Más Información Más Derechos] Partnership, which was consolidated with two congressional proposals. The adopted bill includes several important advances. But, of course, during the legislative process this proposal underwent several changes, some of which are not in line with the security interests involving this right. The “More Information More Rights” Partnership made a follow-up of the approval process of the bill and emphasized the difficulties that would arise if certain aspects of it were approved, with particular emphasis on the need for a specific body for ensuring the right of access to information, with a special protection mechanism including a comprehensive list of obligated parties. Finally, the final text contains the following advancements and challenges:
 Advancements (the final text of the Transparency and Access to Public

Information Law): - Creation of a Regulatory Unit, including many of the standards set by the Constitutional Court and the Inter-American Court of Human Rights. These high courts had made an important collection of principles that had no legal recognition, such as those of maximum publicity, burden of proof of the State when denying information and making partial disclosure, among others. As mentioned above, in addition to being too broad, prior norms did not provide such principles. - List of parties who are required to provide information. This is a major advancement because it allows citizens to know who has the obligation to provide information, while clarifying that there are entities that cannot deny public information under the grounds that the information is confidential due to its nature. For this reason, in addition to the

22

For more information on various concerns that were expressed by civil society with regard to the Intelligence and Counterintelligence Law, see the request submitted before the Constitutional Court by FLIP and Dejusticia in the following link: http://www.flip.org.co/alert_display/0/2623.html

three branches of government and supervisory bodies, the law includes political parties, mixed economy companies, industrial and commercial enterprises, and state public service providers in relation to the provision of their service, among others. - Obligated parties are required to proactively manage and disclose documents beyond the realm of prior norms. They must, therefore, provide information on their structure and operation; budget and its respective implementation; regulations; results of audits; management reports and assessments; provision of services; decision-making procedures; and mechanisms for participation; among others. - Creation of a public policy to promote the right of access to information. Its elaboration is in the hands of several government agencies: the Ministry of Transparency of the Presidency of the Republic, the Ministry of Information Technology and Communications, the Department of Public Administration (DAFP), the National Planning Department (DNP), the General Archive of the Nation and the National Administrative Department of Statistics (DANE). A key challenge facing these entities is coordination with each other and with other branches of government. - Guarantees access to information as a fundamental right, and expands the concept to allow special protections that are applicable to most cases. It also establishes a burden of proof on the existence of actual, probable and specific violation of the rights involved when information is denied. - Reduction of statute of limitations on confidentiality of information: The statute of limitations is currently 30 years; however, the norm establishes a 15 year statute of limitations that is renewable for an equal period, prior approval of the supervisors of each branch of government and supervisory bodies.
 Challenges (the final text of the of Transparency and Access to Public

Information Law): - A monitoring body was not created. The discussion sidetracked on economic issues and the desire to create an entity that had great power over citizenship information. 23 The adopted norm provides special protection powers to the Attorney General, a body composed of several entities that faces the challenge of articulating itself so as to apply and defend the right of access to information.

23

An argument that to some extent affected the non-inclusion of the Attorney General as a direct monitoring body is that the current Attorney General is a very controversial figure, with equally controversial positions.

- The Constitutional Court must decide on specific provisions within the law that could strengthen the culture of secrecy:

Paragraph 2 of Article 5 states that: “Documents, databases and contracts related to defense and national security, public order and international relations constitute exceptions to the application of this law and, therefore, are subject to confidentiality.” It is a fairly large realm and seeks to counterset all the advances established by the approved norm. Recently, however, the Constitutional Court ruled in a similar direction and issued a decision by which it found several reservations established under the intelligence law to be acceptable. The second paragraph of Article 21 states that: “No public authority may refuse to indicate whether or not specific documents are in his/her possession or deny the disclosure of a document, unless the harm caused by disclosing the information is greater than the benefit to the public interest involved in accessing said information.” This provision can lead to ambiguity and generate a proliferation of evasive responses to requests for access to information, which is why it should be declared unconstitutional. There is a reservation concerning: “documents containing the opinions or viewpoints that are part of the deliberative process of public servants,” which, as per the definitions set out in Article 6, includes drafts that do not contain final decisions. This limitation should be interpreted by the Court in a way that does not trigger arbitrary actions.

If the law is declared enforceable by the Constitutional Court, it will face the challenge of overcoming the culture of secrecy; this is because proactive disclosure and document management obligations represent economic and cultural challenges to various entities, especially at a regional level, which requires very careful planning. This project has been important in generating public debate on various aspects of public information, especially regarding limitations on access to information, such as national security and defense and those related to privacy of public officials. Several journalists, columnists and media have spoken for and against various aspects of the approved law. On one hand, there are those who believe that the law includes more shortcomings than progress, and which can lead to even more limitations than those that currently exist for access to information. On the other hand, there are those who recognize that this norm contains fundamental advancements that are consistent with international standards, but contains excerpts that are troubling and must be modulated or declared invalid by the Constitutional Court. This has fueled a debate that should enrich the decisions made by the Constitutional Court, the Public Prosecutor and government entities responsible for the construction of public policy on access to information.

 OPEN GOVERNMENT PROJECT (OGP)  Membership

The “Open Government Partnership” (OGP) initiative has generated interest in the government of President Juan Manuel Santos, as it is in line with the 2010-2014 National Development Plan. This plan contains references to issues such as the modernization of public administration, access and availability of government information, transparency, development of new technologies and innovation, accountability, and creating tools to promote participation of civil society and the fight against corruption. The government of Colombia joined the OGP in the last half of 2011. However, during the first months of 2012, it had not yet made any consultation with civil society, which is why a group of organizations (among which were Fundación para la Libertad de Prensa and Corporación Transparencia por Colombia) sent a letter to the government 24 to inquire about the process. The letter went unanswered. After some editorials 25 authored by members of these organizations, the national government convened civil society to disclose the Action Plan. At this meeting, some general recommendations were made to the contents of the plan and special emphasis was placed on the need for constant and fluid communication channels between civil society and government for the process to succeed. An online consultation was later conducted so that citizens could have the opportunity to comment and suggest issues and actions for the plan.
 Commitments

During the meeting in Brasilia, organized by the OGP in April 2012, the government presented its Action Plan, which in the opinion of civil society organizations was not subject to public consultation and lacks certain basic requirements of Action Plans. In general, Colombia's Action Plan refers to generic aspects that establish plans and programs which are already in place or underway. Thus, the list of government actions is not specific enough. In this sense, one of the main challenges is to finalize the Action Plan based on an actual state plan that extends beyond the four years of the present government and constitutes a viable initiative in the medium and long term. This must involve pilot plans, for

24

See

letter

at

http://es.scribd.com/doc/70788360/Carta-Open-Government-Partnership-

Colombia-19sept
25

Ungar, Elisabeth “Un Compromiso Pendiente” El Espectador, January 25, 2012 http://www.elespectador.com/impreso/opinion/columna-323004-un-compromiso-pendiente

example, to commit NGOs to helping meet plan objectives, as well as other national and regional powers. In addition, the web pages and technological tools mentioned in the Action Plan, seem to be an end in themselves, rather than a means to achieve transparency and accountability. It is necessary for the government to finalize the specific plans and projects that will be based on goals, priorities, objectives, indicators, authorities and, in general, on necessary information for meeting these objectives. The Action Plan lacks a description of the processes and schedules for the execution of plans, policies and activities. The plan also refers to how the proposed actions will be funded. That is, budgets and national financial baselines are necessary in order to identify the most efficient mechanisms for achieving the required actions. In this sense, there is an expressed need for more specific objectives that include all the information required for implementation (financing, access to regions, civil society integration, functions of each State entity, among others). The realization of targets and proposals, rather than the statement of plans and projects, constitutes one of the most obvious gaps in the Action Plan. Furthermore, the Action Plan lacks monitoring and evaluation mechanisms for the fulfillment of objectives and delivery of public information, as well as tools that account for the effectiveness of open government policies and their impact on the fight against corruption, transparency and access to information. Considering that the right of access to public information is the main ally of the OGP, in that it involves the disclosure of public information as an ideal mechanism for ensuring transparency and fighting against corruption, Colombia's Action Plan must include, as key players, supervisory agencies who are the guarantors of this right. In this sense, it is also essential to include the other branches of government, such as state entities, which must have specific functions and goals. The State shall endeavor to provide the body responsible for ensuring and promoting the implementation of the law on access to information with an adequate budget. In addition, it must also ensure that this body has necessary tools, powers of inspection and sanction, and that it is endowed with true independence. In this sense, one of the most important challenges in access to information and use of technology, where the Action Plan has limitations, is to achieve interoperability in information systems, and to check its functionality. The State has systems for reporting

information, and web portals, but these systems lack the capacity to communicate with each other to cross-reference information and avoid duplication and facilitate decisionmaking. The monitoring process of the Action Plan is not yet clear and has no specific measurement indicators. In this sense, the government created an Inter-Agency Steering Committee, led by the Presidential Office for Good Governance and Administrative Efficiency, with the participation of the Transparency Secretariat of the Presidency of the Republic, the Government Online Program of the Ministry of Information Technology and Communications, the National Planning Department and the Ministry of Interior, which is responsible for supervision and monitoring, but has not achieved a constant fluid communication with civil society.

 Civil Society

The OGP is a space for collaboration between partners, civil society and governments, and must be devised for dialogue and development of the proposed Action Plan. This process represents an opportunity for civil society to collaborate with governments, as well as an opportunity to increase participation, to further develop access to public information as a human right, while placing key issues on the public agenda. In Colombia, civil society organizations have asked the government to have continuous consultation with them, from the formulation of the Plan, through design and implementation. To date, the construction of the Action Plan has very sporadically included civil society and the business sector in the debate, which limits the real extent of the Colombian State's commitments and compliance with the Principles of Consultation26 of the Partnership. To that effect, it is necessary to establish clear rules for all parties, as well as a methodology for consultation and monitoring that would establish goals, objectives, actions, responsibilities and follow up. However, until now it has not been possible to coordinate regular meetings between the government and civil society or to seek opportunities to develop these methodologies. In order to continue in this direction, a group of organizations have formed a partnership that aims to track and impact the development of the Action Plan. As a first step, this partnership made preliminary recommendations to the draft Action Plan submitted by the Government, with the understanding that it is a draft document, as stated in Brasilia; however, there has been no response by the National Government. Finally, civil society organizations are currently in the process of drafting a document

26

http://www.opengovpartnership.org/consultation

containing concrete commitments and responsibilities, which is subject to a call for dialogue by the government to reach agreements and mutual commitments.
 OPEN DATA

In Colombia, the main advance on the road to open disclosure is the Government Online program. This program's implementation stemmed from a presidential directive in 2000, followed by a decree in 2008 that created some guidelines whose main objectives are to:

“- Facilitate efficiency and collaboration within and between government entities, as well as society as a whole. - Contribute to increasing transparency in governance. - Promote citizen participation using electronic media. - Strengthen the conditions for increasing competitiveness and improved quality of life.”27
Following this strategy, several organizations have published some data that can be useful, but which lack development in terms of format and unity.28 In addition, phase 3.0 of Government Online, starting in early 2013, contains several items on open data publishing, which includes the creation of an inventory of information, legal analysis about what information is not confidential, clear language for the public to understand, and the prioritization of the information to be released, among others. In addition, the draft Transparency and Access to Public Information Law, which was recently approved, establishes the disclosure of open data by all obligated parties as well as “technical conditions for disclosure, in accordance with the requirements established

by the national government through the Ministry of Information Technologies and Communications or its substitute.”

27

From Manual 3.0 for the implementation of the Government Online Strategy in the Supreme National Order of the Republic of Colombia. 28 Examples of the above include: Historical election data held by the National Registry of Civil Status (www.registraduria.gov.co), which are complete, downloadable, and can be easily reused; the maps portal by Instituto Geográfico Agustín Codazzi (http://mapascolombia.igac.gov.co/wps/portal/mapasdecolombia/), which has an advanced interface, that is not exploitable, for obtaining data that can be useful; the website of the Attorney General's Office (www.procuraduria.gov.co) that has an interface indicating the disciplinary record of any citizen by typing in their ID number. If this tool is successfully used, it could generate interesting open data for the public.

An open government portal is currently running (www.datos.gov.co). However, this tool, which constitutes an important advancement, is in beta (test) phase and lacks a significant amount of data that is useful for the public, which is why it is necessary to visit entity websites even though they do not always have the information sought. The dispersion and disunity of information between these open data portals hinder any form of consultation. For example, if you search for information on mobility and transport statistics, at www.datos.gov.co, all you find is limited data on land transport accidents. If you want to delve into this type of information, your options are the National Statistics Department (DANE), the Ministry of Transportation, or the secretariats responsible for these issues in the cities. The former, which has a catalog of data, includes no information on the subject; the latter has some listings, mainly from records. Finally, using the Mobility Department of Bogota as an example, you can find information on yourself, such as fines and traffic violations, but not statistics or general information. Colombia has a long way to go in the advancement of open data. Another example of this is the difficulty of access to statistical information from the Judicial Branch. For example, there is no comprehensive information on State management of criminal proceedings. FLIP submitted a request for information on the status of the investigations conducted for the murders of journalists in order to take stock of the situation of impunity for such crimes in Colombia. Such information would be useful to complement FLIP's constant monitoring of attacks on freedom of press in Colombia.29 From this, one could assess the progress and levels of impunity that occur in the investigation of such facts.30 The Prosecution's response is that this information must be given by each officer of each judicial office at his or her discretion, with no form of articulation.

29 30

Information collected by FLIP over attacks on freedom of press can be found at www.flip.org.co FLIP conducted a report on impunity in the murders of journalists in Colombia (http://daytoendimpunity.org/sites/all/themes/impunity/flip/). The requested information may be useful for strengthening such research.

1.6. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN COSTA RICA

Instituto de Prensa y Libertad de Expresión (IPLEX)
President: Alejandro Delgado Faith Secretary: Raúl Silesky  ACCESS TO PUBLIC INFORMATION: Costa Rica does not have a law regulating Access to Public Information. However, article 30 of the Political Constitution stipulates that:

“(…) free access must be guaranteed to administrative departments for the purposes of information on matters of public interest, except for state secrets.”
From this guarantee provided by the Constitution, you can find a wide and consistent range of jurisprudence by the Constitutional Court, which guarantees access to public information.
 Main shortcomings and advances in access to information over the last

year in Costa Rica. Overall, it could be said that, during the last year, no shortcomings have been registered in the area of Access to Public Information. However, we should emphasize the adoption of a new Cybercrime Law (which only needs to be published in the Official Journal to be effective). For now, the bill on cybercrime is under review. Currently, there is sufficient political will to change an article that incorporates into the Criminal Code a sentence of four to eight years in prison for those who: “unduly seek or obtain secret political information.” The article in question is number 288, entitled “Espionage,” which was incorporated into the Criminal Code as part of an addition on cybercrime. The wording of this law drew criticism from lawyers and journalists, who believe it constitutes a restriction on access and dissemination of information of public interest, as it introduces the concept of “secret information policies,” thus violating the provisions of Articles 30 of the Constitution and 13 of the American Convention on Human Rights to unequivocally establish the right of every citizen, to seek, receive and impart information without limitation beyond so-called state secrets. The Constitution makes no reference to the term included in the law and, by establishing a broad concept, it covers a lot of information; therefore, the project violates constitutional rights.

 OPEN GOVERNMENT PROJECT (OGP)  Membership

On January 10, 2012, the Minister of Foreign Affairs and Cult of Costa Rica sent a note to 31 Minister Hage of Brazil and U.S. Under Secretary, Maria Otero, in which it expressed Costa Rica's desire to join the Open Government PARTNERSHIP (OGP). The Institute for Freedom of Press and Expression has requested additional information from the Department of Foreign Affairs about the process that has led the Costa Rican government to adhere to the above initiative. In response it was revealed that since the beginning of 2012, the Directorate General of Foreign Affairs, in partnership with Gobierno Digital, is preparing the Action Plan which Costa Rica will submit as a full member in 2013. The Ministry of Foreign Affairs organized, on April 24, 2012, the First Workshop on Open Government for Public Institutions. Various institutions of the Government of Costa Rica were invited to the event to be part of this initiative. In addition, the event covered essential aspects that drove the implementation of the “Open Data” project, 32 in public institutions, and included the participation of 104 representatives from 27 of the country's public institutions, including the Ministry of Finance, SUGEF, the MIDEPLAN and INEC.
 Commitments

As we mentioned before, since the beginning of 2012, the Directorate General of Foreign Affairs, in partnership with Gobierno Digital has been preparing the Action Plan which Costa Rica will submit as a full member in 2013.
 Civil Society

Civil society must develop and monitor Costa Rica's commitments as part of the requirements for OGP membership. Civil society organizations hope to engage in a broad discussion on the topic.

31

http://www.opengovpartnership.org/countries/costa-rica The process consisted of a call by Gobierno Digital to those institutions that had attended the launch and were interested in benefiting from being part of the first group (20) of institutions to implement the Open Data Platform.
32

Moreover, it is worth noting that, in terms of the lack of a law on access to information, it is not known which organizations are interested in the subject. In Costa Rica, the Constitutional Chamber has been instrumental in gaining access to public information and there is no interest at this time in promoting a specific law. National case law in this topic is very rich and fundamental.  OPEN DATA On the issue of “Open Data”, the Comptroller General of the Republic of Costa Rica and Gobierno Digital issued on July 12, 2012 a report sustaining that: “The Executive has been making efforts for years toward the development of a society

based on information and knowledge, as well as digital government; however, such efforts lack necessary articulation, coordination and integration. This is reflected in the following: Public policy in these matters are contained in the National Plan for Telecommunications Development, the National Plan for Science, Technology and Innovation, the Social Digital Agreement and Digital Government Master Plan; however, they are not articulated for long-term compliance, nor formulated as instruments for ensuring effectiveness over time. There are many actors that influence both the development of these policies and the definition and implementation of projects aimed at developing SIC and GD. Such is the case with the National Commission for Information Technology and Communication (CONATIC), the Inter-Government Digital Commission (CIGD), the Technical Secretariat for Digital Government (STGD) by the Costa Rican Electric Institute, the Vice-rectories of telecommunications and information technology. This situation has not had favorable results, not only because that level of multiplicity hinders the processes involved, but also because these instances have not worked correctly and the Executive lacks a leading figure responsible for the integration, coordination and monitoring of both the issuance and implementation of the public policy and the planning and implementation of associated projects.”33

33

http://www.miprensacr.com/contraloria-general-de-la-republica-cgr-senala-areas-demejoradelgobierno-digital

1.7. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN ECUADOR

Fundamedios
Executive Director: César Ricaurte Projects Director: Mauricio Alarcón Salvador
 ACCESS TO PUBLIC INFORMATION:

In Ecuador, the Transparency and Access to Public Information Law came into force on May 18, 2004. The Transparency and Access to Public Information Law guarantees and regulates the exercise of the fundamental right of the people to information, in accordance with the guarantees enshrined in the Constitution of the Republic, the International Covenant on Civil and Political Rights, the American Convention on Human Rights and other international instruments, of which the country is signatory. It pursues the following objectives: a) Complying with the provisions of the Constitution of the Republic concerning the openness, transparency and accountability that are subject to all state institutions which make up the public sector, dignitaries, authorities and public officials, private legal persons performing works, services, etc., and public allocations. To this end, measures shall be taken to ensure and promote the organization, classification and information management that account for governance. b) Complying with international conventions on the subject to which our country is legally bound. c) Permitting the inspection of public administration and public resources, thus facilitating a true social control. d) Ensuring the protection of personal information held by the public and/or private sector. e) Ensuring democratization of Ecuadorian society and full force of the rule of law, through genuine and legitimate access to public information. f) Facilitating effective citizen participation in decision-making in public interest issues and control. The Law applies to: • Agencies and entities in the public sector of the State. • Legal persons whose assets or interests belong in whole or in part to the State, exclusively on the fate and management of state resources.

• The right of access to information of the Assembly of the Republic, which is governed by the provisions of the Constitution of the Republic, in the Organic Law of the Legislative and its Internal Guidelines. • Corporations, foundations and nongovernmental organizations (NGOs), even private ones, that are responsible for the provision or management of public goods and services, and which keep covenants, contracts or contractual basis with public and/or international organizations, provided their purpose is public. • Private legal persons who are delegates or hold concession contract or any other form of state public services, under the terms of the respective contract. The controlling body of the right of access to public information is the Ombudsman, and its responsibilities include: • Promoting the exercise and fulfillment of the right of access to public information. • Monitoring compliance with this law by public institutions, legal persons and other public or private entities mentioned in Article 1 of this Law. • Ensuring that public documents be filed under the guidelines provided by the National Archives Law. • Ensuring that the quality of the information provided to public sector institutions contributes to fulfilling the objectives of this Law. • Developing an annual national evaluation summary report, based on information published on portals or web pages, as well as all that provided by institutions and public or private legal persons or parties subject to this Law. • Promoting or sponsoring, at the request of any person or entity or on its own initiative, judicial action for ensuring access to public information, when such information is denied. • Submitting to Congress, every six months, the index listing of all infor mation classified as secret.
 Main shortcomings and advances in access to information over the last

year in Ecuador. During the last year, there have not been any advances in access to information in Ecuador. On the contrary, there have been decisions by various public institutions aimed at establishing the privacy of information of certain public officials. An example of this is the “private information” label that has been added to sworn statements of the Assembly, thanks to a resolution of the Comptroller General.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

The Ecuadorian State has not demonstrated willingness to be part of the OGP. Proof of this is the lack of clear policies related to transparency and access to public information. Like the cases of Bolivia, Venezuela and Nicaragua, they have alluded to reasons of sovereignty in order to avoid these issues.
 Commitments

While Ecuador is not a member of the OGP, the points to which the country should commit to advance the right of access to information should be related to:
  

Establishment of clear state policies for access to and transparency of information from state institutions. Improvement of existing legislation in terms of times and statues of limitations on norms relating to access to and transparency of information. Enhancing transparency of information by private companies and civil society organizations.
 Civil Society

Civil society organizations are not actively working on the issue of incorporation of Ecuador to the OGP at this time. Civil society in Ecuador has not managed sufficient articulation to incorporate the country in the OGP. It should be noted that Ecuadorian civil society is now undergoing difficult times. A large number of organizations that were active in the sector have become part of the national government, thus abandoning their role as the “third sector.” As there is disarticulation by CSOs in the country, there has been no progress in the inclusion of Ecuador in the OGP.  OPEN DATA After an Internet search on the development of open data tools in Ecuador, it was verified that there has been no progress on this matter in the country. In Ecuador, there is currently no will to carry on open data initiatives. It should be understood that public sector offices hold significant amounts of information, developed on the basis of ongoing work of public officials, which certainly would be helpful to the general public. Releasing this data would strengthen transparency in the public sector. This should be the case with all that data that is not related to citizen's personal information, which could be protected by the Personal Data Law. Data released should help citizens in decision-making processes and participation in public affairs.

1.8. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN EL SALVADOR

Asociación de Periodistas de El Salvador (APES)
President: José Luis Benítez Treasurer: Juan Coronado Hernández

Fundación Salvadoreña para El Desarrollo Económico y Social (FUSADES)
Director - Legal Studies Department: Javier Castro De León Coordinator – Democratic Institutionalism: René Armando Abrego Labbé  ACCESS TO PUBLIC INFORMATION: In El Salvador, the Law on Access to Public Information (API Law) –contained in Legislative Decree No. 534 of December 2, 2010– was published in Official Gazette No. 70, Volume No. 391, of April 8, 2011 and is intended, according to Article 1 to: “ ensure

the right of every person to access public information, in order to contribute to the transparency of the actions of state institutions.”
It is noteworthy that the right of access to information, in addition to being regulated by a specific law is constitutionally supported in Articles 6 (which guarantees freedom of expression) and 18 (which guarantees the right to request and response). In turn, this right has been developed in the case law of the Constitutional Chamber of the Supreme Court, in which it was established that it is a fundamental right: “ the right of access to

information is a fundamental right of the people to be properly informed of matters of common interest, and to be informed of governance and how it is executed, as well as for holding the State accountable for the general budget; obligation that concerns all organs and agencies of the State, without exception.”
The API Law reflects many of the advances contained in Latin American access laws and the OAS Model Law. Therefore, the API Law meets many of the standards in the field, ranking fourth place in terms of access laws prepared by the Centre for Law and Democracy and Access Info Europe, after Serbia, Slovenia, India and Liberia-Croatia.34 The API Law’s guiding principle is maximum disclosure: “information held by public

authorities is public and its dissemination is unrestricted, except as otherwise expressly provided by law.”

34

Centre for Law and Democracy and Access Info, Global RTI Rating, September 28, 2011: http://rti-rating.org

In addition, the API Law has a wide passive standing, as it is mandatory to all public agencies or associations that manage public funds or perform a public function. Thus, it covers all branches of government. In turn, the locus standi is also broad: “Everyone has

the right to request and receive information generated or held by public institutions and other entities required in a timely and truthful manner, without sustaining any interest or motivation” (art. 2 API Law). However, it requires applicants to submit proof of identity,
which may contribute to discrimination or lead people to refrain from exercising their right. The definition of public information is also extensive, as it involves all information held by authorities and contained in all types of records that are recorded in any medium, regardless of their source and date of manufacture. The types of information identified in the law are common in comparative law: reserved, confidential and informal. The law creates two mechanisms of access to public information: informal publishing of basic information and a specific procedure for requests for information. In addition to informal data that is common to all entities, it also contemplates special informal data for certain institutions: Legislative Branch, Office of the President, the Judiciary, National Judicial Council, the Supreme Electoral Tribunal, Court of Accounts of the Republic and Municipal Councils. The law creates an institutional structure to ensure compliance. Each entity must create a unit of access to public information and appoint an information officer. It also establishes the creation of the Institute for Access to Public Information (API Institute), which enjoys a wide range of skills for enforcing the law and promoting and monitoring its proper implementation. In addition, appeals are made before this entity when processed information is denied or in cases of penalty procedures against API Law violations. The API Law also contains general rules on protection of personal data (for which there is no special law in El Salvador), as well as norms for managing records and promoting access to information through educational programs.
 Main shortcomings and advances in access to information over the last

year in El Salvado. El Salvador reached an important milestone in its democratic process and search for greater transparency in May 2012 when the API Law entered into full force. Opportunities also emerged on the international level that can contribute to the success of transparency policies, namely the “Partnership for Growth”, with the United States of

America, which will promote public disclosure of information; and, in turn, the “Open Government Partnership,” which is a broad commitment toward transparency. The formation of a governing body for managing the activities of the Law on Access to Information, i.e. the API Law, is still pending. The latter should have been created as of March 5, 2012. While the Government, primarily through the Secretariat of Transparency and Anti-Corruption (STA), said that the API Law can function without the Institute, civil society organizations believe that the API Law plays an irreplaceable role in promoting the right of access to public information, setting standards, hearing appeals when information is denied, 35 punishing violations of the law, and developing guidelines for enforcing the law before public institutions. The latter particularly affects local governments. The 5 permanent and 5 alternate commissioners of the API Institute are elected from lists proposed by five civil society sectors. Such nominations are made through elections in general assemblies of each sector, by the organizing body. In October 2011, the commissioner election process began for the API Institute with the opening of a candidate registration period which, in the absence of nominations, had to be extended. On Saturday, January 28, 2012, general assemblies were held in a controlled and transparent environment, ensuring the provisions of the API Law, its Regulations and the different instructions that were issued to that effect by entities responsible for the election. In all elections, there were observers who checked the conditions and results of the elections, which strengthened the process. In turn, the staff of the Transparency and Anticorruption Secretariat was present to assist with any controversies surrounding the proceedings.

35

Since national jurisprudence, both at the administrative and constitutional level, has established that the existence of immune control areas is contrary to the basic tenets of the rule of law, in light of the lack of a specialized body, the obligation still persists to process requests properly in case of refusal, omission, negligence, or arbitrarily; thus, unjustified refusal of information can be controlled in two ways: a) If such refusal is arbitrarily or occurs in violation of any provision set forth in the API Law, appeal by way of administrative proceedings before the Board of Administrative Litigation of the Supreme Court of Justice is possible. The Board is to conduct judicial review of final decisions issued by administrative authorities, since the absence of the body to decide appeals leads to the need for administrative remedies when information is denied by a public entity. b) Since constitutional jurisprudence has established that the right to information is a constitutionally protected fundamental right of the people (Judgment of unconstitutionality 1-2010/272010/28-2010 dated 25.08.2010), denials of information could be challenged through a constitutional complaint by the person directly affected. However, these mechanisms are not as efficient as the ad hoc remedy contemplated in the API Law, both because of the time required, as well as the need for counsel and specialization of the court.

On February 2, 2012, the President of the Republic received a list of 30 candidates for commissioners and alternates for the API Institute.36 The law provides 30 days to make the selection; therefore, the deadline for nominations expired on March 5, 2012, leading to a breach. Subsequently, the STA began the process of interviewing candidates and alternates in order to pre-select a list to be submitted to President Funes. The results of these interviews were used for the STA to give its recommendations to the President; however, they were not made public. The process was questioned by several trade unions grouped under Central de Trabajadores Democráticos (CTD), who claimed there was irresponsible management of the process and that the interview was intended to challenge the political stance of the candidates and not necessarily their knowledge on the subject.37 For over sixty days, the President of the Republic failed to appoint API Institute commissioners, even after the law came into force on May 8, 2012. Thus, on May 11, 2012, representatives of civil society organizations submitted a writ before the Constitutional Court questioning the failure of the President to appoint members to the API Institute, constituting a violation of their rights to non-jurisdictional protection and access to public information. That lawsuit was added to that previously raised by another group of citizens claiming that API Law Regulations were unconstitutional, based on the grounds that the President is overstepping his regulatory authority by including new and broad limitations to public information and self-proclaiming the power to reject the lists of candidates submitted by the sectors, as entitled by law. In that sense, the day of filing the aforementioned writ, it was reported that President Funes had rejected all commissioners nominated to the API Institute, in exercise of this questionable power. As stated in a press release, the President rejected the nominations because the candidates did not meet eligibility criteria and the Legislature had not created a budget for the API Institute.38

36

Menjívar, Valeria, (February 3, 2012). Presidente ya tiene 30 candidatos para el IAIP. La Prensa Gráfica. Retrieved on February 15, 2012 from: http://ww w.laprensagrafica.com/elsalvador/ politica/246856-presidente-ya-tiene-30-candidatos-para-el-iaip.html 37 Central de Trabajadores Democráticos. Press Release. Posted on May 16, 2012 in El Diario de Hoy. Retrieved on May 30, 2012 from: http://www.transparenciaelsalvador.org/images/phocadownload/comunicadot.jpg 38 Press Release of the President of the Republic, on May 11, 2012: “Presidente Funes devuelve ternas para instituto de acceso por falta de idoneidad de candidatos” http://www.presidencia.gob.sv/index.php/novedades/noticias/item/2421-11-mayo-2012-/- presidentefunes-devuelve-ternas-para-instituto-de-acceso-por-falta-de-idoneidad-decandidatos.html

The President of the Republic formally embodied his decision on 5 notes sent to authorities of the entities called to elections. There, he stated that candidates and alternate commissioners proposed for the API Institute: “ are not suitable to perform this important function;” and that: “given the importance of the Institute mentioned, the

undersigned [Chairman] believes that candidates' profiles must be consistent with the responsibility that come with heading the agency.” However, there is no knowledge of a
detailed analysis of these candidates. All articles on the matter conclude that nominations must be reevaluated on the basis of article 73 of the Regulations of the API Law, since the law says nothing about the possibility of rejecting all candidates. As for the lack of budget for the API Institute, it should be noted that the API Law provides, in Article 108, that the General Budget of the Nation shall allot funds for the installation, integration and operation of the API Institute. In 2012, the Budget was violated, since a provision for the API Institute was not included; a situation which the President has blamed on the Legislature, while House Representatives have pointed to the Executive.39 In reality, both are involved in the preparation of the budget and in budget amendment, which in this case would remedy the situation of the API Institute. The Promoting Group for the Law on Access to Public Information, of which Fusades and Apes are part, denounced this incompliance with the Law on Access to Public Information, as the API Institute has not reported to Frank La Rue, the special rapporteur on freedom of expression of the United Nations, and Catalina Botero, of the OAS. In addition, Alianza Regional por la Libre Expresión e Información sent a letter to President Funes asking him to reconsider his decision and to appoint the nominees submitted to him by civil society as well as to accompany the due and complete implementation the API Law, by strengthening and equipping the API Institute with necessary resources to serve its purpose. At the time of this report, there has been no progress for a new election of Commissioners. In addition, the President stated that a budget will be allotted to the API Institute in the 2013 budget.40 In turn, representatives from various sectors have stated that necessary conditions for proposing candidates are currently inexistent, since there is no legal certainty in the process. 41 Therefore, all parties are waiting for decisions by the Constitutional Court, which admitted the constitutional claim on June 20, 2012 and for relief on July 4, 2012.

39

Romero, Fernando (May 15, 2012). Diputados culpan a Funes por el IAIP. La Prensa Gráfica. Soriano, Antonio (June 6, 2012). Ente de acceso a la información será hasta 2013. El Mundo.

Page 14.
40

Page 8.
41

Urquilla, Katien (June 6, 2012). Choque entre Funes y ANEP por instituto transparencia. El Diario de Hoy. Pages 2 -3.

The consequences of not having an entity like the API Institute, to promote the API Law are evident in the results of the survey conducted by Cid Gallup Latinoamérica (hired by the STA), during February and March 2012, which revealed that 8 out of 10 adults and 6 in 10 employers interviewed have no knowledge of the API Law or how to file requests for information. The report also found a low probability that the law will be used.42 As far as the implementation of the law, we can say that there are cases where obligated entities have satisfactorily complied with the provisions of the API Law, which requires significant changes in the functioning of institutions and creates new obligations for them. For example, the government has created about 73 Offices for Information and Response (IRO), with even more powers than those legally established under the Units of Access to Public Information Law (API Units), since they also incorporate functions like receiving complaints and reports, and instructing citizens as to whether they need to go to another institution, as well as generating opportunities for citizen participation. Additionally, access to information counters have been created at the offices of departmental governments, which extends the scope of access to public information at a lower cost than information offices delegated by each entity with a national scope. Similarly, legislative and judicial bodies, as well as the Public Ministry, among others, have established their own offices for information. Efforts have been made to fill institutional websites with content, creating special sections or portals for transparency. However, there is a lack of preparation by various public entities, especially among municipalities. This is corroborated by a study conducted by Movimiento Ciudadanía Activa por el Desarrollo Territorial supported by Iniciativa Social para la Democracia in the 30 municipalities that were evaluated after the entry into force of the law. The results were alarming: 84% of municipalities did not have units of access to information, 40% of the municipalities required justification of requests for information; more than 80% of municipalities did not provide user support or even mention the API Law; only 4 % had forms for information requests; and in 70% of cases information was denied. According to the report, some reasons given for denying the information are not even listed in the law: because there is no API Unit (57%), no one knows who has it (13%), lack of information (22%), and the information is confidential (4%). In mid-June 2012, the STA submitted a ranking of institutional websites of the Executive, assessing the unofficial information published by 63 entities (Presidency of

42

CID Gallup Latinoamérica (April 2012). Investigación sobre la Tipología de la Información Pública relevante para distintos Sectores de la población. Retrieved on June 1, 2012 from: http://www.gobiernotransparente.gob.sv/publicaciones.php

the Republic, 13 ministries and 49 autonomous institutions). 43 Compliance with 31 standards were evaluated and divided into five thematic frameworks: policy framework, strategic management framework, budgetary framework, information reporting and response office, IRO, and Citizen Participation. The ranking placed 22 institutions that met 100% of ranking standards in the first 22 positions. While the entity in the last position, the National Center for Agricultural Technology (CENTA) only met 8% of ranking standards. Overall, institutions met demands of transparency of the regulatory framework to a greater degree, but failed most in terms of the budgetary framework. The STA also conducted an evaluation of the websites of other public entities. The Judicial Branch and the Technical Unit of the Justice Sector, which is under the authority of the former, got the first two places and the third place is occupied by the Executive, on average. The last place is occupied by the University of El Salvador, with 0% compliance.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

El Salvador was invited to participate in the Open Government Partnership, as it met the minimum eligibility requirements, 44 standing within the 80 countries selected to participate. El Salvador won 12 of 16 possible points in the evaluation of OGP eligibility criteria, strengths included access to information, as the country had a law regulating the matter, and citizen participation, assessed by the EIU Democracy Index, in its “Civil Liberties” indicator. The weaknesses identified were lack of publication of audit reports and confidentiality of asset declarations of public officials and politicians.45 In September 2011, El Salvador sent a letter of intent to participate in the OGP and according to the official website is part of the Partnership since September 20, 2011.46 On April 17, 2012, the Government of El Salvador submitted its draft Action Plan for the OGP Annual Meeting held in Brasilia. However, although it signed the Declaration of Open Government, it has not yet submitted its final commitments.

43

Chávez, Miriam (June 14, 2012). Las instituciones más transparentes. Transparencia Activa. Retrieved on June 22 from http://www.transparenciaactiva.gob.sv/laip/2012/06/lasinstituciones-mas-transparentes/ 44 http://www.opengovpartnership.org/eligibility 45 Open Government Partnership (2011). Eligibility. About. Retrieved on September 30, 2011, http://www.opengovpartnership.org/eligibility 46 Open Government Partnership (2012). El Salvador. Country Commitments. Retrieved on July 27, 2012, from http://www.opengovpartnership.org/countries/el-salvador

 Commitments

The draft Action Plan was prepared by the STA, and derived from a public consultation carried out in a Transparency and Anti-Corruption Policy. The document was submitted in Brasilia by the Secretary of Transparency and Anti-Corruption, Marcos Rodriguez, and must be subjected to a new specific public consultation on the AGA Action Plan. However, to date, there has been no progress in that regard. Instead, efforts have focused mainly on the following topics: the site visit of the Mechanism to Monitor the Implementation of the Inter-American Convention against Corruption (MESICIC) in March 2012; the entry into force of the API Law in May 2012; and the site visit of the Review Mechanism for the Implementation of the United Nations Convention against Corruption in July 2012. Nevertheless, it should be noted that it is important to properly fulfill the commitments acquired by the country. The Action Plan of El Salvador has been linked with a transparency policy that has also been developed by the Government of El Salvador in parallel and, at the time of the meeting in Brasilia, is still in public consultation phase. The policy includes commitments by El Salvador toward the OGP as well as anti-corruption conventions of the Organization of American States and the United Nations. The only limitation is that it would cover the Central Government. It is known that this Policy has already been prepared, but has not yet been approved internally. That would be discussed after the Action Plan itself. The document submitted by the Government of El Salvador in Brasilia should be understood as a draft and not as the final Action Plan, since consultation is pending for giving greater specificity to the commitments it contains. It was in these terms that the Assistant Secretary of Transparency and Corruption of El Salvador, at the annual OGP meeting, has drafted, in those terms, a detailed background document; in which, 3 of 5 pages are devoted to the analysis of high levels of perceived corruption in El Salvador. The objectives pursued in the plan include: “taking measures to allow the country to

continue to progress toward transparency and, prevent and combat corruption, ensuring access promoting integrity in the public and private providing public services.”47 Means for this are:

thus, strengthen existing practices to to information, managing public funds, sectors, promoting participation, and

improving current measures, involving public and private actors and the application of new information technologies. The 21 commitments included in the Action Plan are presented in the following table.

47

Action Plan of the Government of El Salvador to the Open Government Partnership (OGP).

December 2012

Table 1. Commitments of the Government of El Salvador as part of the OGP Action Plan.

Goals
Increase available

Commitments
Opening Response and Information Offices in all institutions of the Executive Body. Opening 14 Response and Information Offices in 14 Governorates,

Deadlines
December 2012

December 2012

information on government activities

other regional and departmental offices of other ministers of state. OBUDSMAN law reform and the right of reply. Disclosing user rights Charter. Citizen monitoring of public services (“The worst handling of my life”) and improvement of key services within 60 days. Developing a distance education program to increase the capacity of public officials on the issue of access to information. December 2013 December 2012 December 2012 December 2012

Support citizen participation and accountability

Improve accountability each year so as to become a corporate culture and an irreversible commitment for future governments.

Until May 2014

Expand Cabinets.

accountability

exercises

for

Departmental

Management

Until May 2014

Implement Integrity Pacts on flagship projects of the Government.

Until May 2014

Public-private system of legal assistance for citizens within each government institution. It will be created in partnership with the private sector, academia and civil society. Strengthening internal auditing and integrity standards Training professionalized audit committees and internal audit units of the Executive on specific topics focused on fighting corruption, such as fraud detection, forensic auditing, procurement processes, preparation of work plans under the approach of risk characterization of an administrative act as a criminal offense, etc. Promoting a political parties law regulating election disclosures. Streamlining processes and transparency in public investment. Study and public presentation of emblematic cases of corruption.

December 2012

Until May 2014 Until May 2014 December 2013

Until May

2014 In coordination with the Ministry of Labor, establishing a job placement service that is mandatory for all entities of the Executive Branch when hiring public employees (whether in the form of wage contract or law), whose objective is transparent and as objective as possible in terms of these processes. Supporting the use of new technologies for transparency and access to information. Opening of Fiscal Transparency website with information on income and spending trends. Post a Private Banking Ranking (with information on fees, requirements, interests) to support reasoned decisions of the population. Publication of a catalog of government priority projects, with consolidated information on the Open Government website. Expansion of e-regulations that benefit international investment. Creating an electronic space within the Single Portal for Transparency called “Focused Transparency” [Transparencia Focalizada], through which the Government provides useful information to the public regarding products, procedures, price, quality and services. Digital Newspaper “Active Transparency” [Transparencia Activa], containing: a) Notes with information that institutions submit to the Executive Branch through its communications office, b) Explanatory notes to correct informative distortions, and c) research on any agenda item. May 2012 December 2012 December 2012 December 2012 December 2012 December 2012 Until May 2014

The proposed commitments are mostly positive, although many are to improve ongoing actions or processes that already constitute legal obligations. Among the positive aspects, access to public information is now a central theme. Among the negative aspects, commitments are mostly very general and abstract and do not assign an applicable authority, making it difficult to evaluate compliance. Nor is there a relationship between public consultation and commitments, so there is no way to determine if commitments respond to citizen needs or demands. Another deficiency of the proposed Action Plan is that it does not address the weaknesses that were identified when El Salvador joined the initiative; these are: an effective and transparent procedure for asset declarations and disclosure of auditing reports issued by the Court of Accounts of the Republic.
 Civil Society

Civil society has monitored the progress of the OGP, but has not, to date, played a leading role demanding greater progress in this area. Civil society organizations participated in focus groups convened by the STA earlier this year on “Transparency and Anti-Corruption Policy”. While the STA opened an online consultation portal for this policy, this tool has not received much response from civil society. The Executive has also failed to encourage greater civil society participation. In that sense, forums or specific consultations regarding the OGP have not been organized; unlike the case of site visits by the monitoring mechanisms of the anti-corruption conventions. On the other hand, the media have not given more coverage to the progress or stagnation in the OGP. Therefore, the issue is not common knowledge among civil society organizations in El Salvador. We must emphasize that civil society has been concerned with very serious problems regarding the weakening of the rule of law and deficient judgments by the Constitutional Court, as well as the rejection of API Institute nominees by the President, and failure – over more than 10 months– to appointment members of the Government Ethics Tribunal, thus depriving the entity of any ability to act. The extent of incompliance with existing standards has been such, that the adoption of new commitments has been relegated. However, Fusades and Apes, as member organizations of Alianza Regional, which has strategically adopted the issue of the OGP, will continue to monitor advancements and shortcomings of the Government of El Salvador toward the OGP. In addition, other organizations, such as the members of the Promoter Group, are expected to become interested in the Partnership, as a vehicle for promoting the guaranteed right of access to public information.  OPEN DATA The issue of open data has not been development in El Salvador. The law on access to information includes article 10, which stipulates that: “in the case of statistical data, said

information shall be published in full and in detail, including sex and age indicators and any other indicator that allows citizens to be properly informed.” However, the public's
ability to reuse data was not addressed. In the near future, the following data should be available in reusable formats: census data (which to some extent has met this requirement), budget information (entities are publishing their budgets in PDF), among other useful data.

1.9. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN GUATEMALA

Acción Ciudadana
President: Manfredo Marroquín Project Coordinator: Marvin Leonel Flores  ACCESS TO PUBLIC INFORMATION: In Guatemala, the Law on Access to Public Information (API Law), Decree No. 57-2008 of Congress, came into effect on April 21, 2009, and is the norm that guarantees access to public information in the country. The process of formulation of the Law was accompanied by Asociación Acción Ciudadana. In addition, expert advice was provided by Mexico and Argentina. It is a modern law that establishes simple procedures and is based on the principles of speed and simplicity (Article 3 of the Law). This law establishes active and passive subjects of law, procedures, penalties and monetary fines, classification procedures for confidential and secret information, duties and functions of the units of access to public information, as well as the annual report that subjects must file with the Office of Human Rights, as the entity responsible for ensuring compliance with the law.
 Main shortcomings and advances in access to information over the last

year in Guatemala. One of the main achievements in the last year is that society has begun to understand and internalize that access to public information is a fundamental right, which does not depend on the willingness of public servants. Another achievement is that some State institutions have developed public institutions that efficiently respond to requests for public information and other mandates established by the Law on Access to Public Information. Shortcomings are concentrated in several entities (social funds, Departmental Development Councils, some municipal governments, and some decentralized and autonomous institutions), after the change in government and the consequent relief of higher authorities and managerial directives, there has been incompliance with some of the provisions of the Law on Access to Public Information, including: failure to maintain access to public information; unqualified personnel in management positions related to public information; inefficient archive management; outdated information on websites (with special emphasis on public information as per article 10 of the Law); information

being unnecessarily declared confidential; and in some cases, information delivery failure. One of the main causes of this is the obsolescence, fragmentation and ineffectiveness of the regulatory framework of civil service in the country. One of the main challenges is the fact that private companies running public resources – trusts, cooperatives, NGOs, etc.– have not complied with the Law on Access to Public Information. Trusts are still excluded from providing requested information on the grounds of bank secrecy, even when such information relates to the financial flows of public resources held in the trust. Civil society actors that have reacted to violations of the right of free access to public information include the media. However, these cases rarely make it to court. In the case of civil society, especially in rural and low-income areas, challenges continue to include lack of knowledge of the law and proactive action to enforce this right.
 OPEN GOVERNMENT PROJECT (OGP)  Membership

The government has signed a commitment to be part of the OGP and is making certain efforts (although poorly coordinated, ineffective, with no priorities and no national policy of transparency and corruption for providing guidance and support) to comply with the commitments made in its Action Plan dated April this year. In our view, the main difficulty faced by this administration (and prior administrations), which took office on January 14, 2012, has been a lack of transparency initiatives (CoST, EITI, CICC, CNUC, etc.), which ultimately led to a clumsy process for drafting and assuming the commitments contained in the plan dated April 9, 2012. We do not fully know the process that led to the incorporation of the government in the OGP initiative. Broadly speaking, the new administration has made some protransparency actions based on social pressure, inertia (although small) of the previous administration, and prior commitments. The State had to assume and account for prior processes and commitments, as these will have been submitted and compliance is being demanded.
 Commitments

Although the Action Plan submitted by the government rightly identifies several challenges and efforts (some only formally completed), commitments are scarce and meager in relation to these challenges and efforts.

There has been absolutely no progress in three of these commitments;48 i.e. numbers one and two. As for item three, the Executive Agency finally reinitiated the CoST and EITI initiatives. We lack reliable news about possible progress in the STAR initiative, although we know of one advancement that is not described in Chapter Three of the Commitments plan: The submission to Congress of a package of laws that promote transparency and accountability and seek to punish acts of corruption more vigorously. The end result of such an attempt depends on Congress, where even though the ruling party has a large bloc of representatives and allied parties, the official bloc is divided into three streams that lack political will for pushing the anti-corruption legislative agenda forward, as evidenced by the recent votes to pass legislation for criminalizing unlawful enrichment, the use of figureheads, the use of privileged information, collecting and receiving illegal commissions, influence peddling, etc. Although the above has no direct link with public access to information per se, it does ensure that access to public information is a means and not an end, making it possible to effectively detect, prevent and punish corrupt actions and emerging practices. The Department of Control and Transparency has actually been created, but to date, the outcome of specific actions, beyond some cases aired in the media, is unknown; and, in our opinion, these cases were motivated by the political interests of the VicePresident (authority responsible for this issue). Points 3 and 4 of Chapter Two of the plan (efforts) have not advanced at all. In point three, no progress has been registered, as there have been no changes in the civil service issue. As far as point 4, e-government faces a deadlock; there has been no progress in the implementation of actions by the previous administration of government. As for the body in charge of access to public information, there are high expectations that the new Ombudsman will drive the Office of Human Rights, for it to be more proactive in promoting and defending the right of Access to Public Information . Acción Ciudadana has already approached the new authorities and these have shown their interest and consent in advancing these and other actions to promote transparency and fight against corruption.
 Civil Society

In the case of the new administration, Acción Ciudadana urged the new authorities and officials to follow up on this initiative because it is unaware of some of its mechanisms

48

See commitments at: http://www.opengovpartnership.org/sites/www.opengovpartnership.org/files/country_action_plans /Guatemala%20OPG%20Action%20Plan%20%2009.04.12.pdf

and procedures. It is worth saying that the same thing happened in initiatives such as CoST, EITI, CICC and CNUC. Although Acción Ciudadana always focuses on providing support and strengthening public institutions, their efforts are not always welcomed, valued or taken into account for specific political reasons at the government level.

Acción Ciudadana develops an ongoing process of evaluation of actions, policies, protransparency processes and instruments emanating from the three branches of government, through the implementation of its various projects related to issues of social spending and investment, justice system, and Congress. Of particular importance is the Legal Assistance Centre in Cases of Corruption (ALAC), which is a legal and political assistance team for cases where public information is denied.  OPEN DATA In the eight months of the new administration there have been major advances in the field, as was the case with the government for the period between 2008 and 2011. Despite continuing to record financial, budgetary and public works, Electronic portals have not been innovated. The best example is the www.guatecompras.gt system, whose level of software development has not progressed to subsequent planned phases. There has been no progress in other areas. For example, SECYT (Department of Control and Transparency of the Vice Presidency) has made no actions for access to public information; even less using this mechanism or civil right as a means of preventing acts of corruption, social audit, etc. In fact, there have been no efforts to even disseminate information on the existence of the body or its broad applications for civil society, the market, political society, or even the action of the state (training public officers, etc.). As for data, according to Acción Ciudadana, in the near future, data must be available in reusable formats when related to public information, as established by Article 10 of the Law on Access to Public Information (Public Information ex officio).

1.10. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN HONDURAS

Fundación Democracia sin Fronteras (FDsF)
Executive Director: José León Aguilar Technical Advisor: José Filadelfo Martínez  ACCESS TO PUBLIC INFORMATION: In Honduras the right of access to public information is regulated by the Transparency and Access to Public Information Law, adopted by Legislative Decree No. 170-2006, published in the Official Gazette on December 30, 2006, on which date it entered into force. The Transparency and Access to Public Information Law defines the institutions required to provide information. The law also stipulates the creation of the Institute for Access to Public Information (API Institute) as the body to comply with the National Transparency Policy. This is the institution that guarantees the right of access to public information.
 Main shortcomings and advances in access to information over the last

year in Honduras. As for shortcomings in access to public information, it should be stressed that management by the commissioners of the Institute for Access to Public Information has been poor and marked by political sectarianism. Internal conflicts between the commissioners led to the resignation of one of its members who was immediately replaced by National Congress; however, disagreements and allegations persisted due to staff members being hired for their partisan affiliation.49 According to the 2011 Annual Report of the National Transparency Anticorruption Council, the API Institute is known by 38.4% of the population and their confidence level is only 20%. It should also be noted that Resolution No. 0018-2008 of the API Institute, at the request of the Ministry of Finance, declared the draft general budget of the Republic as classified until it has been sent to Congress. Several civil society organizations have

49

On August 8, 2012, Congress chose, for a period of five years, three new commissioners through a decision that was widely challenged by civil society organizations on the basis of political sectarianism and exclusion of professional journalists who did not have 10 years of public service. Article 10 of the Law requires 10 years of public service.

expressed discomfort that the Integrated Financial Management System (IFMS) is not available to the public. As far as the role of civil society organizations, the “Social Forum of Public Debt” [ El Foro Social de la Deuda Externa] monitors transparency in budget formulation, while “Transforming Honduras” [Transformemos Honduras] oversees the bidding process and teacher recruitment through an observatory. While Fundación Democracia sin Fronteras presents its annual parliamentary management report which includes the Departmental Fund for Development for the House of Representatives. A report by the Human Rights Commissioner revealed that from 2003 to date, 32 people linked to the media, including journalists, media workers and media owners were killed in violent circumstances.

It also found that between 2006 and 2007, at least 23 journalists were subject to complaints, of which five were convicted in the courts of the Republic.

Another finding in the CONADEH report is that between 2006 and 2011, approximately 59 journalists were subject to persecution, threats and intimidation and 57 were physically assaulted and suffered injuries, while at least five were victims of attacks threatening their lives.

In addition, approximately 16 journalists, cameramen and photographers were detained by police authorities in different events.

In the same period, there were 17 attacks on the media and two were temporarily shut down; in addition, a means of communication was expropriated by the current government. Victims include Angel Villatoro, Alfredo Landaverde and Antonio Trejo; constituting serious shortcomings in freedom of expression and human rights.50
50

http://www.conadeh.hn/index.php/7-conadeh/130-periodistas-no-deben-ser-objetodepersecucion-amenazas-ni-represion

 OPEN GOVERNMENT PROJECT (OGP)
 Membership

During the UN Convention in September 2011, Honduras joined the Open Government Partnership (OGP). The initiative was driven by the President and Secretary of the Presidential Office, Maria Antonieta Guillen. The Government of Honduras had previously fulfilled requirements to be part of the initiative, including:
 

Approving the Transparency and Fight against Corruption Plan, through Executive Decree No. PCM 052-2011. The creation of the National Comprehensive Development Office of Internal Control (ONADICI).

Participants in this initiative also included the National Anti-Corruption Council and API Institute.  Commitments Honduras has an Open Government Plan for 2012. However, even if networking events contemplated in the Open Government Plan were carried out, civil society organizations continue to lack information on such events. The Government of Honduras participated in the First Conference of the OGP held in Brazil in April 2012, where a summary of achievements over the past six years was presented. The National Plan for Transparency and Combating Corruption was approved, establishing clear, and probably ambitious, goals. In addition, the Internal Control Guidelines have weak recognition by civil society. The Plan includes the Ministry of the Presidency, the Institute for Access to Public Information, the Ministry of Planning, the National Anticorruption Council, the National Office for the Development of Internal Control, and the Court of Accounts.
 Civil Society

In general, participation from civil society in Honduras for incorporation into the OGP has been weak and poorly coordinated, largely because the government itself is barely beginning to implement the plan.

In general, Fundación Democracia sin Fronteras has monitored the Open Budget, demanding greater transparency in fiscal policy and public budget execution. Furthermore, an alliance of civil society organizations has played an active role in monitoring the election process of the new commissioners of the Institute for Access to Public Information. In particular, in relation to monitoring the implementation of commitments:
 

Organizations such as the Social Forum of External Debt (FOSDEH) monitor the budget. The National Anti-Corruption Council has constituted a monitoring platform for the API Institute.

 OPEN DATA

API Institute statistics are available on its website on access to information. However, execution of the public budget should be available by municipality.

1.11. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN MEXICO

Centro de Análisis e Investigación
Executive Director: Miguel Pulido Coordinator of Transparency and Accountability: Haydeé Pérez Garrido  ACCESS TO PUBLIC INFORMATION The right of access to information is enshrined in Article 6 of the Constitution of the United States of Mexico and regulated by the Federal Law on Transparency and Access to Public Government Information (FLTAPGI)51 and 32 state laws on the subject. Over 30 years ago, access to public information achieved recognition as a fundamental right in Mexico, by adding the following sentence to the text of article 6 of the Constitution: “the right to information shall be guaranteed by the State.” However, it was not until 2007 that this article was amended through a constitutional reform and its standards and principles were enshrined in the right to access to public information, now endowed with constitutional hierarchy.52 The second transitory article of the constitutional reform decree provides that the federation, the states and the Federal District have the obligation to issue or amend, on a case by case basis, their respective laws on access to public information and transparency to suit the new constitutional order, no later than one year from the time of entry into force of this article (July 20, 2007). By adding this item to the constitutional reform decree, the Constitutional Assembly acknowledges the need to cease the asymmetries and inconsistencies that persist in 32 state and federal laws. Being a fundamental right, access to information can clearly take different forms, depending on the geographical situation, the ruling party or the will of the ruler in turn; any individual should have the same legal certainty to exercise their freedom to meet public affairs. To ensure this, it is essential, but not sufficient, that the 33 laws are approved or that a General Transparency and Access to Information Law is issued, governing access to public information between the federation, the states and municipalities.

51

The FLTAPGI came into force on June 11, 2002. It can be found at: http://www.ifai.org.mx/transparencia/LFTAIPG.pdf 52 The 2007 constitutional reform decree is available in Annex 1.

Unfortunately, after five years, there has been no progress on any of these options; the Federal Legislature has failed to meet its constitutional obligation to reform the Federal Law on Transparency and Access to Public Government Information (FLTAPGI). At this time, some reform initiatives for parliamentary factions were submitted, but none achieved the necessary consensus for an actual reform. Lawmakers engaged in other debates and discussions and placed transparency and access to information in the background. The content of article 5 of the Constitution, as well as the FLTAPGI, can be summarized as follows:

 

All the information held by all government and public institutions in Mexico is public, subject to the exceptions set forth in the law, to protect personal data and privacy of the individual. Procedures to ensure access to information should be substantiated with prompt, specialized and impartial bodies. Transparency is becoming part of the regular practice, even beyond national state institutions, for those subjects or bodies which receive public funding.

However, after 10 years of implementation of the FLTAPGI and 32 local laws on the matter, it is essential to carry out a second generation of reforms on access to information to further the consolidation of the right to know as well as mechanisms for access and their institutions, for the benefit of citizens. This means strengthening monitoring bodies and defining democratic processes for selecting commissioners, giving them legal authority to thoroughly investigate denials of information and ensuring autonomy by way of budgetary sufficiency. Achieving a balance between the protection of personal data and the right of access to information and ensuring that the discussion about what data is private and what is public results from a deliberative process that is open to the public and viewed from a specific context. The motivations of public officials and institutions in general for not meeting information demands must be assessed, such as excessive workload or lack of resources, in order to remove constraints to create incentives for transparency and respect for the right of access to information. Just as the public interest agenda, the prohibition against denying information and obligation to produce information in specific contexts, among others, must be made known to the public.
 Main shortcomings and advances in access to information over the last

year in Mexico. Mexico has faced complex disputes regarding access to information. From last year to date, important cases have been resolved which have confirmed the role of monitoring bodies, the scope of access to information in cases of gross human rights violations and

the constitutionality of an amendment to article 16 of the Federal Code of Criminal Procedure that prevents releasing information on preliminary investigations. A group of cases was decided by the Court in the so-called Transparency and Access to Information package. Together, these cases involved a discussion on the principle of maximum disclosure (SAT Case), the finality of resolutions of guarantors (Campeche Case), and the inclusion of universities as entities. Mexico's participation in the OGP is also noteworthy; but because of its importance, this topic is detailed in the next section.  OPEN GOVERNMENT PARTNERSHIP (OGP)
 Membership

Mexico joined the Open Government Partnership (OGP) after an invitation from the U.S. government to join the Steering Committee of this initiative. Like the other seven countries that make up this Committee, Mexico had to meet three minimum requirements to be accepted, in September 2011:
  

First, four eligibility criteria on fiscal transparency, access to information and citizen participation. Second, signing the Declaration of Principles. Finally, submitting an Action Plan with specific commitments to advance transparency and fight corruption, increase citizen participation in public affairs, and use new technologies to strengthen governance.

For the construction of the Mexican Action Plan, the federal government has consulted organizations and government agencies, as well as eight civil society organizations. However, the final version of the Plan presented in September 2011 in New York City before the international community was not supported by civil society, due to lack of specific commitments and proposals made by the organizations themselves.53 Given this scenario, in December 201, a Tripartite Technical Secretariat (STT) was created and composed of one representative from the organizations, one from the Federal Institute for Access to Information and Protection of Personal Data (IFAI) and one from the Ministry of Public Function (SFP). In this Secretariat, each member has equal voice and voting power. This body, created especially for coordinating the work of

53

The Original Action Plan submitted in September 2011 by the Mexican federal government can be found in Annex 2.

the OGP, was responsible for the development of a new Action Plan and is currently responsible for tracking each of the commitments made. After five months of work and more than 40 sessions between different agencies and civil society organizations, on June 6, 2012, the new Expanded Action Plan was submitted, which gathers the original proposals made by organizations and consists of 36 specific commitments made by various federal government agencies that must be met no later than September of this year.54

 Commitments

Mexico has an Action Plan submitted by the Federal Government in September 2011 and an Expanded Action Plan submitted by the Federal Government and 8 civil society organizations in June 2012. In this section, we will refer only to the Expanded Action Plan because it is the one with concrete and measurable commitments and organizations that have been followed in recent months. Most of the 36 actions pledged by the Federal Government are related to the right of access to public information. In fact, they could be divided into 3 categories:
  

The first would consist of commitments aimed at generating information of public interest in specific contexts. The second is a set of actions aimed at disseminating information, which based on their content, should be public, but are not. The third refers to commitments aimed at promoting access to information in open formats and encouraging the use of information technology (quality of information).

These 36 commitments respond to proposals made by eight civil society organizations involved in the OGP. In most cases, the proposals were based on research and advocacy that has been under development for several years. Similarly, they result from a dialogue between government and civil society and have been aligned with the agendas of the organizations in order to increase the generation, quality and availability of government information. Government actors who drove the initial representation of Mexico in the OGP on an international level and, in turn, coordinated the consultation process with government departments and agencies and civil society organizations for the construction of the

54

The Original Action Plan submitted in June 2012 by the Mexican Federal Government and civil society organizations can be found in Annex 3.

Action Plan included the Federal Institute of Access to Information and Data Protection (IFAI), the Presidency of the Republic, and the Ministry of Foreign Affairs (SRE). Subsequently, the SRE was replaced by the Ministry of Public Service, particularly by the Transparency Policy Unit and its International Cooperation Unit.55 As mentioned, as of December 2011, the body responsible for the process of developing the Expanded Action Plan was the Tripartite Technical Secretariat (STT) composed of Fundar and Centro de Análisis e Investigación, representing civil society organizations involved in the process, as well as a representative of the Federal Institute for Access to Information and Data Protection and a representative of the Ministry of Public Service. This body, created especially for coordinating the work of the OGP, was responsible for the development of the Expanded Action Plan over the last 5 months and from then on, will be responsible for following up each of the commitments made.56 The presidency has followed the process of the Open Government Partnership. However, its participation has been activated at the request of the STT. For example, in order to get the Expanded Action Plan signed, on May 30 this year, the Expanded Working Group, i.e. the STT and social organizations, met with the Chief of Staff of the Presidency to validate the new plan and to request a letter addressed to the agencies and public bodies to urge them to comply in a timely manner with the commitments contained in the Plan.
 Civil Society

Civil society organizations have played a very crucial role in the Open Government Partnership. It should be noted that such participation was not related to promoting the incorporation of Mexico to the Partnership, but instead focused on a later process. Participation of civil society organizations has been important in several respects. First, because it reversed the process and influenced the creation of a second Action Plan with specific commitments, while resuming the proposals made by these organizations. Second, it led to the creation of the STT and participation of organizations. This process

55

The objective of the Transparency Policy Unit and International Cooperation Unit of the Ministry of Public Service is to engage key audiences to build a culture of integrity, transparency and fighting corruption by creating awareness of the costs of corruption and the role of citizens in its control and supporting the promotion of tools and the coordination of efforts in the framework of international instruments. More information about this unit is available at: http://www.funcionpublica.gob.mx/index.php/unidades-administrativas/unidad-de-politicasdetransparencia-y-cooperacion-internacional.html 56 Annex 4 includes the guidelines of the Tripartite Technical Secretariat in this league and the minutes of the meetings that have taken place since December 2012 to date: http://aga.org.mx/SitePages/EstamosHaciendo.aspx

has involved a significant amount of human, material and financial resources that the organizations had not contemplated. However, organizations have adapted their schedules to incorporate some of the objectives of the Partnership and submitted it to the government as a single proposal resulting from their ability to reach a consensus. For now, organizations do not have a clear picture of the specific results of each of the commitments made by the agencies. However, the organizations involved in this initiative and in particular, Fundar, recognized in this partnership a platform for the establishment of a new relationship between society and government, in favor of transparency and accountability. The OGP is the beginning of an open dialogue where government and organizations work together to build a common agenda. This dialogue has contributed to greater understanding between the parties. The agencies are now more familiar with the organizations, their agenda and the objectives they pursue. Organizations, in turn, now have a better understanding of the barriers and constraints that the government faces to meet the proposals. The eight Mexican civil society organizations that have participated in OGP are: Artículo 19; Centro de Investigación para el Desarrollo (CIDAC); CitiVox; Cultura Ecológica; Fundar, Centro de Análisis e Investigación; Gestión Social y Cooperación (GESOC); Instituto Mexicano para la Competitividad (IMCO) and Transparencia Mexicana. However, IMCO is one of the organizations that are part of the Steering Committee of the OGP on an international level and Fundar, Centro de Análisis e Investigación was chosen to represent the organizations in the STT. Because Mexico is part of the 8 founding members of the Partnership, it was supposed to submit its Compliance Report in February 2013. However, due to the national context, i.e. recent elections and change in government, a decision was made to publish this document in September this year and to update it in late November. In fact, at this time, said Compliance Report is currently being drafted. Organizations are analyzing the best way to capture the level of compliance with each of the commitments in the compliance report. To date, no decision has been made; however, three aspects are being analyzed: a) Government availability and attitude, b) specific work program, and c) progress on work plans.  OPEN DATA The issue of open data is still subject to conceptualization and development of policy instruments that make it operational. However, there has been some progress worth noting, including:

    

Interoperability and Open Data Plan: http://dof.gob.mx/nota_detalle.php?codigo=5208001&fecha=06/09/2011 Budget Transparency page of the Ministry of Finance and Public Credit (SHCP): http://www.transparenciapresupuestaria.gob.mx/ptp/index.jsp IFAI Open Data Site: https://www.infomex.org.mx/gobiernofederal/homeOpenData.action Open data portal for citizens of the Federal Government: www.gob.mx.

1.12. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN NICARAGUA

Fundación Violeta Barrios de Chamorro (FBVCH)
Executive Director: Cristiana Chamorro API Program Coordinator: Guillermo Medrano  ACCESS TO PUBLIC INFORMATION In Nicaragua the right of access to public information is regulated by the Law on Access to Public Information, No. 621, adopted by the National Assembly on May 16, 2007 and published in the Official Gazette of June 22, 2007. This law regulates, protects and promotes the right of access to public information in the country. Law No. 621 regulates the four branches of government: Executive, Legislative, Judicial and Electoral, as well as all their areas, on a national, departmental, and municipal level. It also applies to regional governments and municipal governments (mayors). They law is applicable to all the departments of the State and Government. Regional and municipal governments are obligated to create an Office of Access to Public Information, which must operate independently and report directly to the highest authority in each state entity.
 Main shortcomings and advances in access to information over the last

year in Nicaragua bn. In terms of access to public information, over the past year, there has been little progress and little knowledge of the law from the point of view of State Institutions. Five years after approval of the Law on Access to Public Information, government institutions, including municipal governments, have not yet displayed any political will to comply. It is also noteworthy that journalists have been intimidated in terms of their right to request public information, mainly in municipalities. Mayors and state institutions in the territories use politics to shut down any professional who is advertising guidelines on the basis of the law.57 Another practice related state secrecy of information is the refusal to give interviews, conferences or provide public information. As a result of this policy of secrecy that has

57

http://www.estasemana.tv/archivo/2011/mayo/743 http://es.rsf.org/nicaragua-una-campana-de-acoso-politico-y-10-10-2008,28892.html

been implemented in all government institutions, there is an unfounded fear among public officials to provide information. Moreover, state and municipal institutional websites do not comply with their obligations to serve the public with respect to this right. On the contrary, these pages contain large amounts of party propaganda but little institutional information. This translates into a permanent breach of official information that should be disclosed in the web portals of all public entities included in the API Law. Similarly, none of the branches of government or municipal or regional governments have created the Coordination of Access to Public Information, where citizens can appeal denied requests of public information; that is, appeals in case of refusal on behalf of a State entity. The Law allows for an appeal to the highest authority of that institution (minister). Given the silence and lack of response of that authority, the only option is to resort to the courts, specifically the Administrative Litigation Chamber of the Supreme Court of Justice.

With respect to the role of civil society organizations regarding the above shortcomings, the Violeta Barrios de Chamorro Foundation has taken the lead in implementing the Law

by implement, for five consecutive years, various measures for effective enforcement of the API Law. These actions can be summarized as: broadcasting commercials, 58 seminars, courses with college students, and the promotion and support of volunteer citizens who have requested information from public institutions. In parallel, the Foundation has sensitized members of municipal governments to attempt to get their respective municipalities to enforce the Law on Access to Public Information (by opening the Offices of Access to Public Information, OAP). In short, there is a deadlock in compliance with the Law; however, different forms of promotion by the Violeta Barrios de Chamorro Foundation has led to public empowerment for the exercise of the right to public information before state institutions.  OPEN GOVERNMENT PROJECT (OGP)
 Membership

Nicaragua is not part of the Open Government Partnership (OGP). So far, no government official has made any sort of comment, either positive or negative, for the country to enter or take part of this regional initiative. Nor has it acted in any way. The current government, which has signed and is a member of the ALBA, has only recognized and implemented this model in terms of governance.
 Commitments

Although Nicaragua is not currently a member of the OGP, the Violeta Barrios de Chamorro Foundation believes that the government should commit to advancing the right of access to information on the following points:
 

Compliance with the Law on Access to Public Information in all state institutions, creating the Office of Access to Public Information (API Office). Breaking all state institutions away from political parties so as to elect officials on the basis of their technical capabilities, instead of their obedience or political party affiliation. Compliance with standards of transparency, to be considered a member of the OGP.
 Civil Society

58

http://www.youtube.com/watch?v=IVmef8sPw80 http://www.youtube.com/watch?NR=1&feature=endscreen&v=X6YpVoFN5bg http://www.youtube.com/watch?v=lr5UjFJfPew&feature=related

Unfortunately the current government has no communication with Civil Society Organizations; instead, the government disqualifies them as enemies of the people or government destabilizers.59 In order to make better use of communication technologies and direct them to transparent management of state institutions in Nicaragua, several civil society organizations have encouraged the Government of Nicaragua to enter into a multilateral initiative to promote concrete commitments for governments to advance transparency, accountability, citizen empowerment, and the fight against corruption, through close cooperation between the authorities and civil society. Some Nicaraguan civil society organizations concerned with limited access to government information and accountability of government institutions, in conjunction with the Violeta Barrios de Chamorro Foundation, who has been the champion of the issue of access to Public Information, have encouraged Nicaraguan government authorities to join this international initiative, which seeks to ensure government commitments to transparency, as well as empowering citizens to use new tools to actively participate in promoting transparency in government institutions, fighting corruption, and leading and demanding effective accountability.

59

http://www.laprensa.com.ni/2012/06/24/portada/106166/imprimir

1.13. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN PANAMA For information on the Right of Access to Public Information in Panama, see the Saber Más report 60 and Saber Más II,61 as well as the following site:

Consejo Nacional de Periodismo (CNP)
www.cnppanama.org

60 61

http://alianzaregional.net/site/images/stories/saber_mas.pdf http://www.said-on-net.com/alianza/septiembre_2010/SABERMASII.pdf

1.14. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN PARAGUAY

Instituto de Derecho y Economía Ambiental (IDEA)
Executive Director: Ezequiel Santagada  ACCESS TO PUBLIC INFORMATION There is no law on Access to Public Information in Paraguay. However, any resident of the Republic may submit a request for access to public information to government departments on the basis of the provisions of Articles 28 (right to information), 40 (right to petition the authorities) and 45 (operation of constitutional rights and guarantees) of the Constitution of Paraguay. In addition, on the basis of Art 137 (primacy of the Constitution and supra-legal category of international treaties), Article 19 of the International Covenant on Civil and Political Rights and 13 of the American Convention on Human Rights can be invoked for the exercise of this right. In turn, since the enactment of “Organic Municipal” Law No. 3966/10, municipal governments must “provide all public information that is created or obtained in

accordance with Article 28, ‘Right to information,’ of the Constitution, within no more than fifteen days.”
Some local governments have ordinances that regulate access to municipal public information (Asunción, Villarrica, Pilar, Bahía Negra, among others). Similarly, some of the executive branch ministries have regulated access to information generated or obtained through resolutions (e.g., Ministry of Agriculture and Livestock, Res. 1216/07).

 Main shortcomings and advances in access to information over the last

year in Paraguay. Amid a citizen-organized mobilization through social networks, between late May and early June 2012 –against the bill increasing the budget of the Superior Court of Electoral Justice for political party “operators” to USD 50 million–62 and whilst demanding the release of “ready sheets” [listas sábanas], Colorado Senator Orlando Fiorotto submitted a draft law on access to information.

62

http://www.abc.com.py/edicion-impresa/politica/senado--otorga-g-215000-millones-atribunalpara-sostener-operadores-394573.html

Although the draft law is an attempt to copy Chilean Law No. 20,285 on access to information, it did not take into account that by stipulating that refusals to provide information must be appealed before the courts for judicial review, in Paraguay, in practice, this meant having to litigate exclusively in Asuncion. Senator Fiorotto wanted to capitalize on citizen discontent by presenting a bill that, a priori, could have catapulted him as one of the politicians who could interpret and meet popular demands. As he later acknowledged, he disregarded the history surrounding a project of such characteristics. Unsurprisingly (given the history of the process towards an API Law in Paraguay), the newspaper ABC Color launched a strong campaign against the draft resolution on Saturday, June 2, titled “Proponen que el presidente Lugo nombre un funcionario para regular la información” [A proposal was submitted for President Lugo to appoint an official to regulate information], 63 and on Sunday the 3rd, the front page read: “Fiorotto quiere retirar su proyecto, pero Estigarribia plantea debatirlo” [Fiorotto wishes to withdraw his draft resolution, but Estigarribia plans to tear it down isntead]; 64 finally, on Monday, June 4, the headlines read: “Estigarribia apoya retiro de proyecto sobre información” [Estigarribia supports withdrawal of draft resolution on information]. 65 On June 5, Senator Fiorotto subsequently withdrew his bill.66 Upon submission of the proposal by Senator Fiorotto and the consequent reaction of ABC Color, the Promoter Group of Access to Information, GIAI (CSOs promoting a law on access to information in Paraguay), decided that it would be best to wait until the following year to try to submit the draft law by the OSCs that make up the GIAI, with collaboration from experts from Alianza Regional. This bill also has the support of the Forum of Journalists of Paraguay.
 OPEN GOVERNMENT PROJECT (OGP)  Membership

In November 2011, the Ministry of Planning (STP) of the Presidency of the Republic asked to be part of the PMO and adhered to its principles. The STP had the cooperation

63

http://www.abc.com.py/edicion-impresa/politica/proponen-que-el-presidente-lugo-nombreunfuncionario-para-regular-la-informacion-409246.html 64 http://www.abc.com.py/edicion-impresa/politica/fiorotto-quiere-retirar-su-proyectoperoestigarribia-plantea-debatirlo-409570.html 65 http://www.abc.com.py/edicion-impresa/politica/estigarribia-apoya-retiro-de-proyectosobreinformacion-409813.html
66

http://www.congreso.gov.py/silpy/main.php?pagina=info_proyectos&&paginaResultado=info_tramitacion&id Proyecto=5425

of the civil society organization Gestión Ambiental (Geam), as part of its Democracy Program “Governance Quality” [Calidad de gestión pública] which was, in turn, supported by the U.S. Agency for International Development (USAID).67 Geam merely provided technical support to the STP for developing the Action Plan. At the meeting of the Open Government Partnership held in Brasilia on April17 and 18, 2012, the STP submitted Paraguay's Action Plan.68
 Commitments

According to the Action Plan submitted by the Paraguayan government, actions related to the right of access to public information are:
­

Development of Comprehensive Legal Information involving the three branches of government (executive, legislative and judicial). Estimated time for implementation: In the implementation process, effective by the end of 2013. Agencies: Technical Unit for Public Administration Modernization, ICT Master Plan, Judiciary and Legislature. Implementation of the Integrated Management of Public Administration Procedures (SIGTAP) in most institutions. Estimated time for implementation: This action is in the middle stage of implementation; and sustainable ongoing in some ministries. Agencies: Technical Unit for Public Administration Modernization (UTMAP) and entities and members of the system. Currently, 10 ministries and decentralized agencies already own and use this system which is operational in MIC, INCOOP, INDI, SET, SEAM, INTN. Work is also being done with the Judicial Council, Paraguayan Communications Company, Advocacy Treasury, Ministry of Returnees, Ministry of Women, Ministry of Planning, among many others. Implementation is also expected in the governorates of the country. Implementation of the Standard Internal Control Model for Public Institutions in Paraguay (MECIP). Estimated time for implementation: In current implementation, aimed at increasing the number of institutions involved, focusing particularly on “poor or inadequate” compliance with established standards.

­

­

67

http://www.geam.org.py/v3/cgp/2011/11/24/paraguay-integra-la-alianza-de-sociedaddegobierno-abierto/ 68 The document is available at http://www.stp.gov.py/Noticia/14431

Agencies: Auditor General of the Executive and institutions involved in the development of the MECIP.
­

Development of a unique portal for submitting and updating reports on compliance with international standards on corruption. Estimated time for implementation: Currently in technical adjustment process, will be implemented by 2012. Agencies: Directorate General for Integrity and institutions complying with rules on anti-corruption.

These commitments were made by an “inter-agency working group” consisting of the Civil Cabinet of the Presidency, through its agencies: Integrity Directorate (DNI), Technical Unit for Public Administration Modernization (UTMAP), and ICT Master Plan, as well as the Auditor General of the Executive Branch, the Ministry of Foreign Affairs, the Ministry of Planning and the Ministry of Public Service. A presentation was later submitted to civil society organizations, other guilds and other academic institutions, in which there was no opportunity to provide input to modify the Action Plan. Thus, the Action Plan mentions the following:

“Finally, after the experience of Citizen Involvement Day, it was considered appropriate to think of potential actions to integrate the proposals of different sectors from those already outlined in the 2012 Action Plan. That is, the Plan does not have a closed design, instead it is in permanent construction with public participation; it is feasible to the extent that we can display the actions that attract and bring together certain social sectors, from a position of thematic interest and challenges relating to Open Government compliance.”
To date, no formal mechanism for consultation and participation has been implemented.
 Civil Society

As mentioned, Geam has supported the STP in developing the Action Plan. The only public intervention of civil society organizations, so far, has been participating in the presentation of the Action Plan. Member organizations of the Promoter Group of Access to Information (GIAI) have demanded a space for participation, both publically and via emails sent to Hugo Royg, former Minister of the STP. After the ousting of former President Fernando Lugo, there has been no contact with any of the organizations that work toward reaching OGP objectives.

In addition, the only organizations that have tried to participate in the process were Centro de Estudios Judiciales (CEJ), who attended the OGP meeting in Brasilia in April 2012 and Instituto de Derecho y Economía Ambiental (IDEA), who came into contact with civil society coordinators of the OGP. In the document presenting the Action Plan, the following is mentioned:

“(…) At the conference, the public’s expectations toward the issues discussed became evident, demonstrating the need for a space to discuss and address what we have and what we are missing. At the event, and through other means of consultation and participation, the need for generation of these spaces of dialogue between the state and civil society was also discussed. Suggestions included, among others, the need for expansion of conferences and meetings, and their implementation in different regions of the country; the need to integrate permanent consultation mechanisms with citizens or citizen “observatories” to help control and monitor actions and commitments. The potential of technological resources (internet, social networks, etc.) was also emphasized to broaden and deepen the opportunities for debate and citizen receipt of proposals as well as the need to take advantage of opportunities to disseminate the initiative (…).”
Despite this, we reiterate that there has been no joint effort between the government and civil society organizations. There are also no ongoing monitoring plans. This is due to the still limited openness of the government toward working with civil society organizations on OGP issues and toward rearrangements taking place after the change of government that followed the impeachment of former President Lugo. Adding to this, there has been some apathy from civil society toward the local OGP process.

Instituto de Derecho y Economía Ambiental (IDEA) consulted with new authorities of the
STP on how they planned to continue Paraguay's participation in the OGP. The answer, by officer Reuben Cubilla, was the following: “(…) The OGP process was led by the STP because it was once a priority of Minister Hugo Royg, hence Paraguay's participation was promoted and coordinated by the STP. To this end, an interinstitutional working group was formed who proposed the actions to be developed in the Plan. Today the process is on “stand by” mode, as there have been changes in institutions and many of those who participated in the work table are gone. Meanwhile, we are expecting an official communication from Brazil and the U.S. to reconfirm Paraguay as a member of the OGP. However, in discussions with the authorities of the

institutions that are part of the working group, there is consensus that the process will continue to be driven from inside and outside the OGP.”69
 OPEN DATA

Within the limited open data experience, we highlight the portal of the Ministry of Treasury (www.hacienda.gov.py), which made cadastral mappings of the National Cadastral Service available to the public, in Autocad format, (http://www.hacienda.gov.py/webcatastro/index.php?c=125) and the Ministry of Environment, which has publicly available satellite maps at (http://maps.seam.gov.py:8399/Satelital_Maps/mapviewer.jsf?width=973&height =605). The priority in terms of open data that should be made available to the public includes any data that is directly related to the quality of life of the people: public health, safety, consumer protection and public services, environmental issues, personal papers, etcetera.

69

Response from Cubilla Ruben to Ezequiel Santagada on September 26, 2012.

1.15. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN PERU

Instituto Prensa y Sociedad (IPYS)
Executive Director: Ricardo Uceda Program Coordinator: Mayumi Ortecho  ACCESS TO PUBLIC INFORMATION August 3, 2012 marked 10 years since the enactment of Law No. 27,806, known as the Law of Transparency and Access to Public Information, which regulates this fundamental right in all public institutions nationwide at every level. This anniversary merited an evaluation by public and civil organizations of the impact of that norm.70 Law No. 27,806 is a general and mandatory norm that is applicable to all public agencies without exception. It also applies to the three branches of government and other constitutional bodies. The Law of Transparency and Access to Public Information contains general policies on transparency, standardizes procedures for access to public information in all public entities, and sets high standards to be met by the responsible officials. The law does not establish an institution that is expressly and specifically in charge of the implementation and control of access to public information norms. However, in practice, the Ombudsman's Office, as part of its general constitutional duties to defend constitutional and fundamental rights, as well as monitor compliance with the functions of state administration, has assumed some supervisory functions in compliance with the Access to Public Information (API) norm. Within the Executive Branch, there are two agencies that, despite not being in strict compliance and enforcement of API regulations, still perform certain specific functions on transparency and access to public information. They are the Secretariat of Public Management and the Secretariat Coordination, both of which report to the Presidency of the Council of Ministers (PCM). Both agencies are under the authority of the General Secretariat of the PCM, a body that, in turn, reports to the President of the Council of Ministers; thus, those departments are part of the third level in the hierarchy of the PCM, which coordinates all organs of the Executive Branch. The Coordination Secretariat is responsible for coordinating the PCM with Congress, as well as autonomous constitutional bodies other than the judiciary and the Public

70

See: http://www.ipys.org/noticia/1362

Ministry, decentralized public agencies assigned to the Presidency Sector of the Council of Ministers, various state entities other than the Executive, business associations, and other civil society entities. Among its eleven normatively established functions, it is responsible for “collecting, from all the public administration entities, information requests and orders attended and unattended, in the framework of the Law of Transparency and Access to Public Information and preparing an annual report to be submitted to Congress. In that regard, in the Fourth Conference on Transparency and Access to Public Information held in 2011, the Ombudsman proposed the creation of an institution with functional autonomy specialized in transparency for resolving breaches of transparency and access regulation in administrative proceedings. It should be noted that in the ten years of operation of the Law, citizens have practically one option when information requests are denied, which is to resort to the judiciary, through a process of habeas data that could even lead to the Constitutional Court, without any guarantees of favorable judgments after several years. The IPYS has been making efforts to generate public debate regarding the creation of an entity with the characteristics mentioned above. The Fifth Conference on Transparency and Access to Information, held in November 2012, had the main objective of demonstrating the benefits of incorporating into our legislation an enforcement authority of the Law of Transparency and Access to Information.

 Main shortcomings and advances in access to information over the last

year in Peru. In January 2012, the Ministry of Public Management of the Presidency of the Council of Ministers convened representatives of public and civil society organizations to a process for formulating proposals for amending the regulations of the Law of Transparency and Access to Public Information. To that effect, five thematic working groups were created:
1. 2. 3. 4. 5.

Mandatory Entities: State Enterprises Responsibilities and sanctions Exceptions to the enjoyment of rights Filing and conservation of information Portal Transparency Standards

Thus, in August 2012, the first proposal to amend the Regulations of the Law of Transparency and Access to Public Information prepared by the legal counsel of Instituto

Prensa y Sociedad, Roberto Pereira Chumbe, was presented, which collected all
contributions since January of this year.

 OPEN GOVERNMENT PROJECT (OGP)  Membership

In September 2011, the Government of Peru expressed its willingness to be part of the “Open Government Partnership”, driven by the United States of America and Brazil, pledging to raise transparency standards in government activities, supporting and promoting citizen participation, improving the quality of professional integrity in governance and increasing access and use of new technologies (Open Government Declaration, September 2011). Peru's Action Plan was approved by Ministerial Resolution No. 085-2012-PCM dated April 9, 2012. The plan directs the sum of efforts toward meeting four major challenges:
1. Reviewing

and improving the regulatory framework and implementation mechanisms on transparency and access to information, accountability and anticorruption. 2. Promoting informed participation and citizen monitoring and alerting. 3. Increasing public integrity by ensuring modern civil service and integrity, procurement systems armored against corruption and effective control and deterrent methods. 4. Improving the quality of public services, particularly those targeted to sectors of the population living in poverty, and ensuring information and complaints mechanisms to monitor their performance. Peru's commitments for the next two years for improving levels of transparency and access to public information are:
a) Revising regulations on transparency and access to public information that

comprise public administration entities and civil society organizations, which were created in December 2011 to develop a proposal to amend legislation that will strengthen transparency in governance to be submitted throughout 2012. b) Defining performance indicators of the standards expected at each level of government and ensuring the training of personnel in charge of the tasks of transparency and access to information in all State institutions.

c) Having user-friendly Standard Transparency Portals that are easy to understand

and regularly updated by all entities of the three levels of government, prioritizing technical assistance to rural municipalities included in the list approved by the Presidency of the Council of Ministers in 2011. d) Establishing profiles for officials responsible for access to information and officials responsible for customer service, to improve quality of care and access to public information. e) Evaluating the creation of an autonomous institution dedicated to ensuring the protection of the right of access to public information, solving problems and conflicts that arise between the parties required to provide public information and applicants, and with the capacity to penalize cases of noncompliance. The Model Law on Transparency and Access to Public Information will constitute a reference in this discussion.
 Civil Society

The Presidency of the Council of Ministers and the Ministry of Foreign Affairs convened a group of expert institutions on the issue of transparency and accountability, creating the “Open Government Initiative” Working Group. In the beginning, there was participation from civil society organizations such as Ciudadanos al Día, Asociación Nacional de Centros de Investigación, Promoción Social y Desarrollo, Consejo de la Prensa Peruana and Proética. In this line, in the month of May 2012, Instituto de Prensa y Sociedad was called to an initial meeting to provide input related to how to organize the commitments mentioned in Peru's Action Plan before the Open Government Partnership. Monitoring plans are still in the implementation stage. In this regard, IPYS noted that civil society organizations should make commitments according to their area of specialization, so as to work more efficiently. In addition, IPYS results suggested that the reports prepared by civil society organizations should be presented in the Fifth Conference on Transparency and Access to Public Information organized by the Ombudsman and IPYS.
 OPEN DATA

It should be noted that since 2011, the Municipality of Lima is the only public institution that has added to its new Portal, at www.munlima.gob.pe, a section dedicated to Open Data; thus showing its willingness to share information in its most basic form. Available information pertains to transport, business development, civil defense, health, management, finance, among others.

The initiative received technical assistance from World Bank consultants, as well as collaboration with the Escuelab group.

1.16. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN THE DOMINICAN REPUBLIC

Participación Ciudadana
Director of Transparency and Government Area Carlos Pimentel  ACCESS TO PUBLIC INFORMATION The Dominican Republic has a general law on free access to public information (Law No. 200-04) as well as enforcement regulations (130-05) that are universal and establish procedures and/or legal mechanisms for regulating the exercise of the right of every person to access information from public entities. The first article of the law guarantees anyone the constitutional right to seek and receive complete, accurate, adequate and timely information from any State organ and all corporations and joint-stock companies with state participation. It also establishes that information from centralized, autonomous and decentralized state agencies, including municipalities, must be offered to anyone interested, provided they do not affect national security, public order or the right to privacy and reputation of others. It also contains, in turn, penalties for officials who fail to comply.
 Main shortcomings and advances in access to information over the

last year in the Dominican Republic. Progress in terms of compliance with the provisions of Law No. 200-04 by target public entities has been slow. But it can be noted that in the past year, a significant number of public institutions have opened offices for access to public information. According to the 5th report monitoring the implementation of Law No. 200-04, made by Participación Ciudadana in February 2011, 20% of a total of 82 public entities had not opened their office for access to public information, thus violating the law. By July of 2012, the percentage of institutions without offices for access to information has been reduced to 10%, from 82 monitored entities. Another advancement in the enforcement of the law has been the link to electronic transparency portals of public institutions. However, in terms of timeliness, completeness and accuracy of the information presented, there has been no significant progress. The significant decline in access to public information in Dominican Republic is visible in judgments No. 137-2012 and 138-2012, issued by the Third Chamber of the Supreme Court. These judgments establish the confidentiality of data that should appear on public

institution rosters, such as: name, last name, identification number of officials and public employees. The judges substantiated their decisions on the grounds of “personal data protection”, “national security” and violation of Article 44 of the Constitution, governing the right to privacy. Conflicts have recently erupted because of the denial of information to citizens who ask public institutions for data such as: payrolls and different social and other beneficiaries. At the same time, public institutions allege that a lot of the information required by the public contains personal data, such as ID numbers and, therefore, the release of this information could constitute a violation of the right to privacy of individuals working in various institutions. This creates a legal dilemma, since the law on access to public information orders the disclosure of truthful information to users who request it and in many cases, identification numbers of officials in the public payroll allow comparisons and analysis of staff working in various institutions. Moreover, it is noteworthy that to date, in Dominican Republic, there is no independent governing body to act as a supervisory body with the function of socialization and dissemination of the right of access to information. Despite the effort of developing a draft bill for creating the Dominican Institute of Access to Information, the relevance of legal creation of a body to monitor the implementation of standards is still under discussion, pondering whether this type agency actually facilitates the flow of information or creates complications and bureaucracy instead, when it should be a simple procedure. Civil society organizations in Dominican Republic have developed different actions to ensure the enforcement and implementation of the Law on Free Access to Information; these are listed below.
    

Advocacy for a bill for creating the Dominican Institute for Access to Information. Promotion of a Draft Resolution on Personal Data. Monitoring the Implementation of the Law on Access to Public Information. Writs for Appealing violations of the Law on Access to Information. Proceedings before the Supreme Court and the Constitutional Court on access to Information.

 OPEN GOVERNMENT PROJECT (OGP)  Membership

The Dominican Republic signed the commitment to join the OGP. Like many countries that meet minimum standards for transparency, the process began with an invitation to participate in this initiative.

The Minister of the Presidency, Dr. Cesar Pina Toribio, accepted the invitation extended by the Ambassador of the United States in the Dominican Republic, Raul Yzaguirre. Similarly, he attended the event which took place on July 12, 2011 at the State Department in Washington, DC. The Dominican Republic, through Dr. Cesar Pina Toribio, Minister of the Presidency, sent a letter to the governments of the United States and Brazil, informing these countries of President’s intention for the country to take part in the Open Government Partnership (OGP). This manifestation of intention merited an invitation for President Leonel Fernandez to participate in the event held in New York on September 20, 2011. Meanwhile, the Minister of the Presidency participated in a series of conferences and workshops held at Google headquarters in New York, where steps for implementing Open Government were discussed. Although the Action Plan and commitments were given by the Government to the OGP, civil society does not know the details of the process of developing them. In that sense, Participación Ciudadana has received no information, beyond the documents uploaded to the OGP and the Ministry of the Presidency websites. Dominican civil society organizations were not part of the process of developing the Action Plan, nor have been informed of any administrative actions (decrees, resolutions, norms) through which the plan was approved. The General Directorate of Government Ethics and Integrity was recently created as the lead agency on ethics, transparency, open government, fighting against corruption, conflict of interest and free access to information on an administrative government level. This body will be responsible for ensuring the dissemination and implementation of the Action Plan of the Dominican government.
 Commitments

As we have mentioned, although the Action Plan and commitments were given by the Government to the OGP, civil society did not know the details of the process of developing them.
 Civil Society

Civil society organizations in Dominican Republic are uninformed about the process undertaken by the Dominican government in the framework of the OGP. As described above, the government has not conducted any meetings or consultations with civil society organizations.

However, Participación Ciudadana, along with 15 other civil society organizations, plans to implement a system for monitoring and following the commitments of the Dominican government. Under the Citizen Observatory, civil society organizations take on the task of monitoring the implementation of Anti-Corruption Policy (OCI-PAC) and the Institutional Transparency Protocol in the Dominican Republic, signed by the six (6) presidential candidates during the 2012 election. Also as part of the Anti-Corruption Policy (OCI-PAC), the declaration signed by government authorities with the Open Government Partnership (OGP) in 2011 will be monitored; as will commitments made by the government. In that sense, OCI-PAC monitoring will focus on the following:
 

Part of the recommendations of the IPAC that were preselected on the basis of civil society priorities. Follow-up of the Transparency Protocol signed by six presidential candidates of the Dominican Republic, which contains 21 items that should be monitored in the first months of government once the new administration takes office. Follow-up on commitments submitted before the Open Government Partnership by the Dominican government.

 OPEN DATA

Open data in the Dominican Republic is an issue that has not yet generated debate. This is because there is very little knowledge at the level of government officials and civil society organizations on the issue. That is why it is not part of the agenda for promoting transparency policies. Dominican Republic data that should be in reusable formats for ensuring transparency include:
         

Budgets and Expenditure Data Public Procurement Data Details of the Internal and External Public Debt Grants and Subsidies Data Public Announcements of Newly Hired Personnel Complaints and Claims Data Awards and Contests Data Mining Concessions Data Public Employment Data Statistical Data of Supervisory Bodies and State Financial Agencies

  

Basic Municipal Data Country's Macroeconomic Data Utilities Data

1.17. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN URUGUAY

Centro de Archivos y Acceso a la Información (Cainfo)
Executive Director: Edison Lanza Development programs: Mariana Mas  ACCESS TO PUBLIC INFORMATION In Uruguay, the right of access to public information (API Decree) is regulated by Law No. 18,381, which establishes a specific administrative procedure for access to public information and transparency obligations, as well as the creation of a supervisory body and an effective means for judicial appeal for compliance with the law. The explicit purpose of the law is to give the public administration a greater degree of transparency, establish accountability obligations for agencies, allow effective participation of citizens in matters of public interest and facilitate social control of State governance. The law is applicable to “state or non-state public entities”. This terse definition has not hindered enforcement of the law before all branches of government, central government agencies, autonomous entities and decentralized services, and even state governments. However, the enforcement agency has found that private commercial companies with shared capital owned by the State are not obligated under this law. In the case of Uruguay, the fact that such a body is not obliged by the API Decree has a high impact on lack of transparency. Uruguay has approved the creation of a new figure in the state sector whereby state investment on infrastructure projects is partly financed by private partners and governed under private law. The lack of transparency in these initiatives is dangerous because of the risks involved in terms of accountability, responsibility and even corruption. The definition of public information available by law is broad (art. 2) and includes: “ all information generated by or in the hands of” entities that are subject to the API Decree. According to this definition, all information produced, obtained, held or controlled by regulated entities is presumed to be public, regardless of the medium in which they are contained. Although this broad definition is undetermined in nature, so far, it has not caused problems in terms of the interpretation of public information. Unlike what happens with other legislation, Uruguayan law does not provide a chapter with the principles of access to public information. However, these are implicitly

incorporated into national law by Articles 72 and 82 of the Constitution (which include all rights inherent to the human personality and derived from the republican form of government); in addition, the access law itself contains principles of maximum transparency, freedom, right to an effective remedy, among others. Although it may not be the best method for implementation, the decree through which the API Decree came into force represented a step forward toward the systematization of these principles. Meanwhile, Chapter II contains the following principles: freedom of information, transparency, maximum publicity, divisibility, absence of ritualism, nondiscrimination, opportunity, responsibility, and gratuity (arts. 4 to 12). Furthermore, in Article 24 the decree regulated the so-called “proof of harm” as a requirement for the denial of information on the grounds of the exceptions mentioned in the law. The administrative procedure is regulated by Articles 13-18 of Law No. 18,381. The application may be filed by “any natural or legal person” (Article 13). The broad definition, without discriminating by nationality or characteristics of the applicant, meets international standards. Main features of the law on access to public information:

 

The request for access to information can be exercised without the need to “justify the reasons for requesting the information” (Art. 3 and 13 of Law No. 13.381). Application, transaction and access are free. The interested party will be responsible for covering its reproduction, but will only pay the cost of the medium in which the information is delivered, without any additional fees (art. 17). The definition includes an express prohibition against imposing any other costs aside from those of the medium on which information is delivered, thus banning the administration from imposing barriers on access and protecting the administration from irrational requests from applicants. The procedure provides for a period of 20 business days for granting or denying access to information, by a reasoned decision; however, it allows for information to be granted upon request. The entity can also request an extension for another 20 days, by providing the reasons for the request in writing. (art. 15) Neither the law nor any decree provides a specific and mandatory counseling mechanism. The entity may deny access to information only by way of a reasoned decision by its superior entity, detailing the legal grounds under which said information is secret or confidential. Once the 20 day period expires, the API Decree includes a groundbreaking provision by which no response by the State is presumed to be a

positive response and, therefore, officials are obliged to grant the information requested. The law does not include an appeals system within the administrative process; instead it provides a specific judicial remedy for access to information that can be directly used upon refusal or failure to provide information, which is described in the next chapter.
 Main shortcomings and advances in access to information over the last

year in Uruguay. Achievements:
­

­

Creation of the “Transparency Award”: This award, established by the Agency for Electronic Government and Information Society (AGESIC) is a contest in which agencies governed under Law No. 18,381 can participate. Its purpose is to foster a culture of transparency and accountability within the Right of Access to Public Information. To achieve this, it aims to identify, recognize and disseminate achievements on a national level among participating institutions in terms of active transparency, passive transparency, information systems, and development of a culture of transparency. API Online Course: The Access to Public Information Unit has developed an online course surrounding Law No. 18,381 on Access to Public Information for government officials. The course is interactive, self-administered and can be taken by government officials or any citizen who wants to know general aspects of the law.

Shortcomings:
­

­

Weak oversight by the supervisory bodies of API policy: In Uruguay the supervisory body of API is the Unit of Access to Public Information. The regulatory design of this body has weaknesses in terms of institutional position. Despite being a council that has technical and institutional independence, its directors are appointed directly by the Executive and one of its three members is the president of the Agency for Electronic Government (Agesic), the agency in which it is embedded. Its recommendations are not binding and are subject to an administrative appeal that is resolved by the Presidency of the Republic. Some of the agencies obligated to provide API have resorted to this appeal when their supervising bodies ordered them to declassify information. In addition to this, a director has recently resigned and the Executive has not appointed a new director, even though the position has been vacant for three months. Use of the reserve clause without showing proof of harm: Various inquiries have revealed that many organizations systematically use the reserve clause; regardless of the type of information that is being requested (some cases in which

­

­

denials were based on this clause are listed below). In addition, refusal of information is never accompanied by the proof of harm that agencies are required to provide to the applicant. Systematic classification of information: A number of agencies have classified entire categories of information; in the framework of the API classification processes itself. These generic and category-based classifications of information jeopardize the fulfillment of the right of API and violate regulating norms. First, the criteria and rationale behind these classifications are not published, which makes it impossible to control the information concerned. Moreover, these agencies fail to provide proof of harm and ignore the principle of divisibility of information (Decree 232/010), according to which if a document/file/archive exists and is partially public and partially confidential the public portion must be disclosed. On 1 August this year, the deadline for submission of all listings of secret and/or confidential information for all entities expired. The vast majority of agencies complied with the statutory mandate, which is a positive step toward fulfilling this right; however, several of the classifications are extensive and do not meet criteria of uniqueness and proof of harm, which should be reviewed by the supervisory body. Preliminary denial: This year, a lawsuit for denied access to information was subject to preliminary dismissal for reasons of foreign relations. The judge dismissed the case even before the hearing, basing the decision on the grounds that the law allegedly enables the State to declare information as confidential on grounds stipulated in the law or unlawful actions. A Court of Appeals upheld the decision. Although not isolated, this case threatens the right of access to information.

 OPEN GOVERNMENT PROJECT (OGP)
 Membership

Uruguay signed the commitment to join the OGP. The Uruguayan State ascribed to the initiative and convened a Working Group on Open Government through a resolution (No. 1186 of 2011) inviting designated representatives of the AGESIC, the Office of Planning and Budget (OPP), Ministry of Foreign Affairs (MRE), API Unit, Ministry of Economy and Finance (MEF) and the National Institute of Statistics (INE) to participate. This group would be responsible for the development of Uruguay's Action Plan to be submitted to the OGP. Since it was understood that the development of such a document has great potential in terms of transparency, empowering the people and building democracy, the Center for Access to Public Information (CAinfo) requested information on the process, from the

AGESIC. Finally, the Working Group formally invited CAinfo to participate in representation of civil society. CAinfo was unable to attend the meeting and, instead, submitted a proposal for Uruguay's Action Plan that placed particular emphasis on: access to public information, open data, and citizen participation. This proposal also included dissemination of the final document that constituted Uruguay's Action Plan. In general, these proposals were only partially included, but there was consensus to conduct a public consultation for the final document. However, although the public consultation was carried out, the public was given very little time (one week) to make suggestions. The version of Uruguay's Action Plan that was ultimately submitted to the OGP was similar to that from before CAinfo joined the working group or the public consultation process was held. However, commitments were made with specific execution dates. Recently, Presidential Executive Decree No. 716/012 established:
­ ­ ­ ­

Approval of the Action Plan Adherence to the Declaration on Open Government Responsibility of applicable authorities to meet commitment goals Entrusting AGESIC to monitor and evaluate the progress of the Action Plan

 Commitments

Action Plan commitments regarding API were very generic and did not represent any substantial improvement. Proposals include some interesting, but specific, initiatives that leave out central areas of the law that guarantee the independence of the supervisory authority, budget, and public education on this right. The Plan addresses access to information within the commitment to “Increase public integrity”. The commitment is as follows:

Access to public information – The Access to Information Unit (API Unit) intends to develop a national outreach and awareness campaign in order to promote the construction, institutionalization and deepening of a culture of transparency in the country. The agencies involved are the API Unit and AGESIC. 2012 goals are: to design and begin to implement a plan for dissemination and awareness. In addition, goals also include improving the API Unit and Transparency portal (transparencia.gub.uy) to facilitate citizen action and participation.

Other elements that were included in the Action Plan under the commitment to “Increase public integrity,” while not specifically referring to access to information, include:
­ ­ ­ ­ ­

Strengthening the culture of transparency: API Unit and AGESIC have to develop API content for e-learning and its implementation National Transparency Award E-participation: The goal is to create a model for citizen participation to generate a Platform for Citizen Participation Open Government Data: Promoting open government data by creating an Open Government Data Platform National Plan for digital literacy: Establishing a plan for digital literacy.

The API Unit is responsible for one of the first three points of the commitment to “Increase public integrity,” based on its agenda and weaknesses (its directors only work part-time). The unit barely participated in this event.
 Civil Society

CAinfo was interested in participating in the OGP Working Group and was allowed to do so. Moreover, there was a public consultation process that could have been better, but was still more widespread and longer than the previous one. Uruguay's Action Plan does not include civil society (only partially in some cases, but never as an equal). At the same time, it does not contain elements that lead to effective public participation. As far as monitoring the Action Plan, commitments include plans and programs that were already in progress or were part of the annual plans of participating state agencies. Therefore, applicable agencies will be the ones monitoring programs and plans. However, there is no mechanism specifically for monitoring these commitments. Civil society expects to be able to participate in the Permanent Review Mechanism created under the OGP for monitoring these Action Plans. In this sense, Cainfo is included in the e-mail basis receiving information related to this issue; however, so far, there has been no instance of interaction with, Paul Maassen, the civil society coordinator for the OGP.
 OPEN DATA

The process began with open data initiatives of some isolated agencies. The Municipality of Montevideo (datos.montevideo.gub.uy) is the flagship agency that initiated this process by opening a varied and extensive series of data. Meanwhile the AGESIC, which is responsible for this subject on a national level, has started an open data repository on a statewide level (http://datos.gub.uy/). This is a small step, but it makes it possible to gather data and facilitate user searches. However, no open data has been approved by this agency, which hinders work and advancements. It would be especially important to have data in an open format to monitor the Economic, Social, Cultural and Environmental (DESCA). That way, compliance could be properly enforced, defended and reported. For example, disaggregated data on budget execution of any public policy by the ESCER area is needed. Such data would enable cross-referencing data sources, destination, spending, etc.

1.18. ACCESS TO INFORMATION AND OPEN GOVERNMENT PARTNERSHIP (OGP) IN VENEZUELA

Transparencia Venezuela
Executive Director: Mercedes De Freitas ProAcess Coalition Coordinator: Daniela Martucci  ACCESS TO PUBLIC INFORMATION Bolivarian Constitution of Venezuela The Bolivarian Constitution of Venezuela contains provisions that obligate public officials to disclose information. Article 28 states that everyone has the right of access to information and personal data about him or herself or his or her property in public or private databases, except as required by law, and to know what use is being made of that information and for what purpose, as well as to request the competent court to order any update, rectification or destruction of any records that are incorrect or illegitimately affect their rights. They may also access documents of any nature containing information of interest to communities or groups of people. Journalistic and other professional sources remain confidential. Article 57 prohibits censuring public officials when attempting to account for matters under their responsibility and article 58 claims that everyone has the right to timely, truthful and impartial information, without censorship, as well as reply and corrections when directly affected by inaccurate or offensive information. As above, the State is responsible, under Article 108, for ensuring public radio and television networks and computer libraries that allow universal access to information. Similarly, Article 143 states that citizens have the right to be timely and accurately informed by the Public Administration on the status of proceedings in which they are directly involved and interested, and to be informed of any final decisions on such matters. In addition, they also have access to administrative files and records, subject to acceptable limits in a democratic society in matters relating to internal and external security, criminal investigation and the intimacy of private life in accordance with the law regulating the classification of confidential or secret content. Censorship of public officials or public servants reporting on matters under their responsibility is not allowed. The application process is also enshrined in the Constitution through Article 51 as a means of access to public information. This article stipulates that every person has the right to petition or submit requests before any authority or public official on matters within their powers, and to obtain timely and adequate response. Whoever violates this law will be punished according to the law and may be removed from office.

The only exceptions established in Venezuelan law are contained in Article 325 of the Constitution, which stipulates that the National Executive may label information related to planning and execution of operations concerning national safety as classified or secret. Administrative Procedures Law There are also administrative laws that enshrine the right of access to information; for example, the Organic Law on Administrative Procedures, published in Official Gazette No. 2,818 on July 1, 1981, states that any interested person may, in person or through a representative, directly request or petition any body, entity or governmental authority for information. These agencies must reply to these petitions or requests or state their denial. With respect to officials and other persons performing public administration services, according to Article 3, they are obligated to report on any information in their power and for which they are responsible if they fail to comply. Interested parties may file claims, before their immediate supervisors, for delays, omissions, misrepresentations or breaches in any proceedings, pending or ongoing, involving applicable officials. Such claim must be filed in writing and expressing the grounds for the claim and shall be resolved within fifteen (15) days. Such complaints do not result in the cessation of the procedure nor hinder the possibility that faults or omissions be rectified. If the supervisor decides in favor of the claim, the offender or offenders shall be subject to the penalty provided in Article 100 of the Law, without prejudice to other responsibilities and penalties that may be appropriate. Under Article 5, in the absence of an express provision, any petition, application, or administrative request directed by individuals to public administration bodies do not require substantiation and shall be resolved within twenty (20) days following its submission or at a later date on which the person concerned has fulfilled all legal requirements. The administration shall inform the applicant in writing, within five (5) days, of any default or breach in the application. Article 45 expressly prohibits officials from refusing to receive any requests and to notify the applicant of any omissions and irregularities in the application. For its part, the parties and their representatives have the right, enshrined in Article 59, of examining the procedure at any stage, as well as reading and copying any document contained in the file and obtaining certified copies thereof, except in the case of documents that are classified as confidential by the supervisor, which will be archived in different files. Documents can only be classified as confidential by way of reasoned decision. Organic Public Administration Law

The Organic Public Administration Law, published in Official Gazette No. 37,305 and dated October 17, 2001, states in Article 9 that public administration officials are required to receive and respond, without exception, representations, requests or applications submitted to them by individuals either via fax, telephone, email, in writing or verbally, as well as timely and adequately respond to such requests, regardless of the right of individuals to file administrative or judicial appeals before the authorities in accordance with the law. In the event that a public official should refrain from receiving representations or requests from individuals or fail to provide an adequate and timely response, said official shall be punished in accordance with the law. National Center for Situational Studies (CESNA), created by a presidential decree, gives the director power to “classify as reserved, classified or limited any information, fact or circumstance.” Similarly, in December 2010, the Guidelines for Classification and Information Processing in Public Administration, which classifies information into four scales, was approved: 1. Public Use 2. Internal Use, 3. Confidential, 4. Strictly Confidential. In short, the legislation in relation to the exercise of the right of access to information is insufficient. The scope of access to information is not defined; that is, rights are not detailed. In addition, there is no clarity as to which public bodies are responsible for guaranteeing the right and there is no body for promoting it. It should also be noted that Venezuelan law on access to information gives the highest authority of public administration the power classify documents as confidential. It establishes the principle of maximum disclosure in the legal framework related to access to information. Opacity is the norm both in theory and in practice as it does not contain benefits for the individual requesting the information. These parameters are not yet known or identified in most Venezuelan public institutions. Requests for information recorded by NGOs have highlighted the failure to meet deadlines and denial of information that constitutionally belongs to Venezuelans and are part of the right of citizens for social oversight and demanding accountability from the authorities. Similarly, the judicial system denied access to information resources in all constitutional appeals, on the grounds of abstention or absence, requested both by Coalición Proacceso as well as other organizations. These responses are untimely in light of how they paralyze the process for requesting information, either by way of constitutional appeal, abstention or absence.

 Main shortcomings and advances in access to information over the last

year in Venezuela. In March 2011, a group of Representatives of the Comptroller Committee introduced a Draft Law on Transparency and Access to Public Information in the National Assembly, which was then completed and approved for study by a subcommittee to which Transparencia Venezuela and Coalición ProAcceso were invited to participate. A total of 7 sessions were held with the lawyers in charge of the study of the resulting document, in January 2012, a draft of the project based on international law, the OAS Model Law and the decision in Claude Reyes vs. Chile was submitted. The Comptroller Committee, driving the project, changed directors and has not appointed a new authority. The Draft Law on Transparency and Access to Public Information was included on the parliamentary agenda for 2012, but has not yet entered legislative discussion. Social organizations are conducting a public consultation on the draft through activities, workshops and discussions with experts on the subject. The Comptroller Committee, driving the project, changed directors and has not appointed a new authority. The Draft Law on Transparency and Access to Public Information was included on the parliamentary agenda for 2012, but has not yet entered legislative discussion. Social organizations are conducting a public consultation on the draft through activities, workshops and discussions with experts on the subject. On a judicial level, in four cases against denied requests for information, applications were found inadmissible on the grounds that the appeal for constitutional protection is not the ideal way to proceed, and that the correct proceeding is by way of Abstention or Absence Appeals. The funny thing is that when the application was filed under this appeal, the Administrative Chamber of the Supreme Court held that in order to submit an Abstention Appeal before the Public Administration, specifically in cases of response to requests for public information through the courts, it is necessary to accompany the libel claim with “evidence supporting the efforts made for obtaining a response from the Administration.” Note that these actions are not specified. Within the country, regional chapters of Proacceso have made progress in the introduction of norms pertaining to access to information before municipal councils, using Art. 275 of the Organic Law of the Public Municipal Power, which states that: “citizens, at a rate no lower than zero point one percent (0.1%) of the voters of the municipality, may submit draft ordinances”. However, Valencia City Council President in the state of Carabobo stated before the media that the petitions contained duplicate or “fake,” i.e. made up, signatures. At the request of the council, these signatures must be

endorsed by the National Electoral Council (CNE), even if this is not stipulated in applicable law and there have been no official communications on this issue.
 OPEN GOVERNMENT PROJECT (OGP)

Venezuela is not part of the Open Government Partnership (OGP). However, civil society organizations, political parties, several municipal governments, some governments, and media, among others, are promoting issues pertaining to this initiative. In addition, civil society organizations are developing an Action Plan, related to the OGP, which was scheduled for September 2012. Last August 10, Coalición ProAcceso published a report on “Impunity, Censorship and Opacity,” in which it revealed the lack of interest of the Venezuelan State for disclosing information that rightfully belongs to the public. By contrast, governments have been responsible for legalizing opacity and feeding the culture of secrecy in institutions. The report notes that, since 2001, laws and norms that promote opacity standards (22 evaluated) have been passed in the National Assembly and Presidential Decrees have enabled actions that empower officials to disclose or deny requested information and monitor what information is revealed. Similarly, journalists and the media have been subject to assaults and abuse. According to the report, IPYS Venezuela recorded 22 violations of freedom of expression and media and 6 arbitrary measures against the media in 2012. Moreover, the report notes that the actions of citizens, organizations and businesses result in self-censorship for fear of retaliation or denial of access to a social benefit, permit, CADIVI dollars, as well as attacks, expropriations, fines or suspensions. In addition, through its rulings in all cases involving requests for public information, the Venezuelan justice system constitutes a further example of this problem. Of the 11 cases in which coalition organizations resorted to the courts, 100% resulted in negative judgments under grounds that are contrary to international standards, such as the need for the applicant to have a “legitimate interest” in the information or the proportionality of the information requested.
 Commitments

Transparencia Venezuela believes that the pending priorities that must be the focus of
Venezuela's commitments include:
 

Adoption of an API Law and its implementation Creating a body in charge of API

  

Active transparency portals Generation of information, publication of information in databases on resources, budgets, social programs, and management indicators in all sectors Transparent Procurement Portal with the publication of the contracts signed by the Republic, including: purchasing, works and services, oil, gas and mining, etc.

 Civil Society

As we have mentioned above, civil society organizations are promoting issues pertaining to this initiative among other civil society organizations, political parties, several municipal governments, some governments and media. On August 10 a convention was held on “Access to Information and Open Government Partnership,” with participation from members of Coalición ProAcceso and representatives from international organizations that were already in the country for the VII Meeting of Alianza Regional por la Libre Expresión e Información, aimed at sharing advancements in terms of access to information in participating countries and gaining more knowledge on the OGP, which has sparked so much interest in Venezuelan civil society. Examples of this interest include the work NGOs toward the Open Government Program proposal, which will be evaluated during the next presidential term from 2013 to 2019. This proposal also contemplates the possibility of increasing and strengthening the level of transparency of public management in order to achieve a better understanding of the performance of public organizations, the way resources are allocated, and who benefits from them. It also includes best practices on access to public information, accountability and public integrity on the basis of concrete proposals. Between the months of June and July, Transparencia Venezuela has conducted a consultative survey among organizations, using surveymonkey, to gather information among academics, civil society organizations and local and regional governments in relation to priorities on issues of Open Government. Results were scheduled to be processed in the month of September.  OPEN DATA Open Data is not a priority for the Venezuelan State. The projects initiated in 2003 by the Ministry of Science and Technology have all been paralyzed. The webpages of national governing bodies contain less information and more propaganda every day.

There are currently no published data in reusable formats. Priorities should be established on the basis of public bodies and by topic. Venezuela is far from defining these priorities. As far as information in reusable formats, Transparencia Venezuela believes the following should be published:

Basic data: Structure and persons responsible for charges, services, paperwork requirements, budget and implementation details, salaries, programs and projects, indicators, election and work schedule, new hires, copies of contracts, bidding and procurement.

In this regard, drawing on good practices in other countries and international standards established by law, the minimum information to be disclosed and updated by public institutions includes:
 

  

Organizational structure, activities and functions performed. The legal basis for the norms, regulations and procedures applicable to the agency or entity, as well as draft regulations that are in the process of being issued, their goals and objectives, in accordance with operational programs, and the degree of fulfillment of these goals and objectives. In simple and accessible form, services offered and how to access them, hours of operation, procedures and formalities, including the procedures and processes for making complaints, inquiries, or appeals about the service or the exercise of the functions and powers of the person concerned, and other information necessary for all individuals to exercise their rights and fulfill their obligations. List of names, titles, salary, wages, remunerations or fees with a breakdown of composition, of legal representatives or owners, and all officers and employees of the agency or entity, including those hired in accordance with the Civil Code. Full text of all collective agreements in force in the institution and their annexes and amendments. Details and number of permits, licenses, concessions, authorizations, and acts or decisions during the period in question. Complete and detailed information on the contracts concluded by the agency or entity for the purchase of goods and services, and construction projects, with information about the company or individual contractor, the amount, time and place of execution, a brief review of the object of the contract and specifications thereof, and any progress in implementation. In the case of public works, contracts should include not only the name of the party, but also the names of their legal representatives. A list of companies and individuals who have breached contracts with the organ and body.

   

 

 

  

 

Ongoing and future plans and programs. Mechanisms and controlling bodies that oversee the agency or entity. The number, amount, and detail of external or internal credit agreements, indicating the source of funds with which these credits will be paid. In the case of loans or financing agreements, as per the Law on Public Sector Financial Management and the Organic Law of the Comptroller General of the Republic and Fiscal Control System, at least the following should be listed: operations and contracts, including credits, amounts, terms, financing costs or interest rates, as well as contractors and brokers. Full information on the annual budget administered by the agency or entity, specifying income, expenditure, financing and operating results in accordance with existing budget classifiers, as well as the projected budget for the next fiscal year. The annual budget settlement, signed by the recipients of these public resources and the purpose and use of these resources. Reports on legal persons of private law on the use of public funds, submitted to the supervisory authority, as well as the conclusions and recommendations of internal and government audits for the budget year, including audits by the Comptroller General of the Republic. Information on all agency or entity expenditures on advertising, promoting, explaining or defending any policy or decision of the agency or entity. Full information on the location, nature, and risks of toxic substances that the organ or body may use, the volume of such materials released to the environment as a result of manufacturing and production processes, and waste disposal methods and mechanisms of the organ or body. This paragraph shall also apply to any work that is undertaken by a private legal person for the agency or entity. Accountability mechanisms for everyone, such as goals and management reports and performance indicators. Mechanisms for interaction and participation of all individuals in the management of the agency or entity. The name, office address, zip code, telephone number, and email address of the designated officer for processing and responding to requests for access to information. In simple and accessible format, any forms or applications required for the procedures for requesting information or the procedures for filing complaints for violations of the right of access to public information, and other reports, studies, or guides. Expenses, working papers and supporting documents on national and international mobilization of authorities, dignitaries and public officials. The Judiciary and the Supreme Court must additionally publish a full text of their decisions in all their jurisdictions.

  

State controlled agencies must additionally publish the full text of the resolutions executed and their reports, in all their jurisdictions. The Central Bank, in addition, must publish relevant information and competence indicators in an accessible and understandable format for the general public. Sectional agencies must, in addition, promptly inform every one of the resolutions they adopt, through the publication of the minutes of the respective meetings of these collegial bodies and their local development plans.

1.19. SUMMARY TABLE This table has been developed with the information provided by the organizations that make up Alianza Regional por la Libre Expresión e Información , along with the data available on the website of the Open Government Partnership (OGP).
COUNTRY MEMBER ORGANIZATIONS OF ALIANZA STATUS IN THE OPEN GOVERNMENT PARTNERSHIP (OGP) LINKS

REGIONAL POR LA LIBRE EXPRESIÓN E INFORMACIÓN
Argentina Asociación por los Derechos Civiles (ADC) Asociación Nacional de la Prensa (ANP) Fundación Pro Acceso

Non-member

Bolivia

Non-member

Chile

Member

http://www.opengovpart nership.org/countries/chi

Commitment Submitted Colombia Fundación para la Libertad de Prensa (FLIP) Transparencia por Colombia Member

le

http://www.opengovpart nership.org/countries/col

Commitment Submitted Member

ombia

Costa Rica

Instituto de Prensa y Libertad de Expresión (IPLEX)

Commitment not yet Submitted Non-member Member

Ecuador El Salvador

Fundamedios Asociación de Periodistas de El

Salvador (APES) Fundación Salvadoreña para el Desarrollo Económico y Social (FUSADES) Guatemala Acción Ciudadana (AC)

Commitment not yet Submitted

Member

http://www.opengovpart nership.org/sites/www.o

Pledge Submitted

pengovpartnership.org/fi les/country_action_plan s/Guatemala%20OPG% 20Action%20Plan%20% 2009.04.12.pdf

Honduras

Comité por la Libre Expresión (C-LIBRE)
Fundación Democracia sin Fronteras (FDsF)

Member

http://www.opengovpart nership.org/sites/www.o

Commitment Submitted

pengovpartnership.org/fi les/country_action_plan s/Plan%20Gobierno%20 Abierto%202012%20últi ma%20versión%20%28 2%29.pdf

Mexico

Fundar- Centro de Análisis e Investigación

Member

http://www.opengovpart nership.org/countries/m

Pledge Submitted Nicaragua Fundación Violeta Barrios de Chamorro (FVBCH) Non-member

exico

Panama

Consejo Nacional de Periodismo (CNP)

Member

Commitment not yet Submitted Paraguay Instituto de Derecho y Economía Ambiental (IDEA) Member

Commitment not yet Submitted Peru Instituto Prensa y Sociedad (IPYS) Member http://www.opengovpart nership.org/countries/pe Commitment Submitted Dominican Republic Participación Ciudadana (PC) Member ru

http://www.opengovpart nership.org/countries/do

Commitment Submitted Uruguay Centro de Archivos y Acceso a la Información (CAInfo) Member

minican-republic

http://www.opengovpart nership.org/countries/ur

Commitment Submitted Venezuela Transparencia Venezuela Non-member

uguay

PART II

2.1 ALIANZA REGIONAL POR LA LIBRE EXPRESIÓN E INFORMACIÓN AND INTERNATIONAL TRANSPARENCY IN THE AMERICAS OUR OPEN GOVERNMENT PARTNERSHIP AND ITS IMPORTANCE Zoe Reiter71 Transparency International

Regional Programs Coordinator Department of the Americas
In the past decade or so, the role, nature and approach of civil society to fostering good governance has changed significantly. On the one hand, there has been a burgeoning of civil society networks, often regionally-based or focused around a specific dimension of good governance (e.g. legislative transparency, budget transparency, whistleblowing protection, etc.). On the other side, government-led governance initiatives have increasingly recognized the need and value for including the participation of civil society in good governance legal and policy development as well as the monitoring of its implementation. The Open Government Partnership, launched in September of 2011, illustrates an example of this second trend. The OGP initiative aims to increase access to information, support civil participation, including the full participation of women, in decision making and oversight, promote integrity in the public sector through strong accountability, transparency and anti-corruption mechanisms, and increase access and use of open data technologies. In the words of the declaration itself, the OGP initiative is intended to lead to a “deepening public participation in developing, monitoring and evaluating government activities…[where] not -for-profit and civil society organizations [are able] to operate in ways consistent with our commitment to freedom of expression, association, and opinion.”72 The OGP does not just recognize the importance of civil society in ensuring strong and concrete advances in open government, the initiative itself is born out of a dialogue between key government actors (primarily located in and key civil society actors (primarily headquartered in London and Washington, D.C.). This resulted in an oversight mechanism involving a government steering committee, currently consisting of 9 country representatives 73 and a civil society steering committee, consisting of 9 representatives international and regional civil society

71

All the considerations expressed in this article are personal to the author and do not represent the views of Transparency International. 72 http://www.opengovpartnership.org/open-government-declaration 73 Indonesia, Philippines, Norway, UK, South Africa, Brazil, USA, Tanzania and Mexico

organizations.74 The chair of the civil society steering committee also sits on the government steering committee, to help ensure that civil society perspectives are taken on board by governments. At the national level, countries participate on a volunteer basis and, in theory, all civil society is encouraged to participate in the development of the government’s National Action Plan. This is the country’s plan for implementing concrete an d new commitments that advance open government in line with the principles and aspirations embodied in the declaration. National-level civil society is also expected to monitor the implementation of the plan to ensure that its benchmarks are being met. Therein lies the rub. Who is really accountable if the promises and aspirations embodied in the OGP declaration are not adhered to by a participating country at the national level, either in the development of the national Action Plan or its implementation? In theory there is a grievance mechanism that enables civil society (or other governments) to raise grievances in the case that a country is seen to not follow through on the principles and commitments embodied in both the OGP declaration and/or the national Action Plan. Again in theory, a country that willingly contravenes these principles and commitments can be removed from the Partnership process, though this has yet to happen. The sanction or grievance mechanism of the process, however, is where politics has the opportunity to get in and where the ideals of a civil society that can play an inside-outside role, (i.e. providing technical support while providing an oversight function) can find serious limitations in practice. The civil society organizations on the steering committee are inherently obligated by the initiative to play a more diplomatic role of facilitation and encouragement. This can have limitations as a control mechanism when countries choose to use the OGP for window-dressing purposes. As facilitator and co-designer/co-implementer of the process, the civil society steering committee has a more restricted space for acting as an effective watchdog. This is in no way meant as a critique of the invaluable role the civil society steering committee has and continues to play in promoting a very promising process for advancing open government in the world. It is merely to say that such an insider/outsider role as is played by the civil society steering committee, which is in and of itself essential to the OGP initiative, needs to be complemented by a wellorganized civil society engagement from the outside. In other words, there is still a critical need for an independent civil society to put the necessary external support and pressures on the OGP process, particularly at the national level but also organized around regional and international frameworks. Such a more traditional watchdog role helps to ensure that countries will be called to account by its citizens and by regional and international open government activists when necessary.

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Africa Center for Open Governance, INESC, MKSS, IMCO, Twaweza, National Security Archive, Transparency and Accountability Initiative, Revenue Watch Institute, International Budget Partnership.

These groups, and their independence to the process, are essential in order to ensure the strongest possible outcomes from the OGP initiative . This external watchdog role is further maximized by integrating the efforts of the ever-increasing number of networks promoting open government. Networks targeting the key components of open government must work together to share experience and expertise and build collective advocacy and messaging platforms to ensure that the horse trading and public commitments-as-public relations phenomena endemic to the political process does not succeed in weakening the potential impact that the OGP can have in our region and the world. Transparency International – Americas and Alianza Regional por la Libre Expresión e Información have recognized this need for an effective, coordinated, and entirely independent engagement on the OGP. This is why we signed an agreement at the Central American Transparency Forum in November 2011 to work jointly on this and key open government issues in Latin America. Together we are working to support and facilitate our collectively more than 35 national members in the region to support, and when necessary push, for stronger and better national Action Plans. Finally, we have also come up with a clear and simple formula that summarizes what we envision as genuine open government: Access to information as a right + transparency, accountability & participation as a policy + open data as a tool = open government This is important, because all too often governments confuse open government with just one of these 3 components, typically equating open government only with open data for example. This formula was generated in a forum co-organized by TI – Americas, Alianza, and the International Anti-Corruption Conference to consult with our key national partners and other civil society organizations from all over the world that were invited to the OGP annual meeting held in April of 2012 in Brasilia. It guides the focus of the work we carry out collectively and are planning for the future to ensure that the Open Government Partnership lives up to the declared aspirations and commitments embodied in the OGP Declaration. Our collective effort has led to stronger commitments to our core issues in the national Action Plans of numerous countries in the region, and we hope will continue to strengthen the outcomes, and ultimately impact of the OGP. We invite other networks in the region to join us in this critical campaign for genuine, participatory open government .

2.2 OPEN GOVERNMENT ALLIANCE: LESSONS AND EXPERIENCES OF THE PROMOTERS OF THE RIGHT OF ACCESS TO INFORMATION IN AFRICA. Gilbert Sendugwa Pan-African Conference on Access to Information Head of Secretariat75 The launch of the Open Government Partnership (http://www.opengovpartnership.org) in September 2011 coincided with the Pan-African Conference on Access to Information (PACAI). These two events were significant in the context of the advancement of the right to information in Africa for various reasons. Firstly, both took place when the continent had the least number of RTI laws76 which were at the same time experiencing varying degrees of implementation challenges. Secondly, existing RTI laws were in a number of respects at variance with international standards. The PACAI conference and its resultant APAI Declaration (http://www.africafoicentre.org/index.php?option=com_docman&Itemid=560) aimed at enabling countries considering new legislations to ensure that such laws are in line with established principles. The second objective was to mobilize commitment for adoption and implementation of RTI laws on the continent. The Open Government Partnership is a voluntary, multi-stakeholder international initiative that aims to secure concrete commitments from governments to their citizenry to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. OGP member governments are required to commit to open government in ensuring timely publication of essential budget documents, adopting an access to information law that would guarantee the public’s right to information and access to government data, having rules that require public disclosure of income and assets of elected and senior public officials as well as openness to citizen participation and engagement in policymaking and governance. Like the adoption of right to information laws which took ten years to adopt ten laws, the pace for joining OGP in Africa has been slow with only five countries joining out of the continent’s fifty four. This is due to a combination of factors. Many countries do not meet eligibility and seem not be making effort, awareness of the tool and its processes is still limited among civil society and government leaders. Others are still not clear on how this process relates to continental initiatives like the African Peer Review Mechanism, Six countries meet OGP eligibility criteria and out of these five have become members with South Africa, Kenya and Tanzania having already submitted national

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The English to Spanish translation of this article has been carried out under the responsibility of the translation team of the Executive Secretariat of Alianza Regional. 76 South Africa, Angola, Zimbabwe, Uganda, Ethiopia, Liberia, Niger, Nigeria, Guinea Conakry and Tunisia.

Action Plans Ghana and Liberia are in the process of developing respective country Action Plans. OGP and Right to Information The OGP presents an important opportunity to promote the right to information. As already stated, one of its indicators is about promoting legislating for access to information as well as promoting accessibility to government data. As it celebrates its first anniversary, the following has been registered in OGP countries: Although the Government of Kenya does not commit to pass the access to information law, it states in its country Action Plan that it has revised and improved the draft access to information bill. It is worth noting that the launch of OGP ignited the need to revive consideration of the draft Freedom of Information Bill that had stalled for many years. A new draft bill has been drafted following the holding of consultations among different stakeholders including civil society organizations in the country. AFIC was privileged to have worked in collaboration with the Kenyan Section of International Commission of Jurists (ICJ) to organize consultative meetings on February 17, 2012 in Nairobi. The Government of Kenya also set up an Open Data Portal (https://opendata.go.ke/) on which citizens will be able to access government data on service delivery and budgets on government programs. Tanzania like Kenya does not have an access to information law. It has committed in its OGP country Action Plan that it will study global best practice of freedom of information laws in order to generate inputs for preparation of a potential freedom of information Bill. It has also committed to implement a series of actions through which the Government will proactively disclose information. South Africa unlike Kenya and Tanzania has an access to information law and has made important commitments to take access to information in the country forward. Civil society concerns with provisions in the Draft Protection of State Information Bill that sought to undermine the right to information are progressively being addressed. African Civil Society and OGP The OGO processes places importance of citizen participation and in the whole process. It also requires civil society organizations to be fully involved in the whole OGP process including generation of country Action Plans as well as reporting. During the generation of the first country Action Plans the Governments of South Africa, Kenya and Tanzania attempted to involve civil society organizations but this was not sufficient. This was due to various reasons some of which are:
1. Limited information about the OGP. Many civil society organizations and

Government departments other than those that were directly involved with the

drafting of Action Plans in respective countries did not get information about OGP and its processes. 2. The generation and submission of country Action Plans was by and large affairs of national governments. It is very possible that a country Action Plan only represents the views of senior government leaders and nothing from the population and civil society organizations. 3. Limited civil society engagement affected the outcome of the process. In the case of Kenya and Tanzania for example, despite the overwhelming need and the recognition that participation is impossible without information, negotiations for strong commitments including access to information laws was inadequate. AFIC members in the three countries confirmed that many public departments other than those directly involved in the generation of country Action Plans do not know the OGP tool. What has been learnt?
4. Civil society wants to be proactive and engaged. In Uganda, civil society

organizations have held meetings with their government to campaign for entry. With this demand driven approach there is great potential that their participation in subsequent stages if the country joins will be high. 5. In Ghana, a multi-stakeholder OGP country steering committee has been established ahead of the formulation of the country Action Plan. It is led by the Minister of Public Sector Reforms’ Secretariat with involvement of other senior government, civil society and religious leaders. The steering committee is among others charged with coordination and overseeing the development and implementation of the country Action Plan. This process will inevitably add impetus to on-going campaigns for an access to information law in the Ghana. Next Steps
1. AFIC is initiating a process that will facilitate African civil society and

government agencies to share and learn from experiences from the region and beyond. When finalized, AFIC’s network of 26 members will work with other partners and stakeholders to provide critical platform for learning and sharing. 2. AFIC is also discussing with stakeholders and a national government on the possibility of co-hosting a regional meeting next year. The meeting will be a major point for learning and reflection that is vital for the continent. 3. Discussions are being held with Alianza and other regional networks to work together on using different platforms to advance the right to information around the world.