Acces to Information in Central America and Mexico by maria vasquez

UNITED NATIONS DEVELOPMENT PROGRAMME

UNDP REGIONAL CENTRE PANAMA

Freddy Justiniano DIRECTOR a.i. UNDP REGIONAL SERVICE CENTRE FOR LATIN AMERICA AND THE CARIBBEAN

Gerardo Berthin GOVERNANCE AND DECENTRALIZATION POLICY ADVISOR

Maria Angelica Vásquez CONSULTANT- DECENTRALIZATION AND LOCAL GOVERNANCE

UNDP REGIONAL BUREAU FOR LATIN AMERICA AND THE CARIBBEAN – NEW YORK Álvaro Pinto COORDINATOR DEMOCRATIC GOVERNANCE CLUSTER

UNDP MEXICO Diego Antoni DEMOCRATIC GOVERNANCE PROGRAMME DIRECTOR Paola Gómez MANAGER DEMOCRATIC GOVERNANCE PROGRAMS

PROJECT COORDINATORS AND EDITORS Guillermo M. Cejudo CIDE RESEARCHER Alejandra Ríos-Cázares CIDE RESEARCHER

RESEARCHES Central America Rafael Reyes García Researcher cases of Honduras and Panamá María Adilia Serrano Researcher case of Nicaragua José Antonio Pérez Researcher case of Guatemala

ADVISORY COMMITTEE Gerardo Berthin (UNDP) Diego Antoni (UNDP) Alejandra Ríos-Cázares (CIDE) Guillermo M. Cejudo (CIDE)

The section on Mexico is based on the 2010 Metrics of Transparency analysis carried out by a research team from the Center for Economic Research and Teaching (CIDE), coordinated by Dr. Sergio López Ayllón and formed by the researchers David Arellano, Guillermo M. Cejudo, Alejandra Ríos Cázares; and Ana Elena Fierro, Adriana García and Juanita Gómez as research associates. All the information related to Metrics of Transparency is available at www.metricadetransparencia.cide.edu

Original Version in Spanish Translated by Michelle McCudden

SEPTEMBER 2011

The views expressed in this publication are those of the author and do not necessarily represent those of the United Nations Development Programme (UNDP).

Content Presentation ................................................................................................................................................ 11 Acronyms .................................................................................................................................................... 13 Acknowledgements..................................................................................................................................... 15 Introduction ................................................................................................................................................ 19 Chapter 1 Legislative History ....................................................................................................................................... 25 Chapter 2 Dimension 1: Normative Framework .......................................................................................................... 31 Chapter 3 Dimension 2: Government Web Portals ..................................................................................................... 41 Chapter 4 Dimension 3: Simulated User Exercise ....................................................................................................... 49 Chapter 5 Dimension 4: Institutional Capacities of the Responsible/Guarantor Entity ............................................. 57 Conclusions ................................................................................................................................................. 67 References .................................................................................................................................................. 73 Annexes ....................................................................................................................................................... 77 Annex A ...................................................................................................................................................... 77 Annex B ....................................................................................................................................................... 78

Presentation The Transparency and Accountability in Local Governments (TRAALOG) regional initiative started in April 2010. The TRAALOG has been supported by the Democratic Governance Thematic Trust Fund (DGTTF), the Global Thematic Programme on Anti-Corruption for Development Effectiveness (PACDE), and the United Nations Development Progamme (UNDP) Spanish Trust Fund. The TRAALOG is an initiative of the UNDP Democratic Governance Practice Area of the Regional Bureau for Latin America and the Caribbean (RBLAC), and is implemented from the UNDP Regional Centre for Latin America and the Caribbean in Panama. The TRAALOG targets small initiatives at the local level that can be scaled up through policy support and capacity development and partnerships. One of the key activities of TRAALOG is to promote the development and systematization of knowledge products and tools, focusing on specific initiatives aimed at increasing transparency and accountability, as well as to mainstream anti-corruption issues into other areas, such as access to information, ethics, climate change, health, Millennium Development Objectives and social audit. The idea is for these knowledge products to serve as means, to generate interest and discussion among UNDP Country Offices in and outside the region, regional service centers and other units of UNDP and the wider United Nations System, as well as development and democratic governance practitioners. Similarly, it is hoped that these knowledge products could serve as reference in pursuing initiatives and in seeking opportunities for replication. These can also be used to develop and support projects and programs, as well as regional activities. These knowledge products are the result of partnerships with a number of UNDP Country Offices, donors, consultants and associate experts, academic institutions and civil society organizations. All helped to identify experiences that provide valuable practical information relative to improving democratic governance and increasing transparency and accountability.       

These knowledge products are not meant to be prescriptive. Rather, their aim is to: Provide examples of transparency and accountability activities; Generate discussion and policy dialogue; Illustrate practices; Present tools, methodologies, approaches and frameworks; Highlight case studies; Direct readers to additional resources.

Gerardo Berthin Policy Adviser Democratic Governance Area Latin America and Caribbean Regional Service Centre, UNDP

Acronyms CIDE

Center for Economic Research and Teaching (Spanish Acronym), Mexico

LFTAIP

Federal Law of Transparency and Access to Public Information (Spanish Acronym), Mexico

NAAR

North Atlantic Autonomous Region, Nicaragua

SAAR

South Atlantic Autonomous Region, Nicaragua

IFMS

Integrated Financial Management System,Guatemala

SAGSI

Information Requests Management System (Spanish Acronym)

Acknowledgements We thank Manoel Pérez, Luis Armando Amaya and Juanita Gómez for their collaboration in the systematization of information and the preparation of figures. We also thank the team in charge of the 2010 Metrics of Transparency for the lessons learned in the diagnosis of the transparency system in Mexico. Finally, we thank the UNDP Country Offices (Claudia de Saravia and Abelardo Quezada, PNUD Guatemala; Miguel Calix, PNUD Honduras, Maribel Gutierrez, PNUD Nicaragua and Katyna Argueta PNUD Panamá) for their valuable support during the research and for their inputs and recommendations, as well as the various public institutions that enabled the work. Similarly, we thanks the Advisory Committee (Gerardo Berthin, UNDP Regional Centre LAC; Diego Antoni, UNDP Mexico; Alejandra Ríos-Cázares, CIDE and Guillermo M. Cejudo, CIDE) and in particular the UNDP Latin American and Caribbean Regional Centre for its consistent support and guidance. Last but not least, Paola Gomez of UNDP-Mexico and Maria Angelica Vasquez of the UNDP Regional Centre played a crucial role in the management of the project.

Introduction Access to public information has been recognized as one of the pillars of government accountability and, therefore, has given a special impetus to legislative reform proposals in this area.1 However, few have been the empirical studies of the various factors that contribute, in addition to good legislation, to the success or failure of efforts to eradicate opacity in government.2 Based on the study of access to public information systems in four Central American countries and four Mexican states, this report shows that regulations on access to public information are insufficient if essential factors for the operation of this right. Such factors include archiving and documenting, the creation and strengthening of institutions capable of enforcing the law, and the careful articulation of processes and mechanisms to request and obtain information. As Christopher Hood pointed out, this is the only way to evolve from a de jure to a de facto transparency.3 This report contains an analysis of how systems of access to public information operate in four Central American countries (Guatemala, Honduras, Nicaragua and Panama) and four Mexican states (Chiapas, the Federal District,4 Puebla and Yucatan). Based on recent experience in the analysis of systems of access to public information on sub-national governments in Mexico, conducted by the Center for Economic Research and Teaching (CIDE is its acronym in Spanish), this report examines key operational aspects regarding the right of access to government information. Such aspects include the quality of the normative framework, of institutions and processes, as well as an analysis of the information that is actually provided by governments to citizens, both in response to specific requests and through the Internet portals of public entities.5 In the eight cases, special attention was paid to the study of local governments: Official web portals, as well as processes to address information requests were analyzed in three municipal governments. 1

Ackerman, John M., and Irma E. Sandoval‐Ballesteros. 2006. ‘The Global Explosion of Freedom of Information Laws.’ Administrative Law Review. 58(1): 85‐130; Bertoni, Eduardo Andrés. 2011. Libertad de información ¿tres palabras inofensivas? Leyes de acceso a la información y rol de la prensa. Washington: The World Bank. Michener, Greg, and Bersch, Katherine. 2011. The Quality of Transparency. Text presented at the Midwest Political Science Association, April; Banisar, David. Freedom of Information Around the World 2006. A Global Survey of Access to Government Information Laws. Privacy International 2006 [visit. Available at www.privacyinternational.org. 2 Some exceptions can be found in: Alasdair Roberts. 2006. Dashed Expectations. Governmental Adaptation to Transparency Rules, in Christopher Hood and David Heald (eds.)Transparency. The Key to Better Governance. Oxford: Oxford University Press, pp. 107-126; Pasquier, Martial, Nicolas Pauchard and Sarah Holsen. 2011. Resistance to transparency in Switzerland: a case study analysis of behaviors and justifications. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May; Ben Worthy. 2010. More Open But not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government. Governance 23 (4), 561-582; Guillermo M. Cejudo, Sergio López Ayllón and Alejandra Ríos Cázares. 2011. Assessing transparency across levels of government in Mexico. Rules, institutions, and practices. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May. 3 Hood, Christopher. 2006. Beyond Exchanging First Principles? Some Closing Comments, in Christopher Hood and David Heald (eds.), Transparency: The Key to Better Governance. Oxford: Oxford University Press, pp. 211-225. 4 Also known as Mexico City. 5 The features, details and results of this research are available on the Website www.metricadetransparencia.cide.edu. A summary of the study and considerations on the main findings can be found in Guillermo M. Cejudo, Sergio López Ayllón and Alejandra Ríos Cázares. 2011. “Diagnóstico de la transparencia en México. Lecciones de la Métrica de transparencia 2010.” Transparencia y privacidad. Revista mexicana de acceso a la información y protección de datos, 1, pp. 58-81.

In the following pages, after a brief presentation of the methodology, a detailed analysis of four dimensions of access to information systems is provided: 1) the quality of the normative framework on access to public information, 2) the information proactively presented in governmentÂ´s web portals, 3) an assessment of the process to request information and the type of responses, and 4) the analysis of institutions which guarantee the right of access to information. Thereafter, and based on collected information, this analysis helps identify areas of opportunity and risk that need to be addressed to ensure and enhance access to public information. Thus, in the last section some recommendations are provided to answer to two key questions: What are the most serious obstacles to the effective access of citizens to public information? And, what are the most important challenges in the public information access system? Objective and Methodology This report is developed from a methodological approach that allows the comparative study of four Central American countries and four Mexican states (three states and the Federal District). The effortsâ&#x20AC;&#x2122; specific objective is to identify common challenges, recurring problems and best practices in access to government information in four Central American countries and four Mexican states. The selection of cases was made thinking about maximizing differences in the development of legislation on access to information and in the contextual conditions (political dynamics, economic and social development), both among the four Central American countries and in the sub-national governments in Mexico. As such, for each case, the following are analyzed: legislation on access to information based on international standards and best practices;6 the institutional strength of the entities responsible for enforcing the right of access to information; the process of requesting information based on a simulated user exercise to assess response times and quality of information, and to identify good and bad practices in the daily exercise of the right of access to information; and, government web portals, to analyze the quality of the information provided and their user-friendliness. For the analysis of the quality of legislation, a brief review of the legislative history (the evolution of transparency laws, including laws of access to information and any additional relevant regulations) was carried out, as well as a qualitative assessment of laws on access to information in each case. Similarly, some comparable elements in legislative frameworks were quantified, which are used for contrasting legal quality data with information about the operation of the access to public information system. The second analytical component was the institutional dimension: an analysis of the institutional framework responsible for enforcing the right of access to public information, including a brief historical narrative of the evolution of this institutional framework and the analysis of the process by which a citizen can appeal an access to information denial. The last two components refer to the information that citizens actually get, through access to information requests (the request process and the characteristics of the offices that receive the requests 6

For example, the recently published Model Inter-American Law on Access to Public Information of the Organization of American States. For more information, see: http://www.oas.org/juridico/english/ley_modelo_acceso.pdf

were analyzed, with emphasis on practices that facilitate or hinder access to information by citizens). Also in this component, response quality and times were analyzed. With respect to government web portals of public entities, the information available and its user-friendly accessibility were analyzed, as well as the quality of information and how update it was. For both components, the actors we analyze include the following agencies (or their equivalents):

Table 1: Analyzed Public Entities 1. Office of the President of the Republic 2. Ministry of Interior 3. Ministry of Finance 4. Ministry of Health 5. Ministry of Education 6. Ministry of Social Development 7. Ministry of Infrastructure 8. Legislative Branch (and Supreme Audit Institution) 9. Supreme Court (or its equivalent) 10. Three municipal governments: a. One Large Urban Municipal Government b. One Medium-Sized Semi-Urban Municipal Government c. One Small Rural Municipal Government

In the following sections, the aggregate results of each of the components and a comparison of the eight cases is presented.

Chapter 1 Legislative History The right of access to public information has a long history. While the first legislation on the subject dates from 1756 in Sweden, the idea to create a legislation to support this right has become particularly relevant in the last twenty years. Just between the years 2000 and 2005, 34 laws or decrees on government transparency and access to public information were passed in different parts of the world.7 This impetus to recognize the right of citizens to access to public information has been particularly intense in the Latin America and Caribbean region, where to date, fourteen countries already have a national legislation that regulates government transparency and access to public information.8 One of the notable cases in this legislative development is Mexico. After 70 years of one-party political domination at the end of the twenty-first century the country moved towards passing a series of legislative reforms focusing on strengthening of government accountability. The Federal Law of Transparency and Access to Public Information approved in 2002 (Ley Federal de Transparencia y Acceso a la Información Pública, LFTAIP), was part of that legislative effort and constituted the foundation for new institutions in the area of government transparency and has forced adjustments in federal agencies. The LFTAIP has also had direct impact on state and municipal governments throughout Mexico. Although there were transparency initiatives in some sub-national governments before the approval of the LFTAIP, the federal legislation was the first law to be enforced across the country. In fact, after the approval of the LFTAIP, the 32 Mexican sub-national governments (31 States and the Federal District) gradually adopted some type of regulation on the matter; so by 2005, 25 States had recognized the right of access to public information in their legal framework. The problem, however, was that not all subnational statutory provisions included the same principles or criteria, thereby creating an important disparity in the exercise of the right of access to public information. In response to the problems that arose from the heterogeneity of principles and criteria, a plural movement was created, which included state governors, academics and civil society organizations, whose main goal was to push a constitutional reform to establish the minimum principles that all Mexican states should incorporate into their legislation as well recognize processes regarding government transparency. The reform was passed in 2007, and among its initial mandate was to grant exactly one year for all States to adjust the corresponding legislation. To date, the 31 states and the Federal District have a transparency law and, with some exceptions, constitutional principles have been included in local regulations.9

Michener, Greg. 2011. “FOI Laws around the World”, Journal of Democracy, Vol.22, No. 2, April, p. 148. The most important pending cases, because of their dimensions, are Argentina and Brazil, the large countries of the Southern Cone, where national congresses are discussing bill paths. Michener, Greg: The Surrender of Secrecy: Explaining the Emergence of Strong Access to Information Laws in Latin America. URL: http://gregmichener.com/Dissertation.html See: July 13, 2011. 9 One of the exceptions to the amendment required by the constitutional reform is the federal law itself. 8

Despite the standardization effort prompted through the constitutional reform, there remain important differences in the country. For example, the 2010 Metrics of Transparency10 found that the quality of the Federal District’s legislation was evidently higher than the regulation in the northern state of Baja California. For this report, four Mexican States were selected (Chiapas, The Federal District, Puebla and Yucatan), which illustrate different legislative development cases in Mexico. Of the four states analyzed, the Federal District was the first one to adopt a transparency law (2003), which was subject to several reforms leading to the approval of a second legislation (which revoked the first) in March of 2008. This new law (with its corresponding reforms) is one of the most advanced legislations in the country. 11 Puebla and Yucatan passed legislations on the matter in 2004, while Chiapas did it only in 2006. Although it is not possible to make a detailed narrative of each of the State´s legislative history, it is important to note that that these laws were passed in various political environments. This is relevant because access to public information is an issue which, in principle, requires political bargaining. While in the Federal District the original law and subsequent reforms were promoted and approved by the Democratic Revolutionary Party (Partido de la Revolución Democrática), the “leftist” party in Mexico, which controlled the executive and the legislative branches of government, in the case of Puebla, the legislation was passed under the leadership of the Institutional Revolutionary Party (Partido Revolucionario Institucional), which had retained power for more than seven decades in the State, including a legislative majority). In the case of Chiapas, the legislation emerged from a broad political plurality, while in Yucatan; the legislation was welcomed in a context of dominance by the National Action Party (Partido Acción Nacional), the “rightist” party in Mexico. What was just described shows that the approval and promotion (and sometimes obstruction) of transparency is not the prerogative of a specific party or a particular ideology, nor a characteristic of a particular political situation. In the Central American countries analyzed in this report, the situation is similar, except that, according to the background papers, which support this report, the approval of the legislation was framed by a process of institutional transformation that was primarily focused on the fight against corruption. In Honduras, Guatemala and Nicaragua, the legislation was passed during the first years of the presidential administration, when none of the three presidents in question (Manuel Zelaya, Álvaro Colom and Daniel Ortega) had legislative majorities. In Panama, the law was passed in 2002 during the last third of the presidential period of Mireya Moscoso, when she had the support of the National Assembly, but within a polarizing political context that was the result of opposition to regulation in 2004 (later revoked) that imposed restrictions to the right of information.12 Figure 1 presents a summary of the brief legislative history of the 8 cases.

www.metricadetransparencia.cide.edu In June 2011, the Legislative Assembly of The Federal District passed a new law on transparency and access to information which corrects problems detected in the previous law. 12 See Michenerp. 307:URL http://gregmichener.com/Greg%20Michener%20Dissertation-The%20Surrender%20of%20Secrecy%20in%20Latin%20America--2010.pdf 11

Figure 1: Legislative History 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Chiapas Federal District

Puebla Yucatan Guatemala Honduras Nicaragua Panama ** Federal District passed a new law on transparency on March 28, 2008, which revoked the original law of May 8, 2003.

Chapter 2 Dimension 1: Normative Framework In the analysis of government transparency and access to public information the study of current legislation has been the focus. It is clear that the mere existence of a law on access to information says little about the quality of the regulatory framework in general. The analysis of this dimension seeks to identify basic characteristics that would illustrate law quality in terms of the effective right of access to public information. The analysis of the laws presented in the following pages is not intended to be prescriptive or exhaustive. It is simply a general assessment of the legislation of the eight case studies. The goal is to offer a panoramic snapshot that helps to identify the main challenges and lessons in implementing the regulation of access to public information in the eight cases analyzed. This effort departs from a basic premise: although is essential to have legislation on access to public information, it is not enough to have a good law to guarantee an effective exercise of this right. It is also necessary -as mentioned in the introduction- an institutional framework and a set of management practices that harmonize and strengthen government transparency in daily governmental activities. That is, although a strong legislation reduces the likelihood of facing problems during the implementation of a public policy on access to information, it does not replace it, nor does it replace all the elements that constitute a transparency system (which goes beyond the right of access to information). In the same logic, the negative consequences of a bad legislation may be attenuated in practice by institutions or actors who manage to adjust routines and procedures to overcome legal weaknesses and, thereby, facilitate citizen access to public information. In this report, the analysis of the normative framework includes ten categories, or key elements, considered to be necessary to consolidate a strong legislation on access to public information.13 This classification is based on the study 2010 Metrics of Transparency which assessed all Mexican legislations on this subject according to the principles contained in article 6th of the Mexican Constitution. The methodology of the 2010 Metrics of Transparency also followed the guidelines of the Código de Buenas Prácticas y Alternativas para el Diseño de Leyes de Transparencia y Acceso a la Información Pública (Code of Good Practices and Alternatives for the Design of Laws of Transparency and Access to Public Information),14 developed by Mexican and international scholars.15

It is important to mention that these categories are not the same as those employed in the implementation of the Metrics for Transparency 2010. 14 See Sergio López Ayllón, 2007. In the 2010 Metrics for Transparency, it is explained that the “Code is the result of a consultation and consensus exercise led by the Commission on Public Information (Comisión Mexicana de Acceso a la Información Pública) and the Federal Institute for Access to Public Information (Instituto Federal de Acceso a la Información), and is technically developed by a group of researchers from the Instituto de Investigaciones Jurídicas (Institute for Legal Research) of [Universidad Nacional Autónoma de México (National Autonomous University of Mexico) and Center for Economic Research and Teaching (Centro de Investigación y Docencia Económicas)” see 2010 Metrics of Transparency, p. 15.

The ten elements of analysis were: 1. The legislation has constitutional support that defines access to information as a citizen´s right. 2. The legislation clearly identifies government actors who have the obligation to provide information. 3. There is an information catalog that must be available without any type of request (i.e., identification of a list of information that should be public). 4. The type of information that may be considered as reserved or confidential is accurately regulated. 5. The process to classify certain information as reserved or confidential is accurately regulated. 6. There is an administrative (or judicial) process available to citizens in order to demand the right of access to information. 7. There are provisions regarding administrative records. 8. A guarantor or specialized agency is established to verify compliance with the obligations regarding access to information. 9. The mechanisms available to citizens for them to request information are clearly defined. 10. There are administrative responsibilities (and possible sanctions) for public officials who fail to provide information to citizens. Each of these elements, however, is weighted in a specific order to reflect its relative importance within the regulatory framework (see Table 2). Thus, the elements related to “the type of public information, guarantor agency, as well the access process and the appeal, has a relative higher importance.” In contrast to the original methodology, at an intermediate level, the existence of constitutional support for access to information as a citizen’s right is also weighted.16 Finally, there are "aspects related to the organization of information and institutional design," or incentives. The following table summarizes the weight used. For a better understanding, an index was created which adds the result of each of the categories analyzed and produces a value score in a scale between 0 and 1, where 1 is representative of a law which fulfills, in general, all the categories of analysis.17

A note of caution is worth noting here: The following analysis is restricted to legislative dispositions, partially leaving aside the study of regulations and other normative dispositions. 16 In the original methodology, this category received the lowest weigh since it referred to principles raised by the Federal Constitution; the level of demand in terms of legislative development was lower. As this analysis is not restricted to Mexican states, it was considered prudent to give greater weight to these elements. 17 The score achieved should not be read, of course, as a quality rating of the law; it is simply a reflection of the categories listed in the legislation.

Table 1: Weight of the Normative Analysis Code A B

D E F G H I J

Category Weight There is an information catalog that must be available 1 without any type of request (public inquiries) There is an administrative (or judicial) process available to 1 citizens in order to demand the right of access to information A specialized agency is established to verify compliance with the obligations regarding access to information (transparency 1 institution) Clearly defined mechanisms available to citizens in order to 1 request information The legislation has a constitutional support that defines access to information as a civil right The legislation clearly identifies government actors who have the obligation to provide information The type of information that may be considered as reserved or confidential is accurately regulated The process to classify certain information as reserved or confidential is accurately regulated There are provisions regarding administrative records There are administrative responsibilities (and possible sanctions) for public officials who fail to provide information to citizens

0.6 0.6 0.3 0.3 0.3 0.3

Table: 2 Categories of Analysis and Summary of Results Code (weight)

Honduras

Guatemala

Nicaragua

Panama

Chiapas

Federal District

Puebla

Yucatan

There is an information catalog that must be available without any type of request (public inquiries) There is an administrative (or judicial) process available to citizens in order to demand the right of access to information A specialized agency is established to verify compliance with the obligations regarding access to information (transparency institution) Clearly defined mechanisms available to citizens in order to request information

The legislation has a constitutional support that defines access to information as a civil right The legislation clearly identifies government actors who have the obligation to provide information

The type of information that may be considered as reserved or confidential is accurately regulated The process to classify certain information as reserved or confidential is accurately regulated There are provisions regarding administrative records There are administrative responsibilities (and possible sanctions) for public officials who fail to provide information to citizens Total

TOTAL

0.906

0.844

0.797

1.000

Table 2 summarizes the overall results and shows the heterogeneity of the standards, for while Mexican laws comply with the general categories of analysis, Central American laws are relatively behind in aspects that, as discussed below, are considered fundamental. As is evident, most of the laws analyzed incorporate the categories of study; nevertheless, in the case of Central American laws, the absence of specific regulations occurs particularly in the categories that receive the largest weight in the analysis. There are two important considerations in regards to the gray cells shown in Table 2. The first consideration is regarding the lack of constitutional support in the Honduran case. Although it is possible to argue that not all constitutional laws emanate or are found in the Constitution -since general legislation and/or other regulatory provisions can recognize or give constitutional character to a particular right- it is difficult to argue that the guarantee of protection to the information right is equivalent to other cases. If what is known as a constitutional block is neither recognized nor delimited, the protection of the right of access to public information could be made implicit rather than explicit.18 Still, it is important to notice that even though the law is relatively new, it already has a detailed secondary regulation. The second consideration is much more complex and it refers not so much to the absence of a guarantor entity in the cases analyzed, but rather to the existence of an institutional design, even a complex one, that guarantees the due respect to the right of access to public information of all citizens. Two weaknesses were identified: on the one hand, there is a dispersion of authority, and on the other there is a saturation of responsibilities in specific institutions. Both are counterproductive. The first case is mainly represented by Panama, where at least four institutions or authorities were identified that are in charge of monitoring the right of access to information (the National Transparency Council Against Corruption, the Ombudsman, the National Assembly and the Supreme Court). The main problem is that far from strengthening the protection of the right, the existence of multiple authorities with diffuse responsibilities- only creates uncertainty in the procedures. Moreover, although Panama recognizes a Habeas Data to interpose a motion, because of the characteristics of the process it constitutes an obstacle for the user as it contradicts the principle of â&#x20AC;&#x153;timeliness of information,â&#x20AC;? one of the most important principles in the right of access to information (See Annex B-1). The Habeas Data does not seem to guarantee this principle, as its resolution depends on an authority that, no matter the good will and good actions, faces a complex agenda (as all national supreme courts in the region). Apparently, the number of times Habeas Data has been used is particularly low and most likely this is due not to an effective resolution of requests for information or efficiency of the public information agencies (as discussed in later sections), but to the dispersion of responsibilities which creates significant confusion regarding who is the responsible authority and guarantor entity. There seems to be no clarity 18

For example, very recently, the Supreme Court confirmed that the treaties and conventions on human rights were part of the constitutionality of the Mexican law. Consequently, in early July this year, the same Court issued orders that limit military jurisdiction in the investigation and prosecution of the common law. Since 2009, the year in which the Inter-American Court of Human Rights ruled the Rosendo Radilla case, there had been pressure to limit the guarantees of military jurisdiction. This is just one example of the importance of recognizing a right under the constitution or to give explicit recognition to the elements that are part of the constitutional block.

for the Panamanian citizen on what to do, where to go or whom to call. The simplicity in the definition of actors and responsibilities is a key factor for an effective right of access to information.19 Somehow, Nicaragua presents a similar situation as there is not one, but several responsible or guarantor entities, known as Coordinating Units for Access to Public Information. There is a Coordinating Unit for each State branch, one in the two autonomous regions (NAAR and SAAR), in addition to those which correspond to the 153 municipalities. While the process to create these Coordinating Units is regulated, to date none have been created. Among various potential reasons, a first hypothesis that can be advance here is that there are no incentives (positive or negative) for the heads of each of the State branches, the two autonomous governments (NAAR and SAAR) and/or the municipalities to fully comply with the mandate. At this point, it is useful to mention that one of the most important principles for the operation of the responsible and/or guarantor entity is political, operational and management autonomy.20 The second problem identified (saturation of responsibilities) is presented in the case of Guatemala, where the Ombudsman is responsible for ensuring the right of access to information. As it is evident, the Ombudsman Office assumes this task as an additional responsibility. While access to public information is a fundamental right, it is important to recognize that the logic behind it is specific such that the protection of all fundamental rights by the same institution contradicts one of the key principles of ensuring the right of access to information; that is specialization. In this sense, the experience of the Mexican state of Queretaro is illustrative. In March of 2007, as an initiative of the Executive Branch, there was an attempt to merge the State Human Rights Commission and the State Commission on Government information. The reform led to a motion of unconstitutionality, which was settled by the Supreme Court in September 2008.21 The Mexican Supreme Court argued that “the merger of the state human rights agency and the access to information agency in Queretaro (is unconstitutional), because it affects the principles of autonomy and specialization recognized in article six of the State Constitution,” adding that “the absence of bilateral autonomy calls into question the effective, specialized, independent and impartial protection of the fundamental rights to be protected by each agency.22” By way of explanation, the judges argued that “the State Human Rights Commission, (...) monitors that individuals’ guarantees are not violated, while the State Commission on Government Information controls access to the data of any agency, including the first.”23 While the ruling of the Supreme Court is based on the recognition of autonomy that the constitution of Queretaro itself establishes for both institutions (at different levels), it is important to take these considerations into account as an invitation to think on the importance of having specialized 19

In the section on analysis of the responsible/guarantor entity, there will be further analysis on this topic. In Nicaragua, there is also the option of demanding the right of access to information by way of administrative litigation before the Administrative Chamber of the Supreme Court. In such case, it does not require the exhaustion of the administrative process. In practice, this mechanism is not affordable for citizens, although it is included in the Law. 21 Refers to the unconstitutional actions 76/2008 and its accumulated 77/2008 and 78/2008. 22 See the note of Julián Sánchez “Inconstitucional, fusión de organismos de derechos humanos y transparencia” in El Universal, published on September 25, 2008. URL: http://www.eluniversal.com.mx/notas/541555.html 23 Jesús Aranda “Ilegal, fusionar CEDH y órgano de transparencia de Querétaro” in La Jornada, September 24, 2008 http://www.jornada.unam.mx/2008/09/24/index.php?section=estados&article=036n1est 20

institutions for each of these topics. Figure 2 shows the overall results of the analysis so far, and allows for a comparison among the different cases.

Figure 2: Summary of the Normative Analysis Yucatรกn

Puebla

Distrito Federal

Chiapas

Nicaragua

0,84375

Guatemala

0,84375 0,90625

Honduras

0,796875

Panama 0

0,2

0,4

0,6

0,8

To conclude this section, we present the detailed results of normative framework analysis conducted in Metrics of Transparency of the four Mexican states included in this report (Figure 3). This data follows the original classification and weights. The goal is to show that through the detailed analysis of the normative framework, k, it is still possible to find additional differences and weaknesses in State laws on access to public information. It would be interesting to carry out a deeper analysis of the normative framework in the Central American countries to accurately identify risk and opportunities. To better understand what is shown in the figures it is important to mention that the assessment is organized according to an index scale, where 1 is the ideal score.

Figure 3: Normative Analysis of the Four Mexican States24

Chiapas

Distrito Federal

Puebla

Responsibilities and sanctions

Appeal

Access procedure

Institutional design

Specialized and impartialâ&#x20AC;Ś

Administrative files

Personal data

Confidential Information

Reserved information

Public information

Agencies subject to FOI

Principles

1 0,9 0,8 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0

YucatĂĄn

Figures presented in this section illustrate two relevant aspects of analysis. On the one hand, the main weakness of the laws of Central American countries is the absence of an autonomous guarantor agency with specific responsibilities. On the other hand, the figures also illustrate that even Mexican laws which have a perfect score (first exercise), show some disparities when making a detailed analysis of each of the categories. In this sense, it is important to emphasize that the most complicated issues in the homogenization of laws in Mexico are those related to (1) the specific definition of the agencies and actors subject to the access to public I information law (an issue which, incidentally, is also a weakness in the legislation of Central American countries, as will be seen in subsequent sections of this report), (2) the accuracy and scope of public information, (3) the regulation on how to determine confidential information and (4) the characteristics of the appeal process and/or procedures. An additional issue is related to archival regulation and promotion. Although it seems obvious, it is important to remember that there is no access to information without information. Although most of the laws analyzed include some kind of provision regarding archiving, these are short-range and/or nonbinding. It is important to update and/or complement the regulations in this area (for example, in Panama, where the corresponding law dates back to the fifties), and strengthen the capacity of responsible/guarantor agencies (or institutions responsible) to monitor the proper documentation of government decisions and for safeguarding information related to all public administration aspects. This does not exempt (on the contrary) offices and agencies from the legislative and judicial branches, as well as sub-national governments which are usually the ones with weaker capabilities.

A more detailed explanation is found in the general report, available at www.metricadetransparencia.cide.edu. There is an executive summary booklet in English.

Chapter 3 Dimension 2: Government Web Portals Government Web portals are a key tool for exercising the right of access to information. While it is true that in countries where Internet service coverage is limited, the scope and reach of these portals is restricted, it is also true that web portals can be an effective tool when they are complemented with other mechanisms of access to information.25 Therefore, to analyze a web portal-both in terms of the quality of information, as well as its user-friendly accessibility, a good proxy indicator is the overall operation of the system in terms of making public information available to citizens. To assess the web portal quality (Table 1) of the public entities mentioned, (or their equivalent, as described in Annex A) there were two reviews: first and third week of April 2011. The review was conducted according to weather the web portal included: 1. A visible “transparency” link in the home page. 2. Information on the institution’s regulatory framework. 3. Information on the organizational structure of the public office. 4. A report of activities and progress in the achievement of goals and objectives (results). 5. Personnel reports, directory of public officials and salaries. 6. Information on the institution’s budget. 7. Budget execution reports. 8. Information on contracts and public works. 9. Information on the institution’s audit reports. 10. Guidance on how to request information (other than information included in the portal). 11. A contact to obtain information regarding the web portal operation.26 To evaluate each indicator, a point (1) was assigned if the portal had the full information; half a point (0.5) if it only had partial information; and, zero (0) if the information was not available. When that 25

Helen Darbishire. 2010. Proactive Transparency: The Future of the Right to Information? A review of Standards, Challenges, and Opportunities. Washington DC, the World Bank (Access to Information Program Working Paper). 26 The legal framework regarding public information varies depending on the country. For example, in Guatemala the 11 topics to be assessed are included within a catalog of obligations established by the Ley de Acceso a la Información Pública (Law for Free Access to Public Information) as basic information. In contrast, in Honduras at least three of these indicators do not have legal support (for example, internal audit reports are not part of public information).

information was not found in the web portal, but it had a link to a different web portal that gathers such information, the rating was the same. The reported value is the average of the two reviews. Figure 4 shows the results:

Figure 4: Average per Question in the Four Central American Cases

Web portal operation

Request information

Audits

Contracts and public work

Budget execution

Budget information

Directory of public officials

Achievement of goals

Organizational structure

Regulatory framework

Transparency link

1 0,9 0,8 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0

Three findings stand out: 1) there is a link from the official site to the transparency page; 2) all applicable legislation is included; and 3) there is a presentation of the organizational structure. However, web portals have rarely include information regarding audit report to which public agencies have been subjected. This is a serious absence that threatens the notion of transparency as a tool for government accountability. The same can be said about information regarding the achievement of goals and results. Without a doubt, citizens will have more interest in knowing the results of government actions than knowing organizational structures or laws. Also noticeable are findings regarding what was not found. For example, information on how to make a request for access to information, if such information is not found in the website. This is particularly important since these two instruments (a website and a request of information) should have automatic complementarities. When a citizen does not find certain information on the site, he/she should be able to easily know the alternative means to obtain it. Beyond these general findings, the analysis also shows considerable variations between the public entities.

Figure 5: Average Score per Agency in the Four Central American Cases

Small rural municipality

Middle-sized urban municipality

Municipality of the capital city

Supreme Court

Office of the Comptroller General

Congress

Ministry of Public Works

Ministry of Social Security

Ministry of Education

Ministry of Heath

Ministry of Finance

Ministry of Government (of Interior)

Presidency

1 0,9 0,8 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0

Note: Nicaragua does not have Ministry of Public Works

The Ministry of Finance (or its equivalent) gets on average (and in three of the four countries) the highest rating. This is explained not only by the traditional technical sophistication of these ministries, but also because, in public discourse, the first reference of access to information and transparency has to do with financial and budgetary issues, which happens to be a key area of responsibility of these ministries. Not surprisingly, small rural municipalities obtained low scores. In two of the four countries (Panama and Honduras), the municipalities under study (Atalaya and Sabanagrande, respectively) did not have a web portal, so their score was 0. In this regard, the Nicaraguan municipality, Muelle de los Bueyes, positively stands out. This small rural municipality reached the third highest score in a country where there are still big challenges for proactive transparency. As it will be discussed below, this is similar to what happened in the Mexican state of Puebla where the capital city has one of the highest scores, despite having legal and political environments that were not conducive to transparency. Both examples show that proactive transparency is not primarily a problem of technology or budget resources, but of political commitment and public vocation in government actions. In contrast, the sites of the presidency have the second lowest rating. The head of the Executive Branch is not only legally required to provide information to citizens on its websites, but also, in order for the system of access to information to be further legitimated and work as a whole, should serve as example for the rest of the public administration and for the other branches of government. If lack of

transparency and access to information is perceived in the Presidency, it can be used as an excuse for less commitment to access to information in other governmental sectors. For example in Guatemala, the website of the Office of the President practically does not provide the information required by law. Nicaragua also got a low score, as the presidency does not have a transparency website. The link to its website -related to the Law on Access to Public Information (Ley de Acceso a la Información Pública) directs users to the Presidency’s Secretariat for Social Communication, which includes data of that Secretariat and not of the presidency. This is an important challenge, where it is necessary to consolidate a website that allows citizens to have greater knowledge of goals achieved by the Executive Branch.27 As shown in Figure 6, the lowest ratings corresponded to the two ends of the institutional spectrum: in Nicaragua and Guatemala the lowest score corresponded to the Presidency of the Republic, while in Honduras and Panama the lowest value corresponded to the rural municipalities analyzed (Sabanagrande and Atalaya, respectively).28 Figure 6: Average Score per Agency (2 visits) in the Four Central American Cases Guatemala

Nicaragua

Panamá

Honduras

Small rural municipality

Middle-sized urban municipality

Municipality of the capital city

Supreme Court

Office of the Comptroller General

Congress

Ministry of Public Works

Ministry of Social Security

Ministry of Education

Ministry of Heath

Ministry of Finance

Ministry of Government (of Interior)

Presidency

1 0,9 0,8 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0

Note: Nicaragua does not have Ministry of Public Works

On the other hand, in regards to the legislative branch, it is noteworthy to highlight the efforts that have been made to improve the website of the National Assembly and have transparency in the process of formation and passage of the law. See the Project “Nicaragua: Governance Indicators to Strengthen Public Policies” –UNDP- Nicaragua. 28 In the case of Panama, in regards to local government, there is an initiative currently running, by the National Authority for Government Innovation, from the e-MuNet project (Efficient and Transparent Municipalities), an attempt to modernize the municipalities by promoting the creation of portals in municipal governments.

To find a reference of heterogeneity that can exist in the operation of the system of public access to information, even within the same country, Figure 7 shows the data for the four Mexican states analyzed. The Federal District stands out due to its high ratings (explained by the effort of the local guarantor agency to ensure the government updates its web portals regularly). Puebla also stands out due to the low quality of its websites. However, as mentioned above, many municipalities in Puebla have higher ratings higher than the average for the state and the capital city registers even higher ratings. Figure 7: Average Score per Agency (2 visits) in the Four Mexican States Chiapas

Puebla

YucatĂĄn

1 0,9 0,8 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0 Executive Branch Decentralized Legislative Branch Judicial Branch agencies

Autonomous bodies

Municipalities

Beyond the hard data (which have to be taken with caution, given the limited observations with which they are developed) an analysis was also carried out on what can be considered as good and bad practices in the use of web portals. The outcome is analyzed below. The case of Guatemala stands out as good practice, where all ministry web portals have a similar format to meet their proactive transparency obligations both in the signaling of the transparency link, as in the organization and presentation of information. This characteristic facilitates citizen inquiries, as they do not need to be familiar with different systems and presentations each time they access a particular website. This is a practice that other countries could adopt to facilitate citizen access. Panama has just begun a similar process. In March 2011, the National Authority for Government Innovation issued the standards for government agency websites, which will reduce the proliferation of differentiated structures and content and will promote the use of websites to simplify bureaucratic processes in government agencies. Similarly, and also in the case of Guatemala, the relevance and updated information can be highlighted. Information can show not only annual budget allocations, but also changes made throughout the period. This is possible because inputs are regularly updated, thanks to GuatemalaÂ´s Integrated Financial

Management System (IFMS), which keeps an integrated accounting system that covers the entire public sector. The four Central American countries have an innovative practice for the publication of government procurement, one of the areas where transparency has greater potential to reduce discretion in awarding contracts and corrupt practices in government procurement. Nicaragua has an Information Registry of the Public Sector Procurement Management System, which includes updated information on all public sector administrative contracts. The portal Nicaragua Compra, www.nicaraguacompra.gob.ni, by the Procurement Office of the Ministry of Finance, allows citizens to obtain information on government procurement processes, from current contracts, contracts concluded during the year, a shortcut to the price list, as well as announcements of acquisitions and the system of prohibitions. Something similar happens in Guatemala with the Guatecompras system (http://www.guatecompras.gt), and in Panama with Panamรก Compra (http://www.panamacompra.gob.pa/portal/PortalPanama.aspx), a system developed to increase transparency, effectiveness and efficiency in government procurement. In Panama there is also a Website http://www.panamatramita.gob.pa/, which integrates a number of processes and services that different government agencies offer citizens. Finally, http://www.presidencia.gob.pa/transparencia/planilla/frames/planilla-presidencia02.html, provides information on government positions, people who occupy them, their remuneration and their employment relation with the State. It is about initiatives of transparency portals with reference to specific topics, which make it easier for citizens to search for information. Among the most important challenges to be solved are: a) Provide complete and updated information especially related to the exercise of responsibilities. While budget information is relatively complete and current, this is not the case with information related to the performance of activities, outcome indicators, results and goal compliance. b) Differentiate official institutional web portals from public relations/communications web portals. In many cases, particularly in Nicaragua, web portals do not display information about budgets, activities or personnel. c) Link governmental web sites with systems to request public information so that, from the site itself, people are able to know the procedure to request information and the necessary requirements.

Chapter 4 Dimension 3: Simulated User Exercise Beyond the normative framework, institutions and web portals, the efficiency of an access to public information system can be measure by the ability of public entities that are subject to the law to provide a timely and quality response to citizensâ&#x20AC;&#x2122; requests. No matter how extensive the proactive transparency is, the perception of access to governmental information resides in every citizenâ&#x20AC;&#x2122;s ability to request any public information that is defined by law and obtain it through a simple process. Moreover, every citizen request should fulfill criteria of relevance and importance. In other words, transparency is not only the existence of a generic right, of institutions that promote the exercise of this right, or of web portals containing information the government is obligated to make available. More than anything, it is the possibility that any citizen can activate a request for information process that ends with a satisfactory response. To carry out an assessment of the way in which governments in the four analyzed countries processed requests from their citizens, a simulated user exercise was launched to measure response time, steps in the process and the quality of the response. Two requests were made to each of the public entities listed in Annex A. The process involved in the requests was: 1. Requesting the official authorized and executed budget for 2010 of the corresponding institution, disaggregated by the standard budget items in each country. 2. Requesting the annual salary of the head of the institution. For every request, a record was kept of each step of the process: request date, notification date, extensions, costs or clarifications (if any), response date. Besides the process and periods of time, the quality of the received information was also analyzed using the following scores: one point (1) if the information received was complete; half a point (.5) if only one of the elements of the request was missing; zero (0) in every other case (when the information was incomplete, when it was declared inexistent, reserved or confidential, when the request was not answered correctly, when there was no response, or when it was not possible to file the request). This appraisal is based on two premises: that the information is public and that the office to which it was requested has the obligation to provide it and to have a mechanism to process the request. The exercise follows the logic of a citizen who is searching for public information. Beyond legal restrictions, administrative difficulties or procedural complexities, the importance for this analysis is whether the citizen received the information or not, if it was updated and complete, and how long it took.

Figure 8 shows the general results for the four analyzed countries. The variation, as shown, is significant. The most important finding for the purposes of this analysis (in spite of the limited number of observations) is not the aggregated data but the possibility of identifying the practices that explain these differentiated outcomes.29 Figure 8: Average Score of Responses for the Four Central American Cases 0,7 0,6 0,5 0,4 0,3 0,2 0,1 0 Honduras

Nicaragua

Guatemala

Panama

These results also hide the dispersion within each country, since there were significant variations regarding the type of public office, as shown in Figure 9. Figure 9: Average Response Score for the Four Central American Cases 1 Office of the President of the Republic

0,9

Ministry of Interior

0,8

Ministry of Finance

0,7

Ministry of Health

0,6

Ministry of Education Ministry of Social Development

0,5

Ministry of Public Works

0,4

Congress

0,3

Supreme Audit Institution Supreme Court

0,2

Municipality of the capital city

0,1 0

Middle-sized urban municipality

Honduras Nicaragua Guatemala Panama

A graphic representation of the request process can be find in Annex B

Small rural municipality

With the exception of Panama, all countries had public offices with the highest and lowest scores: public offices that fully answered the requests and those that did not do so (and that, as will be shown below, did not respond or even accepted the request). What this data shows is that this is a structural challenge, and validates the premise that the requested information was indeed public and available. What are different are the practices to request information. A point that deserves specific attention is the large number of public offices where none of the two requests could be filed, or that did not provide a complete response and, therefore, obtained a “0” score: 7 in Honduras, 10 in Nicaragua, 4 in Guatemala and 11 in Panama (out of a total of 13 public offices in each country). As shown in Figure 10, there are also significant differences in the response time. In some cases an immediate response was obtained (one working day) while in others the waiting period exceeded 20 working days.

Figure 10: Response Time (Business Days) in the Four Central American Cases Honduras

Nicaragua

Guatemala

Panama

25 20 15 10 5 Small rural municipality

Middle-sized urban municipality

Municipality of the capital city

Supreme Court

Supreme Audit Institution

Congress

Ministry of Public Works

Ministry of Social Development

Ministry of Education

Ministry of Health

Ministry of Finance

Ministry of Interior

Office of the President of the Republic

The entries with no scores in Figure 10 refer to requests that were not responded at all. This is, without a doubt, the main problem in the region: the frequent absence of mechanisms to receive process and respond to information requests. Among the main difficulties found were: 1. Requirements to fill the request. For example, in Panama, even when the law authorizes any person to make information requests, without presenting any explanation or reason, Article 6 of the law states that all requests must have (among other things) the identity card number and a telephone number where the person can be reached –which eliminates the anonymity and can be discouraging.

2. Little clarity on who is in charge of receiving the requests. As was mentioned in the previous section, a large part of the web portals do not have information about who is the officer in charge of receiving a request of access to information –and where to find her/him. This represents a potential barrier for citizens to request information, because they must have, in advance, information about how the corresponding public office works. The case of Nicaragua stands out in this aspect, because it was difficult to identify the person in charge of receiving the information and, therefore, the requests could not be filed. In many cases it was necessary to move among different offices/units, because there was no information on who was responsible for access to information requests. A similar problem was found in Panama, since the creation of a unit dedicated entirely (or even partially) to attend requests was not foreseen. Requests must be processed in reception/correspondence office. 3. Avoiding the reception of requests. In many public offices of the countries analyzed, the petitioners experienced long waiting periods and arbitrary decisions to avoid receiving the requests, claiming that the people in charge of the task were not in the office and, therefore, the requests could not be formally received. In other cases (such as in the Ministry of Education of Nicaragua), requests were received, but without delivering any document or official stamp to verify the reception. Finally, there were times in which the requests had to be reformulated (for example, so that they could be addressed to the highest authority in each office), and read and reviewed by several officers before being accepted. 4. Obstacles to deliver responses. Many difficulties were found in the Municipality of Santa Catarina Pinula, Guatemala for example, to obtain information. “Even with the constant requests, an excuse was always given by telephone; one of the excuses was that it was necessary first to explain the use to be given to the information requested (which is not a requirement according to the law); then, they stated that the type of information was confidential (when according to the law it is public information); and finally, that a photocopy of the applicant’s identity card had to be presented, which is not a legal requirement either.”30 A response was never received. 5. Inefficient electronic resources. In many of the countries, apparently, there is a mechanism to process requests through e-mail, but in reality, most of the time this mechanism did not provide any response (or, at least, an acknowledgment of reception). It is necessary to create mechanisms, other than officers’ e-mails, to process requests. For example, the Information Requests Management System (Sistema Administrativo de Gestión de Solicitudes de Información -SAGSI)) exists in Guatemala. It is a homogeneous system, already being used in many ministries, which, if operating correctly, could make the processing of the information requests easier.

José Antonio Pérez, "Guatemala: el acceso a la información pública," background paper for this analysis, 2011.

Request processing in the four Mexican states shows a significant difference (Figures 11 and 12 respectively). In the four cases, there are institutionalized processes to attend information requests. The low scores in most cases resulted from the low quality of the responses, and not from the impossibility of filing the requests. In the four Mexican states there is a standardized procedure (at least within the Executive Branch) to process information requests. In all public departments there is an office designated exclusively to receive, process and respond to these requests. Without a doubt, institutional strengthening hast to be the next step in the building of effective transparency systems in Central America: there is no need to change laws, what it is necessary is to change procedures, routines and behaviors. As stated by Mauricio Merino, it is all about transforming transparency into a public policy.31 In this aspect, the experience of Guatemala is noticeable, because this country –even with a newly created legislation-, has been able to build an institutional structure to process information requests. All central government entities (in the three branches of the State) and decentralized institutions have established specific units to process information requests. Also, internal officers’ networks have been created within each department, to work as a link to provide the information. Figure 11: Average Response Score per Public Office for the Four Mexican States Office of the Executive Secretariat of Government

Finance Secretariat Social Development Secretariat

0,9

Public Safety Secretariat

0,8

Secretariat of Health Public Education Secretariat

0,7

High Justice Tribunal

0,6

Congress

0,5

Supreme Audit Institution Transparency Commission

0,4

Electoral Institute

0,3

Human Rights Commission Water Commission

0,2

National System for Integral Family Development Municipality of the capital city

0,1

Middle-sized urban municipality

0 Chiapas

Distrito Federal

Puebla

Yucatán

Small rural municipality

Merino, Mauricio. 2006. "Muchas políticas y un solo derecho" in Democracia, Transparencia y Constitución. Propuestas para un debate necesario, edited by Sergio López Ayllón. Mexico: UNAM - Instituto Federal de Acceso a la Información Pública.

Small rural municipality

Middle-sized urban municipality

Municipality of the capital city

National System for Integral Family Development

Water Commission

Puebla

Human Rights Commission

Electoral Institute

Distrito Federal

Transparency Commission

Supreme Audit Institution

Congress

High Justice Tribunal

Chiapas

Public Education Secretariat

Secretariat of Health

Public Safety Secretariat

Social Development Secretariat

Finance Secretariat

Secretariat of Government

Office of the Executive

Figure12: Response Time (Business Days) in the Four Mexican States Yucatรกn

Figure 12: Tiempo de Respuesta (días hábiles) por Oficina Pública para los Cuatro Estados Mexicanos

Chapter 5 Dimension 4: Institutional Capacities of the Responsible/Guarantor Entity In the right of access to information analysis, special attention has been given to the characteristics of the legislation and, with less emphasis, to the requirements and specifications of its implementation. An equally transcendent aspect is the one regarding the authorities that are responsible to guarantee and/or enforce this right. Paraphrasing Laura Neuman, the approval of a good legislation on transparency is not the big challenge, but the consolidation of an institutional framework that materializes the right that is protected by law.32 Three models to procure and guarantee the right of access to public information are recognized in the world. The first is a “judicial review model” in which appeals are submitted before authorities of the Judicial Branch (in the United States, for example). In the second model, there is an information commissioner (or tribunal) with order-making powers where the defining characteristic is that this commissioner issues binding resolutions for entities subject to access to public information laws (such as the Federal Institute of Access to Public Information of Mexico. There is also an information commissioner in the third model, but this person does not have binding power, and only issues recommendations to the corresponding institutions; this person is like an information ombudsman (in Canada, for example).33 In the cases analyzed, the second model is predominant –a commissioner with binding decisions-, because it is the one that characterizes the four Mexican states and the Instituto de Acceso a la Información Pública (Institute of Access to Public Information) of Honduras. The situation becomes more diffuse in the cases of Guatemala and Nicaragua, where procuring the right of access to governmental information is a responsibility of the Human Rights Ombudsman, in the former, and of a series of Coordinating Units of Access to Public Information, in the latter. These characteristics put Guatemala as a hybrid between the first and the third models; while Nicaragua seems to be a hybrid between the second and the third models. In contrast, in Panama it is not clear, which agency is responsible for procuring and guaranteeing the right. The characteristics of the Panamanian case (specifically, the Supreme Court participation in the review of the Habeas data) suggest that Panama might be moving towards a judicial model. Irrespective of the type of model, a key condition for the effective enforcement of the right to access governmental information is that the responsible/guarantor entity has to have political and decision autonomy. By autonomy, it is understood as the existence of “differentiation of incentives and interests between the responsible/guarantor entity (´active´ entity) and the entities of access to information laws 32

Neuman, Laura. 2009. Enforcement Models. Content and Context. World Bank Access to information Working Papers. Washington DC: The World Bank. http://siteresources.worldbank.org/EXTGOVACC/Resources/LNEumanATI.pdf 33 Idem

(´passive´ entities).” The outcome of real autonomy is that “the institutional operation and survival [of the responsible/guarantor entity] are not subordinated to the convergence of interests of the [entities of access to information laws].”34 The responsible/guarantor entity must operate “free from all political interference and [must be] capable of resisting the influence of created interests.”35 The normative framework that determines the structure of the responsible/guarantor entity in the cases analyzed (in the Central American countries, specifically) calls into question their autonomy. One indicator of the level of autonomy is the procedure established to select the head of the responsible/guarantor entity: if it is the result of one actor making the decision, the level of autonomy of the head of the institution decreases. Following the same logic, as the responsibility of appointing the head of the institution is a shared responsibility (for instance, among opposite political parties) the appointed head may be more protected and have a larger margin of action that is less affected by individual (party) interests. This way, we find that the probability of autonomy increases when two government branches participate, in contrast with situations in which the decision is prerogative of a single branch or of the head of an institution. Of the cases analyzed, Nicaragua is probably the one that shows more vulnerability in the responsible/guarantor entity, since the head of each Coordinating Units of Access to Public Information is appointed by the highest authority of the branch or institution to which the Unit is attached, and from which it depends by hierarchy (this, even if it the position is fulfilled after an open competition). Figure 13 illustrates the differences.

Ríos Cázares, Alejandra and Juan Pardinas, 2009. Hacia la reforma constitucional: las entidades de fiscalización superior en México. Working paper 219, Division of Public Administration. Mexico: CIDE 35 (Neuman, 2009: 25)

Figure 13: Level of Autonomy of Responsible/Guarantor Entity

Autonomy Weak

Strong Chiapas

Federal District

The Ombudsman is appointed by Congress, from a short list proposed by the Legislative Committee on Human Rights formed by one member of each political party with legislative representation. The Executive Secretary is directly appointed by the Human Rights Ombudsman.

The Gran Comisión of Congress opens public announcement and submits a short list, it must have the vote of 2/3 of members present.

Advisors will be appointed by the Executive Head of State, who must be ratified by the State Congress or, where appropriate, by the Standing Commission by a qualified majority vote of members present.

After public announcement, the person will be appointed through the vote of two thirds of the members present during Federal District’s Legislative Assembly.

Appointed by the State Congress, through the vote of two thirds of its members, from a short list submitted by the Executive Head of State for each appointment.

Case

Nicaragua

Guatemala

Number of commissioners or position holders

Each Public Information Center will have the number of members that each branch, each Autonomous Regional Government and each Municipal Government determines

There are no commissioners, it is delegated to the Human Rights Ombudsman and he appoints an executive secretary

Validity of the mandate (years)

4 The head of each Committee of Access to Public Information will be chosen by competition, but dependent on the maximum authority of the State branch to which the Committee is assigned.

Appointment process

Puebla

Yucatan

The good operation of a responsible/guarantor entity not only requires a minimal level of independence, but also a clear definition of its duties, faculties and responsibilities. On this subject, the institutional system that prevails in Panama is characterized by diffused responsibilities and dispersed authority. Nicaragua is in a second level regarding the lack of clarity on duties and authority, where is not evident the scope of the mandate of each of the Coordinating Unit in accordance with the law, and according to the country study, neither have they been set up or their coordinating mechanisms. As shown in table 4, the rest of the cases seem to show more clarity in this regard. Table 3 also provides a standardized index on responsibilities, which illustrates the magnitude of the task of responsible/guarantor entities (1 is the highest score). Figure 14 shows the same information in a different format.

Table 3: Responsibilities of Responsible/Guarantor Entity or Equivalent

Faculties Guaranty agency or equivalent

Promote the right of access to information

Monitor the effective compliance of actorsâ&#x20AC;&#x2122; obligations

Keep request statistics

Knowledge on appeals

Sanctions

Issue a work report

Total

Guatemala

Human Rights Ombudsman

0.666

Honduras

Institute of Access to Public Information

Âż?

0.833

Undeter mined

Disperse: National Transparency Council Against Corruption

Ombudsman (trans. node)/ Ombudsman National Assembly

Supreme Court

Panama

Various

0.000

Nicaragua

Public Information Center

0.833

Chiapas

Institute of Access to Public Information for State Administration

1.000

Mexico City

Federal Institute of Access to Public Information

1.000

Puebla

Commission for Access to Public Information in Puebla

0.833

Yucatan

State Institute for Access to Public Information in Yucatan

1.000

Figure 14: Responsibilities of Responsible/Guarantor Entity or its Equivalent: Index of Responsibilities

1,000

Yucatรกn 0,833

Puebla Distrito Federal

1,000

Chiapas

1,000 0,833

Nicaragua Panamรก

0,000 0,833

Honduras 0,500

Guatemala 0,000

0,200

0,400

0,600

0,800

1,000

Autonomy, however, is not sufficient to ensure an effective responsible/guarantor entity. It is also important to have enough material and human resources to face the task. In order to give a graphic idea of the operational capacity of responsible/guarantor entities, Figures 15 and 16 show two considerations. The first contrasts budget resources of responsible/guarantor entities (in USD) and the number of public entities subject to access to public information laws that the same responsible/guarantor entities reported (in the case of the Mexican states) or that were identified (in the case of Central American countries). Figure 16 shows the proportion between available personnel and the index of responsibilities.

Figure 15: Budget of the Responsible/Guarantor Entity by the Number of Agencies Subject to the FOI Law

$60.000,00 $51.502,32 $50.000,00

$40.000,00

$30.000,00

$20.000,00 $8.723,61 $10.000,00

$7.756,36

$2.893,08

$2.592,16

$Guatemala

Chiapas

Distrito Federal

Puebla

Yucatan

Note: Budget data represents the 2008-2010 average for Guatemala and the 2008-2009 average for Mexican states.

Figure 16: Total Personnel of Responsible/Guarantor Entity, Number of Agencies Subject to FOI Law and Index of Responsibilities 146 146

150

1,000

127

130

121

0,900 0,800

110

0,700

0,600

0,500 0,400

30 10 -10

0,300 0,200

0,100 Guatemala

Chiapas Personnel

Distrito Federal Agencies subject to FOI

Yucatan Average

0,000

In the previous Figures, the number of obligated entities used was of those who were self-reported by Mexican states, and those that were identified from the legislation in the cases of the Central American countries. Although the information can give an idea, it is important to highlight that there might be some imprecision in all legislations in regards to the definition and number of obligated entities. While some laws mentioned public institutions generically, there are others that are very specific.36 The difference is crucial when considering that in these cases the legislation gives the responsibility of overseeing the correct fulfillment of the regulation to each one of the obligated entities. On this subject, it is again noticeable that Panama, according to Article 1 Numeral 6 of the Transparency Law, would have around 1,605 obligated entities, while Guatemala would have 35 according to its regulation (Figure 17). This is not a small challenge, because the number of obligated entities delineates the universe of action for the of the responsible/guarantor entity and can affect the budget and personnel requirements, besides determining the work plan. Figure 17: Number of Agencies Subject to FOI Laws 1605 1000 900 800 700 600 500

372

400 300 200 100

127 62

146

121

Responsible/guarantor entities are fundamental tools for an effective exercise of the right to access public information. These institutions should be responsible for promoting or coordinating the dissemination of the right to information, overseeing or proactively monitoring its implementation (such as publishing information in web portals), as well as of resolving conflicts when there is an information request at stake. Due to extension limitations, it is not possible for this report to present detailed information about the situation of the Mexican statesâ&#x20AC;&#x2122; responsible/guarantor entities, in which the main weakness is the low institutionalization of internal procedures (the absence of operating or archiving 36

Take as example the extreme cases of Jalisco and Quintana Roo, two Mexican states: While Jalisco identifies 735 agencies subject to FOI actors, Quintana Roo only acknowledges 17. This difference can be partially explained because Jalisco acknowledges municipal institutions, district courts, etc., as agencies subject to FOI actors, besides disaggregating institutions from the executive branch. Quintana Roo, in return, only identifies each branch of the Government and their Municipalities.

manuals, for example), which makes the institution vulnerable to potential loss of institutional memory. Secondly, there is an inconsistency between the human and financial resources available and the defined responsibilities.. For example, the Instituto de Acceso a la Información Pública (Institute for Access to Public Information) of the state of Chiapas is responsible to promote the right of access to public information within the state’s 118 municipalities, of which a large percentage is made-up of indigenous population who speak different native languages. This reality makes even more relevant the mandate of the responsible/guarantor entity of training the state’s municipalities on their responsibility to monitor that all entities subject to access to public information laws fulfill the specifications of public information. The Chiapas’ responsible/guarantor entity has made an important effort to create teaching material that translates the corresponding legislation into the different native languages and it also has made good progress in identifying and trying to adjust the traditional indigenous ways of organization to the right of access to information. Thus in the case of Chiapas, it is important not only the number of entities subject to the law, but also its characteristics. Something similar happens in Yucatan, which has a large population of Mayan descent dispersed throughout the state’s territory. The analysis of the responsible/guarantor entities shows that there are important challenges, especially for the four Central American countries. The first and most obvious is to make simpler and clearer the institutional design of government transparency. With the exception of Honduras and Guatemala, it is essential to clearly define the responsible entity as guarantor of the right of information, and mainly to resolve the issue of dispersion of responsibility. Another issue is the institutional design analysis of the responsible/guarantor entities. This is especially important for Nicaragua where there is little clarity about the autonomy of the Coordinating Units for Access to Information or the scope of their mandate. Almost five years after the legislation was passed, no Units have been established. The law exists in Nicaragua, but there is no one responsible for defending the right of access. A third challenge is to define the mandate, not only regarding the responsibilities of the responsible/guarantor entity (to promote the right, to know about review processes, to monitor web portals, apply sanctions, etc.), but also regarding its universe of action. This challenge is equally important for the eight cases analyzed. Finally, the first stages of implementation of the right of access to information demand a more intensive effort in terms of monitoring, institutional training, and guidance to citizens; therefore, national and sub-national governments must assign more resources to this effort. There is a pending question regarding the real costs and benefits resulting from the promotion of access to public information.

Conclusions The right of access to public information is precisely that: a right that requires and needs to be acknowledged in specific law. However, its effectiveness entails a public policy that secures not only a normative framework, but also a responsible/guarantor entity, procedural adjustments to the public administration, and to those institutions that are responsible for information. However, such an institutional framework would be useless without an extensive awareness campaign of this right, not only among citizens, but also among public servants. The final goal should be to build a culture of transparency, both for governments (that feel obligated to make their information public because they feel watched), and for citizens (that know and exercise their right). The analysis we presented in this report shows that the main challenge is to construct and consolidate a public policy that allows the structuring of a coherent system of access to public information. Albeit important progress has been made in all cases to consolidate a specialized legislation, there are still important challenges to continue to institutionalize a transparency system, and to consolidate capacity for effectively making public governmental information. More specifically, ten elements could be highlighted to be improved and strengthened regarding access to public information: 1. Clearly defining the responsible/guarantor entity and its responsibilities, as well as giving it autonomy and enough resources to guarantee its management, financial and operational capacities. 2. Clearly defining the universe of the responsible/guarantor entity, in terms of the entities that are obligated, as well as its scope of action. 3. Promote specialization in matters regarding access to information and transparency. 4. Define public policies to manage and archive/file information (archival management), as both are fundamental for the right to information. 5. Define and improve the “chain of command” regarding access to public information. This is particularly important for the entities subject to the law, which have not been able to institutionalize the logic of transparency in their daily routines, or have not yet unmistakably defined the people in charge, legal periods of time to respond to requests and legal consequences. It is advisable that the institutions in charge of enforcing the right of access to public information establish an effective mechanism to process information requests.37 This 37

In this area, examples can be taken from the Mexican states in which at least three operating methods have been identified (mainly in the executive branch and in some municipalities): the first method has an access unit per agencies subject to FOI actor, which means each institution has a “linking unit” and a reception window for requests; in the second method there is a single unit where there is only one window and one access unit, but there are also trained and appointed officers in each institution to respond to information requests. The third method has a supervising unit that oversees the actions of each institution (and each institution has its own linking unit and a reception window). The most important fact is that, independently from the method, these units hardly represent a new or additional burden, because there are skilled officers in public management who simply take on transparency responsibilities.

would give certainty to officers and citizens about the procedures to be followed, and would slowly decrease the current amount of barriers. 6. Assign sufficient resources to the responsible/guarantor entities so they can carry out their tasks efficiently. Besides searching for budget resources, it is necessary to guarantee the legal support and management capacities that help promote the exercise of the right and resolve disputes. 7. Use of information technologies to speed up procedures and reduce costs. This is not only about using computer equipment and cybernetic webs. There have been successful cases in the use of telephone lines through which users can request public information, or make a specific request. 8. Promote a transparency culture beyond the right to request information, such that freedom of information becomes part of every institutional routine. In this way, citizens’ requests are only a link in a more sophisticated chain of information-- that ensures a more proactive access to information through open government and participatory budget among others—and in turn articulates with other accountability mechanisms. 9. Sponsor political leaders –especially the national, state and municipal executive branch leaders– to take on an explicit commitment to the right of access to governmental information, so their example is an incentive for their subordinates and for other institutions. 10. Create a deliberate strategy to build “transparency capacities” in sub-national governments, since there is a serious unbalance between the transparency obligations (and expectations) of municipal governments, and the (management, technological and financial) capacities to meet them.38 The initial efforts in Central American countries and in the Mexican states must be deepened to make all types of municipal governments capable to respond to citizens requests for information. It is also necessary to think about the political use of access to information. Trying to make equal the legislation of access to public information (which is not a transparency policy) to an anti-corruption strategy is not only a mistake of substance, but also a mistaken strategy. The legislative histories in most of the cases analyzed in this report (as well as the institutions that are responsible for that legislation) show that the legislation was presented as a solution to high corruption levels. By the same token, access to information and transparency were introduced as synonyms to government accountability. Presenting transparency and legislation on access to governmental information in this way can be counterproductive for, at least, two reasons. First, information is a necessary condition for government accountability, but it is not sufficient. Government accountability entails the obligation of government agencies to report, explain and justify their actions and omissions to those who call for an account. Thus, to access public information is only 38

Guillermo M. Cejudo, "Capacidades para la transparencia y la rendición de cuentas en el ámbito municipal", in Rodolfo García del Castillo (coord.), Los Gobiernos Locales ante los retos de la globalización, Mexico, Universidad Autónoma MetropolitanaIGLOM, 2011 (forthcoming).

one of the three main actions of any accountability relationship, but does not represent the entire definition, as it does not imply an explanation or justification. The conclusion, therefore, is clear: the right of public information does not guarantee accountability. Usually, there are pending important issues such as the definition of responsible actors and responsibilities, or the specification of incentives and penalties, both fundamental elements of government accountability.39 Secondly, a state that is opened to transparency through access to information has fewer possibilities of corruption, but nothing else. Again, acknowledging the citizen right to access public information does not guarantee honest public officers. This can only be accomplished through integrated policies to improve democratic governance. Building a system of access to information entails costs, and it requires institutional adjustments and procedural adaptations. The results presented of the simulated user exercises and from the review of the web portals shows that it is very important to take on the challenge of institutionalizing access to public information. Even if there has been some progress in acknowledging the right to access public information, there is still a long way to go in the consolidation of a comprehensive public policy on government transparency. Only when all institutions, procedures, authorities and regulations are properly aligned, it will be possible to consolidate democratic governance, with transparency and accountability.

For more detailed information on this topic, see Sergio L贸pez Ayll贸n, Mauricio Merino and Guillermo Cejudo (coords). La estructura de la rendici贸n de cuentas en M茅xico. Mexico: IIJ-UNAM. 2010

References Ackerman, John M., and Irma E. Sandoval‐Ballesteros. 2006. ‘The Global Explosion of Freedom of Information Laws.’ Administrative Law Review. Alasdair Roberts. 2006. Dashed Expectations. Governmental Adaptation to Transparency Rules, in Christopher Hood and David Heald (eds.)Transparency. The Key to Better Governance. Oxford: Oxford University Press, pp. 107-126 Aranda Jesús. “Ilegal, fusionar CEDH y órgano de transparencia de Querétaro” in La Jornada, September 24, 2008 http://www.jornada.unam.mx/2008/09/24/index.php?section=estados&article=036n1est Banisar David. Freedom of Information Around the World 2006. A Global Survey of Access to Government Information Laws. Privacy International 2006 [visit. Available at www.privacyinternational.org. Ben Worthy. 2010. More Open But not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government. Governance 23 (4), 561-582 Bertoni, Eduardo Andrés. 2011. Libertad de información ¿tres palabras inofensivas? Leyes de acceso a la información y rol de la prensa. Washington: The World Bank. Cejudo Guillermo M. "Capacidades para la transparencia y la rendición de cuentas en el ámbito municipal", in Rodolfo García del Castillo (coord.), Los Gobiernos Locales ante los retos de la globalización, Mexico, Universidad Autónoma Metropolitana-IGLOM, 2011 (forthcoming). Cejudo Guillermo M., López Ayllón Sergio and Ríos Cázares Alejandra. 2011. Assessing transparency across levels of government in Mexico. Rules, institutions, and practices. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May. -- “Diagnóstico de la transparencia en México. Lecciones de la Métrica de transparencia 2010.” Transparencia y privacidad. Revista mexicana de acceso a la información y protección de datos. Darbishire Helen. 2010. Proactive Transparency: The Future of the Right to Information? A review of Standards, Challenges, and Opportunities. Washington DC, The World Bank (Access to Information Program Working Paper). Hood, Christopher. 2006. Beyond Exchanging First Principles? Some Closing Comments, in Christopher Hood and David Heald (eds.), Transparency: The Key to Better Governance. Oxford: Oxford University Press. López Ayllón Sergio, 2007. In the 2010 Metrics for Transparency, it is explained that the “Code is the result of a consultation and consensus exercise led by the [Comisión Mexicana de Acceso a la Información Pública (Commission on Public Information)] and the [Instituto Federal de Acceso a la Información (Federal Institute for Access to Public Information)], and is technically developed by a group of researchers from the Instituto de Investigaciones Jurídicas (Institute for Legal Research) of

[Universidad Nacional Autónoma de México (National Autonomous University of Mexico)] and [Centro de Investigación y Docencia Económicas (Center for Economic Research and Teaching)]”. López Ayllón Sergio, Merino Mauricio and Cejudo Guillermo (coords). La estructura de la rendición de cuentas en México. Mexico: IIJ-UNAM. 2010 Merino Mauricio. 2006. "Muchas políticas y un solo derecho" in Democracia, transparencia y Constitución. Propuestas para un debate necesario, edited by Sergio López Ayllón. Mexico: UNAM Instituto Federal de Acceso a la Información Pública. Michener, Greg. 2011. “FOI Laws around the World”, Journal of Democracy, Vol.22, No. 2, April. -- The Surrender of Secrecy: Explaining the Emergence of Strong Access to Information Laws in Latin America. URL: http://gregmichener.com/Dissertation.html See: July 13, 2011. Michener, Greg, and Bersch, Katherine. 2011. The Quality of Transparency. Text presented at the Midwest Political Science Association, April. Neuman, Laura. 2009. Enforcement Models. Content and Context. World Bank Access to information Working Papers. Washington DC: The World Bank. http://siteresources.worldbank.org/EXTGOVACC/Resources/LNEumanATI.pdf

Ríos Cázares, Alejandra and Pardinas Juan, 2009. Hacia la reforma constitucional: las entidades de fiscalización superior en México. Working paper 219, Division of Public Administration. Mexico: CIDE Pasquier, Martial, Nicolas Pauchard and Sarah Holsen. 2011. Resistance to transparency in Switzerland: a case study analysis of behaviors and justifications. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May. Sánchez Julián “Inconstitucional, fusión de organismos de derechos humanos y transparencia” in El Universal, published on September 25, 2008. URL: http://www.eluniversal.com.mx/notas/541555.html

Annexes Annex A Researched Public Entities by Country Guatemala Presidency of the Republic Ministry of Government (of Interior)

Honduras Presidential Office Secretariat Population and Interior Secretariat (Before: Interior and Justice Secretariat) Ministry of Finance Finance Secretariat Ministry of Public Health and Social Provision Secretariat of Health Ministry of Education Education Secretariat Secretariat of Social Welfare Work and Social Safety Secretariat Ministry of Communications, Infrastructure Secretariat of Public Works, Transportation and and Housing Housing (SOPTRAVI) Congress Congress Office of the Comptroller General High Court of Accounts Supreme Court Supreme Court Municipality of Guatemala Municipal Office, Central District (Department of Francisco Morazán) Municipality of Santa Catarina Pinula Municipal Office, San Pedro Sula (Department of Cortés) Municipality of Mataquescuintla Municipal Office, Sabanagrande (Department of Francisco Morazán)

Nicaragua Presidency of the Republic Ministry of Government

Panama Ministry of the Presidency Ministry of Government

Ministry of Treasury and Public Debt Ministry of Health Ministry of Education Emergency Social Investment Fund National Assembly of the Republic of Nicaragua Office of the Comptroller General Supreme Court Municipality of Managua Municipality of Diriamba Municipality of Muelle de los Bueyes

Ministry of Economy and Finance (MEF) Ministry of Health Ministry of Education Ministry of Social Development Ministry of Public Works National Assembly Office of the Comptroller General Judicial Branch Municipality of Panama (Panama Province) Municipality of David (Chiriquí Province) Municipality of Atalaya

Annex B

Process to Request Access to Public Information Process to Request Review and/or to Appeal

Annex B - 1 Guatemala Process to Request Access to Public Information before subject bound by Law on Access to Public Information (Decree 57-2008) Process to review before maximum authority of obligated by Law to Access to Public Information about Guatemala (Decree No. 57-2008). Annex B - 2 Honduras Process to Request Access to Public Information before subject bound by Law on Transparency and Access to Public Information (Decree 170-2006) Process to review before maximum authority of obligated by Law to Access to Public Information about Guatemala (Decree No. 170-2006). Annex B - 3 Nicaragua Nicaragua Law on Access to Public Information (Law 621- 2007) Process to Request Access to Public Information before subject bound by Law on Access to Public Information (Law 621-2007) Process to review before maximum authority of obligated by Law on Access to Public Information (Law 621-2007) Annex B - 4 Panama Process to Request Access to Public Information before subject bound by Law No. 6 of January 22, 2002

Annex B-1. Process to Request Access to Public Information to institutions and/or entities subject by the Guatemala Law on Access to Public Information (Decree 57-2008)

Information is not provided and/or delivered

Reply to requester in case there is a need to clarify or omissions

XOR

Lack of response to the request for access to information in a timely and legal fashion

Clarification was not presented or omissions were not rectified by requester

Delivery of information requested by ficta affirmative

Arts. 41, 42 LAPI

XOR

Art. 44 LAPI

Clarification was presented or omissions rectified by requester

Notification

XOR

Implement internal procedures to respond to the request for information

Arts. 20 LAPI

Internal procedures carried out.

XOR

Resolution to the request of access to information

XOR

Arts. 1 to 3, 9, 16 to 18, 19, 20 to 24, 40, 42 to 45 LAPI

Resolution to extend the deadline to respond to the request (in writing)

Deadline for responding to the request extended

Notification

Arts. 1 a 3, 9, 16, 18, 19, 20 a 24, 40, 42 a 45 LAIP

Resolution declaring that the requested information does not exist (in writing)

Notification

File and Registry

Negative resolution to access to information (in writing)

Basis and motivation for negative resulution

V V Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Requested information provided through a written copy or electronic means

Requester does not pay costs of reproduction

The end

Notification

File and Registry

Information requested is not provided

Partial negative resolution to access to information (in writing) Basis and motivation for partial negative resolution

V XOR

Negative resolution to access to information because clarifications were not provided or ommisions clarified within the due date allowed (In writing)

File and Registry

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Issuing simple or certified copies of requested information

Reproduction costs paid by requester

Means of copying information provided by requester

Basis and motivation to extend deadline for responding to the request

Payment of reproduction costs

Arts. 3, 18 LAPI

File and Registry

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

Information requested provided to requester

XOR

Arts. 1 to 3, 9, 16, 18, 19, 20 to 24, 40, 42 to 45 LAPI

Arts. 20, 38 LAPI

Request submitted to responsable official

Guided/assisted request for access to information before Unit of Public Information/Liaison (Verbal, written, using model, or electronically)

Arts. 1 a 6, 9, 16, 19, 20, 38, 41 LAPI

Request is sent to responsable official

Information made available to the requester for consultation in the institution/entity subject to the law (for free)

Request received

XOR

Guidance to interested citizens

Request submitted

Favorable resolution to the request for access to information (in writing)

Requester (active subject)

Request for access to information to Unit of Public Information/ Liaison (Verbal, written, using model, or electronically)

Notification

File and Registry

Requester or legal representative

Appeal for review before the highest authority of the Institution/entity subject to the law

Processing the appeal request for review

Annex B-1. Process to Request Review (and/or appeal) to Supreme Authority- Guatemala Law on Access to Public Information (Decree 57-2008)

Process to request access to public information

Refusal of access to information

Requester or legal representative

Appeal for review before the highest authority of the Institution/entity subject to the law

Receipt of the appeal request for review

Arts. 52 to 58 LAPI

Appeal request recieved

Resolution of the appeal request for review

Resolution of the appeal request for review (in writing)

Arts. 58 to 60 LAPI

Injunction ordering that resolution is enforced

XOR

Resolution fulfilled

File and Registry

Resolution not fulfilled

Certification of noncompliance before the competent court

Art. 60 LAPI

Resolution declaring that the requested information does not exist

Notification

Certification of noncompliance before the competent court

Procedure before the competent court

Art. 60 LAPI

Information provided is considered incomplete or it does not correspond to request

File and Registry

Adoption of administrative measures to implement the resolution

Adoption of administrative measures to implement resolution

Procedure of administrative responsibility

Art. 60 LAPI

Lack of response in terms provided for in the LAPI

Deadline for providing requested information expired

Resolution to classify information as restricted or confidential

Resolution to extend the deadline of reserved information

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Confirm decision to Information Unit

Revoke the decision of the Information Unit and instruct provision of requested information allow consultation or make changes, corrections or deletions of sensitive personal data

Modify the decision of the Information Unit and instruct provision of requested information, allow consultation or make changes, corrections or deletions of sensitive personal data

Provide deadlines and procedures for implementation of resolution

Notification

Requester

Proctetive action

Procedure to activate protective action

Annex B-2. Process to request access to public information from Institution subject by the Law on Transparency and Access to Public Information of Honduras (Decree 170-2006)

XOR

Clarification not presented or incomplete information presented by requester

Requirring the applicant to clarify or supplement the request.

The end

Art. 49 LTAPIR

Clarification presented or information from requester completed

Request Reception

Request received

Resolution of request to Access information

XOR

Petition for Access to information (Favorable Resolution)

XOR

Arts. 3 TO 5, 14, 15 LTAPI Arts. 5, 8, 9, 11, 50 tp 52 LTAPI

Notification

Resolution to extend the deadline to respond to the request

Extending the resolution deadline for the request to Access to information

Notification

Arts. 3 to 5, 14, 16, 17, 19, 21, 22 LTAPI Arts. 5, 8, 9, 34, 35, 50 to 52 LTAPIR

Art. 49 LTAPIR

Remit to the responsible Institution

Request submitted to the Institution/ entity subject to the law

Institution/entity subject to the law does not have competencies to provide information

Notification

V XOR

File and Registry

Notification

Requester does not pay costs of reproduction

The end

File and Registry

Information requested is not provided

No resolution of request to access to information within the legal deadline.

File and Registry

Resolution declaring that the requested information is unavailable (in writing).

Resolution denying Access to information

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Reproduction costs paid by requester

Notification

XOR

Requested information provided to requester by fax, postal service or electronically

Printed information made available to the public electronically

Institution/entity subject to the law does not have requested information because it is not within its competencies Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

Payment of reproduction costs

Requested information provided in person to requester

Art. 15 LTAPI Arts. 5, 8, 9, 34, 35, 50 to 52 LTAPIR

Reasons/basis for the denial (in writing)

File and Registry

Official Identity document

Communication of reasons that justify exceptional extensi贸n

Individual orientation

Guided request to Access information to the Public Information Officer (in writing with forms or electronically)

Requested information provided to requester

Arts. 3 to 5, 14, 16, 17, 19, 21, 22 LTAPI Arts. 5, 8, 9, 34, 35, 50 to 52 LTAPIR

Arts. 3 to 5, 20 LTAPI Arts. 5, 11, 47 to 49 LTAPIR

Official Identity document

Internal procedures carried out

XOR

Implement internal procedures to respond to the request for information

Request access to informationto the Public Information Officer (in writing, with forms or electronically)

Requester or legal representative

File and Registry

Notification

File and Registry

Requester or legal representative

Appeal process for review made to IAPI

Appeal Process for review

Annex B-2. Process to Request Review (and/or appeal) to the Institute of Access to Public Information in Honduras.

Process to request Access to public information

Denied resolution to Access to information

Requester or Legal Representative

Appeal process for review made to IAIP

Reception of the request for review Art. 26 LTAIP Arts. 64 to 66 LTAPIR

Request for review received

Appeal process for review accounted in the the office of the president of the institution Art. 26 LTAPI Art. 67 LTAPIR

Appeal process for review accounted in the the office of the president of the institution

Appeal process for review being reviewed by appointed commissioner. Art. 26 LTAP Art. 67 LTAPIR

Request for review by appointed commissioner

File integration

Art. 26 LTAPI Art. 67 LTAPIR

Integrated file

XOR

Draft resolution submitted to the Plenary of the Institute

Elaboration and presentation of Resolution draft to the Plenary of the Institute

XOR

Meeting hearings with the parties

Hearing carried out

Resolution of the appeal request for review

XOR

Resolution of appeal request for review (in writing)

Notification

Resolution of the appeal request for review notified

Procedure of protection action appeal

Art. 26 LTAPI Arts. 67 to 69 LTAPIR

Art. 26 LTAPI Art. 67 LTAPIR

XOR

File and Registry Extension of the deadline for preparation and presentation of resolution draft

Arguments and allegations argued by the parties

Art. 26 LTAPI Art. 67 LTAPIR

No resolution of request to access to information within the legal deadline

Extend the deadline to appeal resolution

Presentation of arguments outside of the hearing

Arguments and allegations argued by the parties

Extended the deadline of the appeal request resolution Art. 26 LTAPI Arts. 67 a 69 LTAPIR

Art. 26 LTAPI Arts. 67 to 69 LTAPI

Information that was provided is considered incomplete or does not correspond to the request.

Resolution to extend the deadline to resolve the appeal request for review

Resolution declaring that the requested information is unavailablele

Notification

Discard or dismiss the appeal

Art. 26 LTAPI Art. 67 LTAPIR

Confirm the decision of the subject institution/ entity

File and Registry

Particular

Repeal or modify the decision of subject institution/ entity

Dissatisfaction with the time, cost or modality information was provided.

To order to subject institution/entity that allow access to the requested information or personal data To order to subject institution/entity the reclassification of the information To order the subject institution/ entity the modification of the data Guidance about deadlines and procedures for implementation of the resolution

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Order to inform to body of internal control of subject institution for star the procedure of responsibility

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

No resolution of appeal request within the legal deadline/ If the Act is repetitive means as confirmed

The end

Procedure for administrative responsibility

Request for resolution reconsideration that confirming the negative of access to information

Request procedure Processing for reconsideration

Annex B-3. Process to request access to public information from entity subject to the Law of Access to Public Information of Nicaragua (Law 621-2007)

The end

Art. 27 LAPI Art. 74 LTAPIR

Clarification was presented or data completed by the requester

XOR

Arts. 2, 3, 6, 26, 27, 34 LAPI Arts. 3, 5, 10, 73 to 75 LTAPIR

Information requested to the administrative unit or area that produces, controls or possesses requested information

Request for information to the administrative unit or competent area Arts. 3, 6, 9, 28 LAPI Arts. 10, 11, 78 LTAPIR

Copy of the registry form of the request (with date of request)

Guidance to citizens

Request for access to information to Unit of Public Information/ Liaison (Verbal, written, using model, or electronically)

File and Registry

Resolution to the request of access to information

Request for authorization to a private citizen to provide private information

Notification

XOR

Arts. 1 to 3, 6, 11, 15 a 17, 28, 35, 36 LAPI Arts. 3, 10, 11, 51, 55, 62, 64, 76, 82, 85 LTAPIR

Authorization granted by the owner of the private information

XOR

Resolution to extend the deadline to respond to the request

Entity subject by the law does not have the information requested because it is beyond its scope

Art. 27 LAPI Art. 74 LTAPIR

Notification

Non-response from the owner of the private information (negative)

Communication of reasons, rationale and motivation for an exceptional extensi贸n

Guidance to requester

Authorization denied by the owner of the private information

Requested information is provided

XOR

Arts. 1 To 3, 6, 11, 30, 32, 33 LAPI Arts. 3, 5, 10, 64, 72, 82, 85 LTAPIR

Notification

Arts. 1 to 3, 6, 11, 15 a 17, 28, 29, 35, 36 LAPI Arts. 3, 10, 11, 51, 55, 62, 64, 76, 77, 79, 82, 85 LTAPIR

XOR

Entity subject to the law does not have competencies to provide information

Resolution to extend deadline of the request for access to information

Art. 64 LTAPIR

File and Registry

Favorable resolution to the request for access to information (information is made available)

XOR

Request received and registered

Payment of reproduction and shipping costs

XOR

Reproduction and shipping costs paid by the requester

Art. 31 LAPI Arts. 10, 70, 71, 83 LTAPIR

Notification

File and Registry

Reproduction and shipping costs not paid by the requester

The End / Request filed without OPIA responsibility

Information on Internet for public consultation (communication of data access)

File and Registry Indication of date and number of newspaper, newsletter, Official Gazette or media in which the information was published

V Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Notification

Information provided to access by people with disabilities or special language needs

Negative resolution to access to information

Guidance of the possibility to appeal

Guidance about the posibilitiy to star a process in administrative courts

V XOR

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Delivery of requested information by email

File and Registry

Basis and motivation for negative resolution

Precise Indication of place and official to whom the citizen must contact to view the information

Issuing simple or certified copies of requested information

Guidance to Requester about the competent authority/entity

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

File and Registry

Information made available to the requester for onsite consultation

Reception and registration of the request

XOR

Requester

Request for access to information to OPIA / Delegation Offices (Verbal, written or electronically)

Requester does not demand the provision of requested information within 30 working days after notification of availability of information

XOR

Clarification was not presented or incomplete data presented by the requester

Lack of response to the request within the legal deadline administrative silence / acceptance of the request (except reserved or confidential information)

Reply to requester in case there is a need to clarify the request

The End / Request filed without OPIA responsibility

Notification

File and Registry

XOR

Requester / Legal respresentative

Appeal to the competent Coordinating entity of Access to Public Information

Processing of the appeal

Requester / Legal respresentative

Legal Action before the Administrative Court

Processing of the contentiousadministrative proceeding

Annex B â&#x20AC;&#x201C; 3 Process to Request Review (and/or appeal) to the of Access to Public Information Coordinating Unit

Art. 37 LAPI Arts. 87 to 91 LTAPIR

Appeal received and recorded

Review and acceptance of the appeal

XOR

Appeal allowed

Art. 37 LAPI Arts. 87 to 92 LTAPIR

Appeal is transferred

Art. 37 LAPI Art. 92 LTAPIR

Appeal dismissed

Lack of resolution to the request within the legal deadlines/ administrative silence

Legal Representative

Reception and registration of the appeal

Negative resolution to access the information

Notification

Appeal transferred to the authority that issued the review resolution

Intervention by the issuing authority of the review resolution

XOR

Report and evidence presented

Resolution of the appeal

XOR

Information provided considered incomplete or that does not correspond to the request

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

File and Registry

Notification

Art. 37, 38 LAPI Art. 93 to 95, 99 LTAPIR

Art. 37 LAPI Art. 92 LTAPIR

Lack of intervention by the authority that issued the review resolution

Hearing call

Art. 37 LAPI Art. 94 LTAPIR

Dissatisfaction with the time, cost, or the way the information was provided

Resolution of the appeal

Process to request access to public information

Appeal to the competent Access to Public Information Coordinating Unit (through writting or pre-defined format, in person or electronically)

Hearing call notified

Provision of evidence

XOR

Evidence presented

Art. 37 LAPI Art. 94 LTAPIR

Hearing takes place

Evidence admitted and reviewed

File and Registry

Evidence discarded

Decision rejecting the appeal / confirms the decision of the authority

Art. 37 LAPI Art. 93, 94 LTAPIR

Lack of provision of evidence

Hearing held

Resolution favorable to the requester / Revokes or amends the decision of the authority Order that accepts the provision of requested information (in case the authority omits resolving its granting or refusal / administrative silence)

Legal Representative

Legal action in the Administrative court at the Supreme Court of Justice

Processing of the contentiousadministrative proceeding

Annex B-4. Process to request access to public information to Institutions subject by the Law No. 6 January 22, 2002

Arts. 1.9, 1.10, 2, 3, 5 Law 6/2002

Art. 5 Law 6/2002

Notification

Internal process starts to respond to request for information

Internal processes completed

XOR

Resolution to respond to request for Access to public information

XOR

Extension of the deadline to respond to the request

Written information to the requester about the need to extend the deadline to gather information

Resolution extending the deadline for the request to access to public information

Proof of payment for costs of reproduction.

Arts. 1.11, 2, 3, 4, 6, 7, 11, 13 a 16 Law 6/2002

XOR

Non existence of information communicated in writing to the requester

Orientation to requester about Institution that has or may have the requested information.

Outcome has two or more steps to be made, of which one, more than one or all must be carried out.

XOR

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

V V

XOR

Proof of payment received by requester

Information requested provided to requester in digital, audio, photographic, cinematographic, or videographic formats

Payment not made by the requester

Information on source, location and mode of Access to information is publicly available

Art. 4 Law 6/2002

Notification

File and Registry

Decision-making mechanism which indicates that a process, an external process or an input /outcome has two or more steps to be made.

XOR

Grant simple or certified copies of requested information

Notification

Arts. 1.11, 2, 3, 4, 6, 7, 11, 13 a 16 Law 6/2002

Art. 7 Law 6/2002

File and Registry

Favorable resolution to the request of information

Request received

Request acknowledged by designated official

Unfavorable resolution to the request for information (in writing) Basis and motivation for the unfavorable response

Assigned request to respective designated official

Reception of request

Requester

Request Access to public informationto respective institution (in writing or by e-mail)

Notification

File and Registry

The End

Official confirmation that information requested was provided to the requester

Interested party

Acci贸n de H谩beas Data (Informaci贸n o dato personal negado o suministrado de manera insuficiente o inexacta)

Action of Habeas Data (information or personal data supplied denied or inadequately or inaccuratele presented) Arts. 17 to 23 Law 6/2002

File and Registry

Regional Centre for Latin America and the Caribbean, Panama Local Governance and Decentralization Area/Democratic Governance Transparency and Accountability in Local Governments (TRAALOG) Project Internet: http://www.regionalcentrelac-undp.org/en/democratic-governance/66 Cover Photo: Charlotta Sandin