acces to information in central america and mexico
DESCRIPTION
Acces to Information in Central America and Mexico: assessment and recomendationsTRANSCRIPT
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.
1Ackerman, 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. 2Some 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. 3Hood, 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. 4Also known as Mexico City.
5The 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 government´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 efforts’
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
6For 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 sub-
national 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
7Michener, Greg. 2011. “FOI Laws around the World”, Journal of Democracy, Vol.22, No. 2, April, p. 148.
8The 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.
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.
10
www.metricadetransparencia.cide.edu 11
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
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
13
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
15
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 Category Weight
A There is an information catalog that must be available
without any type of request (public inquiries) 1
B There is an administrative (or judicial) process available to
citizens in order to demand the right of access to information 1
C
A specialized agency is established to verify compliance with
the obligations regarding access to information (transparency
institution)
1
D Clearly defined mechanisms available to citizens in order to
request information 1
E The legislation has a constitutional support that defines
access to information as a civil right 0.6
F The legislation clearly identifies government actors who have
the obligation to provide information 0.6
G The type of information that may be considered as reserved
or confidential is accurately regulated 0.3
H The process to classify certain information as reserved or
confidential is accurately regulated 0.3
I There are provisions regarding administrative records 0.3
J
There are administrative responsibilities (and possible
sanctions) for public officials who fail to provide information
to citizens
0.3
Table: 2 Categories of Analysis and Summary of Results Code
(weight) Honduras Guatemala Nicaragua Panama Chiapas
Federal District
Puebla Yucatan TOTAL
A
There is an information catalog that must be available without any type of request (public inquiries)
8
B
There is an administrative (or judicial) process available to citizens in order to demand the right of access to information
8
C
A specialized agency is established to verify compliance with the obligations regarding access to information (transparency institution)
5
D
Clearly defined mechanisms available to citizens in order to request information
8
E
The legislation has a constitutional support that defines access to information as a civil right
7
F
The legislation clearly identifies government actors who have the obligation to provide information
8
G
The type of information that may be considered as reserved or confidential is accurately regulated
8
H
The process to classify certain information as reserved or confidential is accurately regulated
8
I There are provisions regarding administrative records
7
J
There are administrative responsibilities (and possible sanctions) for public officials who fail to provide information to citizens
8
Total 0.906 0.844 0.844 0.797 1.000 1.000 1.000 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 “timeliness of information,” 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. 20
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
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
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.
0 0,2 0,4 0,6 0,8 1
Panama
Honduras
Guatemala
Nicaragua
Chiapas
Distrito Federal
Puebla
Yucatán
0,796875
0,90625
0,84375
0,84375
1
1
1
1
Figure 3: Normative Analysis of the Four Mexican States24
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 non-
binding. 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.
24
A more detailed explanation is found in the general report, available at www.metricadetransparencia.cide.edu. There is an executive summary booklet in English.
0 0,1 0,2 0,3 0,4 0,5 0,6 0,7 0,8 0,9
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nfi
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Per
son
al d
ata
Ad
min
istr
ativ
e fi
les
Spec
ializ
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nd
im
par
tial
…
Inst
itu
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nal
des
ign
Acc
ess
pro
ced
ure
Ap
pea
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Res
po
nsi
bili
ties
an
d
san
ctio
ns
Chiapas Distrito Federal Puebla Yucatán
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
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.
0 0,1 0,2 0,3 0,4 0,5 0,6 0,7 0,8 0,9
1
Tran
spar
ency
lin
k
Reg
ula
tory
fra
mew
ork
Org
aniz
atio
nal
str
uct
ure
Ach
ieve
men
t o
f go
als
Dir
ecto
ry o
f p
ub
lic
off
icia
ls
Bu
dge
t in
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atio
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Bu
dge
t ex
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tio
n
Co
ntr
acts
an
d p
ub
lic
wo
rk
Au
dit
s
Req
ues
t in
form
atio
n
Web
po
rtal
op
erat
ion
Figure 5: Average Score per Agency in the Four Central American Cases
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
0
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Pre
sid
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(of
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r)
Min
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ce
Min
istr
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eath
Min
istr
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uca
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Min
istr
y o
f So
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Sec
uri
ty
Min
istr
y o
f P
ub
lic W
ork
s
Co
ngr
ess
Off
ice
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the
Co
mp
tro
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Gen
eral
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of
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-siz
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Smal
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ral m
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icip
alit
y
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
Note: Nicaragua does not have Ministry of Public Works
27
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.
0
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(of
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Min
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Min
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s
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Gen
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Guatemala Nicaragua Panamá Honduras
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
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 Guatemala´s Integrated Financial
0
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0,5
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0,7
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0,9
1
Executive Branch Decentralized agencies
Legislative Branch Judicial Branch Autonomous bodies
Municipalities
Chiapas DF Puebla Yucatán
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 Panamá 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 citizens’ requests. No matter how extensive the proactive transparency
is, the perception of access to governmental information resides in every citizen’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
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
29
A graphic representation of the request process can be find in Annex B
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Honduras Nicaragua Guatemala Panama
Office of the President of the Republic
Ministry of Interior
Ministry of Finance
Ministry of Health
Ministry of Education
Ministry of Social Development
Ministry of Public Works
Congress
Supreme Audit Institution
Supreme Court
Municipality of the capital city
Middle-sized urban municipality
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
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.
0
5
10
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20
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of
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Honduras Nicaragua Guatemala Panama
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.
30
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
31
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.
0
0,1
0,2
0,3
0,4
0,5
0,6
0,7
0,8
0,9
1
Chiapas Distrito Federal Puebla Yucatán
Office of the Executive
Secretariat of Government
Finance Secretariat
Social Development Secretariat
Public Safety Secretariat
Secretariat of Health
Public Education Secretariat
High Justice Tribunal
Congress
Supreme Audit Institution
Transparency Commission
Electoral Institute
Human Rights Commission
Water Commission
National System for Integral Family Development Municipality of the capital city
Middle-sized urban municipality
Small rural municipality
Figure12: Response Time (Business Days) in the Four Mexican States
0
5
10
15
20
25
30
35
Off
ice
of
the
Exec
uti
ve
Secr
etar
iat
of
Go
vern
men
t
Fin
ance
Sec
reta
riat
Soci
al D
evel
op
men
t Se
cret
aria
t
Pu
blic
Saf
ety
Secr
etar
iat
Secr
etar
iat
of
Hea
lth
Pu
blic
Ed
uca
tio
n S
ecre
tari
at
Hig
h J
ust
ice
Trib
un
al
Co
ngr
ess
Sup
rem
e A
ud
it I
nst
itu
tio
n
Tran
spar
ency
Co
mm
issi
on
Elec
tora
l In
stit
ute
Hu
man
Rig
hts
Co
mm
issi
on
Wat
er C
om
mis
sio
n
Nat
ion
al S
yste
m f
or
Inte
gral
Fam
ily D
evel
op
men
t
Mu
nic
ipal
ity
of
the
cap
ital
cit
y
Mid
dle
-siz
ed u
rban
mu
nic
ipal
ity
Smal
l ru
ral m
un
icip
alit
y
Chiapas Distrito Federal Puebla Yucatán
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.
34
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
Case Nicaragua Guatemala Puebla Chiapas Federal District
Yucatan
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 3 3 5 3
Validity of the mandate (years)
4 5 6 7 6 5
Appointment process
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.
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.
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 actors’
obligations
Keep request
statistics
Knowledge on appeals Sanctions Issue a
work report Total
Guatemala Human Rights Ombudsman 1 1 1 0 0 1 0.666
Honduras Institute of Access to Public Information
1 1 ¿? 1 1 1 0.833
Panama Various
Disperse: National Transparency Council Against Corruption
Ombudsman (trans. node)/ National Assembly
Ombudsman Supreme Court
Undeter mined
Undeter mined 0.000
Nicaragua Public Information Center
1 1 1 1 0 1 0.833
Chiapas
Institute of Access to Public Information for State Administration
1 1 1 1 1 1 1.000
Mexico City
Federal Institute of Access to Public Information
1 1 1 1 1 1 1.000
Puebla
Commission for Access to Public Information in Puebla
1 1 1 1 0 1 0.833
Yucatan
State Institute for Access to Public Information in Yucatan
1 1 1 1 1 1 1.000
Figure 14: Responsibilities of Responsible/Guarantor Entity or its Equivalent: Index of Responsibilities
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.
0,000 0,200 0,400 0,600 0,800 1,000
Guatemala
Honduras
Panamá
Nicaragua
Chiapas
Distrito Federal
Puebla
Yucatán
0,500
0,833
0,000
0,833
1,000
1,000
0,833
1,000
Figure 15: Budget of the Responsible/Guarantor Entity by the Number of Agencies Subject to the FOI Law
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
$-
$10.000,00
$20.000,00
$30.000,00
$40.000,00
$50.000,00
$60.000,00
Guatemala Chiapas Distrito Federal Puebla Yucatan
$2.893,08
$8.723,61
$51.502,32
$2.592,16
$7.756,36
6
32
146
34 35
127
146
121
0,000
0,100
0,200
0,300
0,400
0,500
0,600
0,700
0,800
0,900
1,000
-10
10
30
50
70
90
110
130
150
Guatemala Chiapas Distrito Federal Yucatan
Personnel Agencies subject to FOI Average
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
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 states’ 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.
0
100
200
300
400
500
600
700
800
900
1000
62
1605
35
127 146
372
121
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 Metropolitana-IGLOM, 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.
39
For more detailed information on this topic, see Sergio López Ayllón, Mauricio Merino and Guillermo Cejudo (coords). La estructura de la rendición de cuentas en México. Mexico: IIJ-UNAM. 2010
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Annexes
Annex A
Researched Public Entities by Country
Guatemala Honduras
Presidency of the Republic Presidential Office Secretariat
Ministry of Government (of Interior) 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 and Housing
Secretariat of Public Works, Transportation and 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 Panama
Presidency of the Republic Ministry of the Presidency
Ministry of Government Ministry of Government
Ministry of Treasury and Public Debt Ministry of Economy and Finance (MEF)
Ministry of Health Ministry of Health
Ministry of Education Ministry of Education
Emergency Social Investment Fund Ministry of Social Development
National Assembly of the Republic of Nicaragua
Ministry of Public Works
Office of the Comptroller General National Assembly
Supreme Court Office of the Comptroller General
Municipality of Managua Judicial Branch
Municipality of Diriamba Municipality of Panama (Panama Province)
Municipality of Muelle de los Bueyes 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
Request received
Reply to requester in
case there is a need
to clarify or omissions
Clarification was not presented or omissions were not rectified by
requester
Request submitted Resolution to the
request of access to
information
Clarification was presented or
omissions rectified by requester
Resolution to extend the deadline to
respond to the request (in writing)
Implement internal procedures to respond
to the request for information
Internal
procedures carried
out.
XOR
Notification
File and Registry
Deadline for
responding to the
request extended
V
V
Notification
File and Registry
Notification
File and Registry
V 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
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Basis and motivation to
extend deadline for responding to
the request
V
XOR
Information made
available to the
requester for
consultation in the
institution/entity
subject to the law
(for free)
Issuing simple or certified copies of
requested information
Requested information
provided through a written copy or
electronic means
Information requested
provided to requester
Notification
Favorable resolution to the
request for access to information (in
writing)
Payment of
reproduction costs
XOR
Negative resolution to
access to information (in
writing)
Resolution declaring that the
requested information does
not exist (in writing)
Basis and
motivation for
negative resulution
V
File and Registry
V
XOR VXOR
Delivery of information requested by ficta
affirmative
Information
requested is not
provided
XOR
Information is not
provided and/or
delivered
Arts. 1 a 6, 9, 16,
19, 20, 38, 41
LAPI
Arts. 41, 42 LAPI
Arts. 1 to 3, 9, 16,
18, 19, 20 to 24, 40,
42 to 45 LAPI
Arts. 3, 18 LAPI
Reproduction
costs paid by
requester
XOR
Means of copying
information
provided by
requester
Requester does
not pay costs of
reproduction
The end
Lack of response
to the request for
access to
information in a
timely and legal
fashion
Request for access to information to Unit of Public Information/
Liaison (Verbal, written, using model, or electronically)
Requester (active
subject)
Guidance to
interested citizens
XOR
Guided/assisted request for access to information
before Unit of Public Information/Liaison
(Verbal, written, using model, or electronically)
Notification
File and Registry
Request is sent to
responsable official
Request
submitted to
responsable
official
V
Arts. 20, 38 LAPI
XOR
Arts. 20 LAPI
Arts. 1 a 3, 9, 16,
18, 19, 20 a 24, 40,
42 a 45 LAIP
Art. 44 LAPI
Partial negative resolution to
access to information (in
writing)
Basis and
motivation for
partial negative
resolution
V
Negative
resolution to
access to
information
because
clarifications were
not provided or
ommisions
clarified within the
due date allowed
(In writing)
Arts. 1 to 3, 9, 16 to
18, 19, 20 to 24, 40,
42 to 45 LAPI
V
V
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)
Appeal request
recieved
Receipt of the appeal
request for review
Appeal for review
before the highest
authority of the
Institution/entity
subject to the law
Requester or legal representative
Process to request
access to public
information
Refusal of access
to information
Information provided is considered
incomplete or it does not
correspond to request
Resolution of the
appeal request for
review (in writing)
Confirm decision to
Information Unit
Resolution of the
appeal request for
review
V
Notification
V
File and Registry
Resolution declaring that the
requested information does
not exist
Lack of response in terms provided for in the LAPI
Arts. 52 to 58
LAPI
Arts. 58 to 60
LAPI
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
Deadline for
providing
requested
information
expired
Resolution to
classify
information as
restricted or
confidential
Resolution to
extend the
deadline of
reserved
information
Provide deadlines and procedures for implementation of
resolution
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
V
Injunction ordering
that resolution is
enforcedResolution fulfilled
Certification of non-compliance before the
competent court
Resolution not
fulfilled
XOR File and Registry
Art. 60 LAPI
Procedure of
administrative
responsibility
Certification of non-compliance before
the competent court
Adoption of administrative measures to implement resolution
Art. 60 LAPI
V
Adoption of administrative measures to
implement the resolution
Art. 60 LAPI
Procedure before
the competent court
Requester Proctetive action
Procedure to
activate protective
action
Notification
V
Annex B-1. Process to Request Review (and/or appeal) to Supreme Authority- Guatemala Law on Access to Public Information (Decree 57-2008)
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Request received
Requirring the applicant to clarify or
supplement the request.
Clarification not presented or incomplete information
presented by requester
Request ReceptionResolution of
request to Access information
Clarification presented or
information from requester completed
Resolution to
extend the
deadline to
respond to the
request
Implement internal procedures to respond to the request for information
Internal
procedures carried
out
XOR
Notification
File and Registry
Extending the resolution deadline for the request to
Access to information
V
V
Notification
File and Registry
Notification
File and Registry
V Requester or legal
representative
Appeal process for
review made to IAPIAppeal Process for
review
Communication of reasons that justify
exceptional extensión
V
XOR
Requested
information
provided in person
to requester
Printed information
made available to
the public
electronically
Requested
information provided
to requester
Notification
Petition for Access to information
(Favorable Resolution)
Payment of
reproduction costs
XOR
Resolution denying Access to
information
Resolution declaring that the
requested information is unavailable (in
writing).
Reasons/basis for the denial (in
writing)
V
File and Registry
V
VXOR
Information
requested is not
provided
Arts. 3 to 5, 20
LTAPI
Arts. 5, 11, 47 to 49
LTAPIR
Reproduction
costs paid by
requester
XOR
Requester does
not pay costs of
reproduction
The end
Request access to informationto the Public Information Officer (in writing, with forms or
electronically)
Requester or
legal
representative
Individual
orientation
XOR
Guided request to Access information to the Public Information Officer (in writing with forms or electronically)
Notification
File and Registry
V
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)
Official Identity
document
Official Identity
document
V
V
V
Art. 49 LTAPIR
File and Registry
The end
V
Remit to the
responsible
Institution
Art. 49 LTAPIR
Notification
File and Registry
VV
Institution/entity subject to the law
does not have competencies to
provide information
Request submitted
to the Institution/
entity subject to
the law
Institution/entity subject to the law
does not have requested information
because it is not within its
competencies
Arts. 3 to 5, 14, 16,
17, 19, 21, 22 LTAPI
Arts. 5, 8, 9, 34, 35,
50 to 52 LTAPIR
Art. 15 LTAPI
Arts. 5, 8, 9, 34, 35,
50 to 52 LTAPIR
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, 14, 15
LTAPI
Arts. 5, 8, 9, 11, 50
tp 52 LTAPIRequested
information
provided to
requester by fax,
postal service or
electronically
No resolution of request to access
to information within the legal
deadline.
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Request for
review received
Reception of the
request for review
Annex B-2. Process to Request Review (and/or appeal) to the Institute of Access to Public Information in Honduras.
Appeal process for
review made to IAIP
Requester or Legal
Representative
Process to request
Access to public
information
Denied resolution
to Access to
information
Information that was provided is
considered incomplete or
does not correspond to the
request.
V
Resolution declaring that the
requested information is unavailablele
Dissatisfaction with the time, cost
or modality information was
provided.
No resolution of request to access
to information within the legal
deadline
Art. 26 LTAIP
Arts. 64 to 66
LTAPIR
Appeal process for review accounted in
the the office of the president of the
institution
Appeal process for review
accounted in the the office of the president of the
institution
Appeal process for
review being reviewed
by appointed
commissioner.
Request for review by appointed
commissioner
Integrated fileFile integration
Elaboration and presentation of
Resolution draft to the Plenary of the Institute
Draft resolution
submitted to the
Plenary of the
Institute
Extension of the deadline for
preparation and presentation of resolution draft
XOR
Art. 26 LTAPI
Art. 67 LTAPIR
Art. 26 LTAP
Art. 67 LTAPIR
Art. 26 LTAPI
Art. 67 LTAPIRArt. 26 LTAPI
Art. 67 LTAPIR
Art. 26 LTAPI
Art. 67 LTAPIR
Resolution of appeal request for review (in writing)
Discard or dismiss
the appeal
Resolution of the
appeal request for
review
Confirm the
decision of the
subject institution/
entity
Order to inform to
body of internal
control of subject
institution for star
the procedure of
responsibility
V
Resolution to extend the deadline to
resolve the appeal request for review
Extend the deadline to appeal
resolution
Notification
File and Registry
Extended the deadline of the appeal
request resolution
V
V
XORMeeting hearings
with the partiesHearing carried out
Presentation of arguments outside
of the hearing
Arguments and
allegations argued
by the parties
Arguments and
allegations argued
by the parties
VXOR XOR
Repeal or modify the decision of
subject institution/entity
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
Notification
Art. 26 LTAPI
Art. 67 LTAPIR
Art. 26 LTAPI
Art. 67 LTAPIR
Art. 26 LTAPI
Arts. 67 to 69
LTAPIR
Art. 26 LTAPI
Arts. 67 to 69 LTAPI
Art. 26 LTAPI
Arts. 67 a 69
LTAPIR
To order the subject institution/
entity the modification of the
data
Guidance about
deadlines and
procedures for
implementation of
the resolution
No resolution of appeal request within the legal
deadline/ If the Act is repetitive means
as confirmed
The end
Particular
Request procedure
Processing for
reconsideration
Request for resolution
reconsideration that confirming the
negative of access to information
Resolution of the appeal request for
review notified
Procedure of
protection action
appeal
File and Registry
V
Procedure for administrative responsibilityOutcome has two or more steps to be made, of which one, more than one or
all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Request received
and registered
Notification
File and Registry
Copy of the registry form of
the request (with date of request)
Reply to requester in case there is a need to clarify the
request
Clarification was not presented or incomplete data presented by the
requester
Reception and registration of the
request
Resolution to the
request of access
to information
File and Registry
Resolution to
extend the
deadline to
respond to the
request
Request for information to the administrative unit or competent area
Information requested to the
administrative unit or area that
produces, controls or possesses
requested information
V
XOR
XOR
Notification
File and Registry
Resolution to extend
deadline of the request
for access to
information
V
V
Notification
File and Registry
V
Notification
File and Registry
V Requester / Legal
respresentative
Appeal to the
competent
Coordinating entity
of Access to Public
Information
Processing of the
appeal
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
V
Communication of
reasons, rationale
and motivation for
an exceptional
extensión
V
V
XOR V
Information made
available to the
requester for on-
site consultation
Delivery of
requested
information by e-
Information on
Internet for public
consultation
(communication of
data access)
Requested
information is
providedNotification
Favorable
resolution to the
request for access
to information
(information is
made available)
Payment of
reproduction and
shipping costs
XOR
Negative
resolution to
access to
information
Basis and
motivation for
negative resolution
V
File and Registry
V
XOR VXOR
Arts. 2, 3, 6, 26,
27, 34 LAPI
Arts. 3, 5, 10, 73 to
75 LTAPIR
Reproduction and
shipping costs
paid by the
requester
XOR
Reproduction and
shipping costs not
paid by the
requester
The End / Request
filed without OPIA
responsibility
Lack of response
to the request
within the legal
deadline -
administrative
silence /
acceptance of the
request (except
reserved or
confidential
information)
XOR
Processing of the
contentious-
administrative
proceeding
Request for access to
information to OPIA /
Delegation Offices
(Verbal, written or
electronically)
Requester
Guidance to
citizens
XOR
Request for access to information to Unit of Public Information/
Liaison (Verbal, written, using model, or electronically)
Art. 27 LAPI
Art. 74 LTAPIR
Clarification was presented or data completed by the
requester
Entity subject to the law does not
have competencies to
provide information
Guidance to
requesterNotification
File and Registry
V
Entity subject by the law does not
have the information requested
because it is beyond its scope
Art. 27 LAPI
Art. 74 LTAPIR
Guidance to Requester about the competent authority/entity
V
Arts. 3, 6, 9, 28
LAPI
Arts. 10, 11, 78
LTAPIR
V
Authorization
granted by the
owner of the
private information
Request for authorization to a private citizen to provide private
information
Authorization
denied by the
owner of the
private information
Art. 64 LTAPIR
Non-response
from the owner of
the private
information
(negative)
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
XOR
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
Guidance of the
possibility to
appeal
Guidance about
the posibilitiy to
star a process in
administrative
courts
Art. 31 LAPI
Arts. 10, 70, 71, 83
LTAPIR
Arts. 1 To 3, 6, 11, 30,
32, 33 LAPI
Arts. 3, 5, 10, 64, 72,
82, 85 LTAPIR
Precise Indication
of place and
official to whom
the citizen must
contact to view the
information
Issuing simple or
certified copies of
requested
information
XOR
Information
provided to access
by people with
disabilities or
special language
needs
Indication of date
and number of
newspaper,
newsletter, Official
Gazette or media
in which the
information was
published
Requester does
not demand the
provision of
requested
information within
30 working days
after notification of
availability of
information
File and Registry
The End / Request
filed without OPIA
responsibility
V
XOR
Requester / Legal
respresentative
Legal Action
before the
Administrative
Court
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Appeal received
and recorded
Reception and
registration of the
appeal
Annex B – 3 Process to Request Review (and/or appeal) to the of Access to Public Information Coordinating Unit
Appeal to the
competent Access to
Public Information
Coordinating Unit
(through writting or
pre-defined format,
in person or
electronically)
Legal Representative
Process to request
access to public
information
Negative
resolution to
access the
information
Information
provided
considered
incomplete or that
does not
correspond to the
request
XOR
Hearing takes
place
Evidence admitted
and reviewed
Resolution of the
appeal
Resolution of the
appeal
Order that accepts
the provision of
requested
information (in case
the authority omits
resolving its
granting or refusal /
administrative
silence)
V
NotificationAppeal is
transferred
Report and evidence
presentedXOR
Notification
File and Registry
V
Appeal allowedVReview and
acceptance of the
appeal
V
File and Registry
Intervention by the
issuing authority of
the review resolution
Appeal
transferred to the
authority that
issued the review
resolution
Lack of intervention
by the authority that
issued the review
resolution
Lack of resolution
to the request
within the legal
deadlines/
administrative
silence
V
Art. 37 LAPI
Arts. 87 to 91
LTAPIR
Dissatisfaction
with the time, cost,
or the way the
information was
provided
Art. 37 LAPI
Arts. 87 to 92
LTAPIR
Art. 37 LAPI
Art. 92 LTAPIR
Art. 37 LAPI
Art. 92 LTAPIR
XOR
Hearing call Hearing call notified Evidence
presented
Provision of
evidence
Art. 37 LAPI
Art. 94 LTAPIR
Lack of provision of
evidence
Art. 37 LAPI
Art. 94 LTAPIR
XOR
Evidence discarded
Hearing held
Art. 37 LAPI
Art. 93, 94 LTAPIR
V
Art. 37, 38 LAPI
Art. 93 to 95, 99
LTAPIR
Decision rejecting
the appeal /
confirms the
decision of the
authority
Resolution
favorable to the
requester /
Revokes or
amends the
decision of the
authority
Processing of the
contentious-
administrative
proceeding
Legal Representative
Legal action in the
Administrative
court at the
Supreme Court of
Justice
Appeal dismissed
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
Request received
Request Access to public informationto
respective institution (in writing or by e-mail)
Requester
Notification
File and Registry
Assigned request to respective
designated official
Request
acknowledged by
designated official
Reception of
request
Resolution to respond to request for Access to public
information
Internal process starts
to respond to
request for
information
Internal processes completed
V
Unfavorable resolution to the
request for information (in
writing)
Grant simple or certified copies of
requested information
Information
requested
provided to
requester in
digital, audio,
photographic,
cinematographic,
or videographic
formats
Non existence of information
communicated in writing to the
requester
Information on source, location
and mode of Access to
information is publicly available
XOR Notification
File and Registry
V
XOR Notification
File and Registry
V
Acción de Hábeas Data
(Información o dato
personal negado o
suministrado de manera
insuficiente o inexacta)
Interested party
Action of Habeas Data (information or
personal data supplied denied or
inadequately or inaccuratele presented)
Annex B-4. Process to request access to public information to Institutions subject by the Law No. 6 January 22, 2002
Basis and motivation for the
unfavorable response
VV
Favorable
resolution to the
request of
information
Proof of payment for
costs of
reproduction.
Proof of payment
received by
requester
XOR
XOR
Payment not made
by the requester The End
Arts. 1.9, 1.10, 2, 3,
5 Law 6/2002 Art. 5 Law 6/2002
Arts. 1.11, 2, 3, 4, 6,
7, 11, 13 a 16 Law
6/2002
XOR
Extension of the
deadline to respond
to the request
Notification
File and Registry
Resolution extending
the deadline for the
request to access to
public information
V
Written information to the requester
about the need to extend the
deadline to gather information
Art. 7 Law 6/2002
Arts. 1.11, 2, 3, 4, 6,
7, 11, 13 a 16 Law
6/2002
Art. 4 Law 6/2002
Official confirmation that
information requested was provided to the
requester
Orientation to requester about
Institution that has or may have the
requested information.
V
Arts. 17 to 23
Law 6/2002
Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V
XOR
Decision-making mechanism which indicates that a process, an external
process or an input /outcome has two or more steps to be made.
V
Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.
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