"The pockets of the rulers must be glass." Anonymous.
"A transparent look shows the light of the heart." Pacoyo.
"Honesty is a transparent dress." Spanish proverb.
Summary
The rights to transparency, access to public information and accountability, stand as champions of democracy and development, no doubt.
In this installment, more than a decade after the issuance of the Peruvian law on the subject, the author develops the disturbing, expectant as a worrying company.
Although it is true that it shows some evolution, there is still much to be done not only in the legislative aspect, but also in the attitude of the people.
Abstract
The rights to the transparency, access to the public information and rendition of bills, they rise as paladins of the democracy and development, there is no doubt.
In this delivery and to more than a decade of the dation of the peruvian law of the subject, the author develops the disturbing one, expectant as a worrying company.
Although it is certain that it shows an advance, it is a lot to not progress alone in the legislative aspect even, if not, rather in the attitude of people.
introduction
The rights to transparency, access to public information and accountability, constitute generating and consolidating axes of every society. Therein lies their importance and quintessence as edifying in all society. Thus, “(…) its validity constitutes a key element for the strengthening of the democratic regime”.
By the way, the Law of Transparency and Access to Public Information of the Peruvian State, Law No. 27806, has passed (as of 08/03/12) a decade in force, ergo, it is necessary to carry out an evaluation of the lights and shadows as effects to said stage of your donation.
"The Press and Society Institute (IPYS) finds on this date the most apt opportunity to say that a serious problem persists regarding the validity of the right of access to public information and compliance with the State's transparency obligations." This is far from what happened in modern States, where the right to information is the norm and secrecy is the exception. The parenthesis is ours.
It is painful to have to refer that: "(…) there are still many officials who prefer not to provide information for fear of being penalized by their superiors and choose to consult everything, thus hindering access to information (…)". Due to this, accessibility and usability are relegated.
Ergo, the present work, assumes the challenge, unraveling the aspects of this theme, with a maximalist, prospective and disruptive worldview.
II. Historical procrastination of transparency
It is extremely worrying that although it is true, on the one hand, that transparency, as a principle of government, appears in 384 BC, on the other we have more than two thousand years later, that is, in 1776, inspired by the Chinese practices, Sweden had the first access to government information law.
Therefore, unlike what CASTRO LEYVA pointed out, it is not surprising that Sweden is one of the countries in which access to public information has history and tradition.
III. Reference states in access to public information and accountability
Just as we refer to the unique example of Sweden, we can also mention the USA, because it has one of the most advanced and longest-standing laws, the FOIA (Freedom of Information Act), through which it is the Official staff in charge of providing the required information to any citizen who requests it. The information is selected, technically analyzed and made available to users through a series of specific procedures, processes and techniques.
To make matters worse, "from the ALA (American Library Association) archivists and librarians (in this country) are in favor of providing any government information that is requested."
In addition, we indicate the unique case of the advanced "Panamanian legislation that even contemplates a registry, a biological, chemical or physical storage of contents, which is quite advanced, and is even recognized by UNESCO as a very progressive practice."
Finally, we note that in one of the conclusions obtained from the Latin American Index of Budgetary Transparency of the month of July 2012, he refers to Costa Rica as the most transparent country in accountability in Latin America. "Costa Rica obtained a 59, lower than the note of 2009, but enough to keep, for the fourth consecutive year, the first place in transparency among five countries."
IV. Importance of transparency
Transparency takes on special importance insofar as it is configured as a promoter of forms of expression and protection, especially in the marginalized or deprived social sectors. Thus, "access to information is a fundamental tool for building citizenship."
In this regard, it must be noted that it could not be otherwise, since transparency and access to public information must be interpreted and applied for the benefit of the weak part of the state relationship, that is, of the population.
The same transparency in public management guarantees that citizens can properly exercise control (through accountability, for example) and surveillance, as well as, seek to give effect to the constitutional right to development.
So, the policy of making state management transparent only generates trust and support in the population. In this sense, we have to: "Transparency (…) generates two verifiable feelings: trust and certainty, which in politics translates into the desired legitimacy that every government seeks."
In this sense, it is necessary to: “The citizen demand for the defense of fundamental rights is essential to generate a transparent State that is accountable to society. A transparent State is a more legitimate State (…) ”.
V. Principles of the right of access to information
The American Convention on Human Rights has established as guiding principles:
5.1. Maximum disclosure.- Also called maximum publicity, although, it is worth noting that absoluteness does not obey its nature. It has consequences: i) The right of access to information is the rule and secrecy the exception, ii) The burden of proof in case of establishing limitations on the right of access to information corresponds to the State, and iii) The preeminence of the right of access to information in case of conflict of rules or lack of regulation.
At this point, it should be seen that unlike Peru, countries such as Chile, Guatemala, Mexico and El Salvador, exhaustively recognize this principle in their legal systems. Canada deserves a separate mention, since, for said State, the right of access to information does not have constitutional status.
5.2. Good faith.- It implies that the obligor must act in compliance with the spirit that embraces the law of transparency and access to state information and thus be able to contribute to the materialization of its objective.
Once again we have to attest that Peru remains in the saga of the present principle, as it is not positive in the regulations of the matter. Colombia does expressly recognize it.
In this order of ideas, we have that the law of transparency and access to public information of the federal district, establishes that: “public entities in their relations with individuals will attend to the principles of legality, legal certainty, impartiality, information, speed, veracity, transparency and maximum publicity of their acts (…) a reasonable cost of reproduction, freedom of information in good faith of the applicant and orientation and advice to individuals ”.
SAW. Influence of the inter-american court of human rights
From this set, it is necessary to bring up that said international human rights judiciary has played a leading role in the right of access to information: “in the case of Claude Reyes et al., It marked a jurisprudential milestone when it became the first international tribunal in recognize that access to information is a human right that is part of the right to freedom of expression ”.
VII. Contribution of the Peruvian constitutional court
Its contribution is undeniable, especially we refer to the plausible double-sided dimension that the aforementioned Court grants to the right of access to public information, that is, that via Judgment No. 1797-2002-HD / TC, it determines that it is an individual and also a collective right.
VIII. Contribution of the ombudsman's office
In the exercise of the constitutional mandate of control and supervision of the performance of state and private entities, with the budget that the latter provide public services; The Peruvian Ombudsman's Office carries out a transcendent as a commendable work in defense, in addition (in this subject, sub-examination), intervening before the violation or threat of violation of the fundamental rights to transparency, access to public information and Pay accounts.
In addition, exhaustively and tirelessly, it carries out promotional, dissemination and training actions for citizens from all corners of the national territory. Even before the transparency law came into force.
Its guidelines, recommendations, manuals, reports, directives and other defense documents, developed and disseminated, deserve a special mention, embracing the firm purpose of achieving the arrival of a culture of access to public information. What teaches and guides the actions of citizens.
IX. Relationship of the right of access to information
It is worth mentioning the relationship between the right of access to information and other rights. In this sense, we have: “the right of access to information is closely related to other human rights and contributes to their effective exercise, as the Office of the Rapporteur for Freedom of Expression points out within the framework of the Inter-American Commission on Human Rights in his Report of the year 2002 ”.
In these terms, it is stated that: “the right of access to public information has acquired a fundamental importance in the development of Human Rights, directly linked to other fundamental rights, such as the right of access to justice, the right to the truth, the right to make duly informed citizen and political decisions, to democratic development and to transparency in public administration ”.
X. Access to an information system and not to mere documentation
In the Claude Reyes et al. Case, the Inter-American Court of Human Rights affirmed that people have the right to seek "information" held by the State. In this way, a system of limited access to official documents or records is left aside in the Inter-American System.
It should be noted that: “Although the judgment should not define what should be understood by information, the Office of the Special Rapporteur understands that such concept has a broad meaning. Thus, by adopting a system of access to information and not to documentation, the object of the law is broad (…) ”.
In this order of ideas, it is understood that the range of possibilities, in terms of recognition of the right of access to public information, becomes healthy open.
XI. Causes of the refusal to grant public information
Above all, it is noted that in a generic way, the main cause is the culture of secrecy, installed in a large part of state society
Likewise, the non-access or inaccessibility to public information is mainly due to the incorrect actions of the public official and is specifically presented due to i) fear, ii) bureaucracy and iii) ignorance. In addition, primarily due to the lack of citizen awareness.
This is clearly shown when the head of the state division states: "(…) Why should I have to instruct an official to investigate how many telegraphic concessions were granted in 1940? (…)".
On the other hand, the 2011 Annual Report, Law No. 27806, the Law of Transparency and Access to Public Information. Requests and Requests for Information Served and Not Served by Public Administration Entities, presented by the Coordination Secretary of the Presidency of the Council of Ministers; indicates two main aspects generated by: i) the interested party, and ii) the entity.
XII. Right of access to information and knowledge management
It should be seen that in the 21st century, access to efficient public information that is not linked to knowledge management is not conceived, becoming one of the essential pillars of electronic government.
Thus, it is necessary that the electronic government in the right to information guarantees: "i) access to content and / or information from the public sector, ii) citizen participation for an electronic democracy and iii) provision of electronic public services."
XIII. About the 2011 annual report of the presidency of the council of ministers
The Coordination Secretariat of the Presidency of the Council of Ministers is the line unit in charge of carrying out this work since 2005 (…).
For the qualification of the reports of requests attended and not attended, sent by public entities, “(…) the categories“ GOOD ”,“ REGULAR ”AND DEFICIENT” have been established by reference to consider the reports submitted by public entities.
From a generic look at the aforementioned report, presented to the Congress of the Republic in 2011, we can refer that the compliance of the entities to grant public information yielded a worrying percentage of 30.66.
XIV. As a colophon
Transparency becomes a basilar factor to fight corruption. Thus, we apostrophied him by resorting to the legend of Greek mythology: Hercules and Caco, in which all terrified by the killings and robberies of Caco, the first decided to fight with him, but in the light of day and defeated him. So, if we unify transparency in daylight, with it we can overcome the vicissitudes of the culture of polarized moons that still refuses to disappear.
Transparency constitutes a budget for access to public information. In this sense, for there to be access to public information, there must previously be transparency. This is corroborated in the order of appearance in humanity.
With regard to the right of access to public information, it is appropriate to point out that not only its constitutionalization and legality ensure its validity, because: "constitutional jurisprudence is an element of undoubted importance to guarantee its effectiveness and thereby contribute to the paradigm shift from the culture of secrecy and opacity, which has been the common denominator in Peruvian reality, towards a culture of transparency and visibility ”.
It becomes imperative to mention that: "The development of Electronic Government improves and brings closer the relationship of the citizen with the State, and facilitates transparency and citizen participation." In this sense, ROMERO SILVERA, quoting MENDEL, affirms: “(…) The advertising that historically supported the republican systems of government is no longer enough, but now we are talking about transparency, which is much more than advertising”.
There is a deficiency of knowledge and citizen culture in the aspect of active participation in the fight for the full and unrestricted effectiveness of the enforcement of the rights to transparency, access to public information and accountability.
The right of access to public information, in addition to guaranteeing the exercise of other rights, favors the manifestation of public value; that is, it facilitates the shaping of public management in favor of the population.
XV. Suggestions
The present issue in comment must be carried out with great zeal and professionalism (it is not only a matter of aggravating the penalties for the official who breaches the transparency law), in order to eventually avoid at all costs what happened in Italy, that is, the mani pulite, in which the judicial policy implemented to combat corruption suffered such a degree of overexposure and mediatization by the magistracy that it ended up denaturing it.
Thus, it is necessary to highlight that on 04/25/12, the Peruvian State Ombudsman, Dr. Eduardo Vega, proposed: “the creation of an autonomous national authority, to guarantee the oversight of the rules of transparency and access to public information, as well as the timely solution of conflicts between citizens and the State (…) ”.
Said compliance authority basically showed efficacy in Chile and Mexico. The IPYS indicates that the initiative must be complemented with other obligations that the State has failed to fulfill in this matter (…). The aforementioned is justified in the need to create it, while a specialized entity has not yet been created. However, countries like Mexico and Chile already have this entity.
In this regard, it is necessary to limit what was indicated by the Catalan Ombudsman (who, in addition, to: Ombudsman for Torts, Ombudsman, is the Valencian name that the Ombudsman receives in that community): “the models that offers compared law are diverse and range from the constitution of a specific authority on the matter to the assignment of this function to an existing body, which may be the Ombudsman.
Exempli gratia of said assumption, "it is worth noting the cases of New Zealand and Peru, which have assigned the functions of guardianship of compliance with the Law on Access to Information to the Ombudsman."
On the other hand, ““ (…) a “commitment to transparency” is essential to guarantee good governance in the country. At the same time, it is necessary to have informed citizens who know the scope of the law, since the best defender of their rights is the one who knows them. ”
For those who intend to exercise their right to public information, it is suggested: "i) to know, ii) to detail, iii) to substantiate, iv) to conceal, v) to appear and vi) to litigate".
The issue of the rights to transparency, access to public information and accountability, merits an urgent revision that cannot be postponed, but is focused on the effective implementation thereof (in light of what is legalized by the Ten Principles of the Right to Access to Public Information, stipulated in the American Convention on Human Rights), which in the mere legislative amendment aimed at improving the due administrative process, that is, deadlines, instances, among others, that in its case, ends up annulling them.
In this sense, the aforementioned review should be tuned, in what is pertinent (that is, pending), to what is stipulated in the guiding principles for a law on access to public information, established by the Convention on Access to Public Documents, making the necessary qualification that must be contained in the spirit of the public information system (and not in documents), determined by the Inter-American Court of Human Rights, in the Claude Reyes et al. case, against Chile.
It is essential to implement a National Information System, which consists of three components: i) Statistical, ii) Sectorial, and iii) Territorial, which, in turn, promotes an information management model to make public policy actions transparent. of citizenship.
We consider that this issue involves the essential need to improve the administration or management of information held by the public sector, with a view to ordering and systematizing it and making the location and delivery of the requested information more viable and timely.
In addition, there is an urgent need to prepare a list of principles or guidelines, with the purpose of adapting the attention to requests for public information, or, where appropriate, adapting to foreign experience standards, for example, we have “(…) Transparency International Spain manifests the need to that the different Spanish political parties (…) assume the Principles and measures that are included in the following Decalogue of Transparency and Integrity ”.
On the other hand, although it may seem unorthodox, we consider that the constant refusal of the public official to grant public information is also due to a rather human nature of refusal to accept and show the truth, indeed, to affirm the denial and ignore the statement. This is explained in the apparently inexplicable way in which it is configured in the terminology not only of the Spanish language. Therein lies the urgent need for the permanent promotion of the inculcation of values in the population.
It is necessary to assertively assume the fact of the absence of a transparent culture and to promote dialogue spaces for the exchange of experiences with a view to achieving a development of the theme of the right of access to information. In this sense, we have to greet the Peruvian participation in the IV Meeting of the Network of Guarantor and Promotion Institutions of Transparency and Access to Public Information (RTA) and in the IX National Transparency Week organized by the Federal Institute of Access to the Information of Mexico (IFAI), in the period between 17-21 / 09/12.
In addition, it is timely to implement policies to promote and promote transparency in the public administration, whether via incentives, contests, awards, among others, not only have an incidence of economic or patrimonial improvement, but also, of an academic and professional nature, through the granting of full or integral scholarships, as well as the respective congratulations to be included in the personal file, and where appropriate, the respective promotion.
XVI. Bibliographic references
- ABAD YUPANQUI, Samuel B. We all have the right to know: how to access public information. Online: retrieved on 10/11/12 from Knowledge Sharing:.ALBA, Kathy. Ten years without being fulfilled: transparency and access to public information law. Online: retrieved on 12/1012 from Spaciolibre: http://www.spaciolibre.net/index.php/diez-anos-sin-cumplirse-ley-de-transparencia-y-acceso-a-la-informacion- publishes /.ALMEIDA, Daniel. The Right to Information in Latin America: Legal Comparison. In: Memories of the forum, transparency and access to public information in Ecuador. Challenges and analysis 5 years after the LOTAIP was enacted. Quito, 2009, pp. 14-15. Online: retrieved on 10/13/12 from the Ecuadorian Center for Environmental Law:.ÁLVAREZ, Ignacio J. Special study on the right to information. Washington DC 2007, p.06. Online: retrieved on 10/11/12 from the Inter-American Commission on Human Rights: http://www.cidh.oas.org/relatoria/section/Special Study on the right of Access to Information.pdf. BASTONS, Jorge Luis and ELIADES, Analía. The right of access to public information in the Ibero-American sphere. Spain, 2007. Online: retrieved on 10/11/12 from Legal News: BOTERO MARINO, Catalina. The right of access to public information in the Americas. Inter-American standards and comparison of legal frameworks. 2012, p. 01. Online: retrieved on 12/10/12 from the Organization of American States: http://www.oas.org/es/cidh/expresion/docs/publicaciones/CASTRO CRUZATT. Karin. Access to public information: notes on its development in Peru in light of the jurisprudence of the constitutional court.Workbook No. 6, from the Pontificia Universidad Católica del Perú. Lima, 2008, p. 03. Online: retrieved on 12/1012 from the PUCP Department:.CASTRO LEYVA, Daniel. Evolution of Transparency and the Right to Information, and essential policies for citizen participation. P. 01. Online: retrieved on 12/1012 from Transparencia Puebla:.CENDEJAS JAÚREGUI, Mariana. Brief analysis of the new transparency and access to public information law of the federal district. Online: retrieved on 10/11/12 from Law Review of the National Autonomous University of Mexico: www.juridicas.unam.mx/publica/rev/…/cmt6.htm.FERNÁNDEZ, Lucía. Transparency and access to public information. In Palestra, Public Affairs Portal of the Pontifical Catholic University of Peru. Lima, p. 01. Online:retrieved on 12/1012 from the Press and Society Institute: http://ipys.org/sites/default/files/articulo_lucia_fernandez.pdf.GUTIÉRREZ JIMÉNEZ, Paulina. The right of access to public information. A tool for the exercise of fundamental rights. Federal District, 2008, p. 43. Online: retrieved on 12/10/12 from the Virtual Center for Learning in Transparency of the Institute for Access to Public Information and Protection of Personal Data of the Federal District: /retaip/documentos/material_apoyo/ensayo/Ensayo7.pdf. JARAMILLO PAZ Y MIIÑO, Fidel. The lack of access to public information as an obstacle to the litigation of social rights. In: VV. AA. The social rights of access to information to justiciability. Quito, 2007, pp. 159-160. Online: retrieved on 10/11/12 from the Institute of the Common Good:.MARTÍNEZ,Patricia. Transparency and Access to Information as a State planning policy. In: Memories of the forum, transparency and access to public information in Ecuador. Challenges and analysis 5 years after the LOTAIP was enacted. Quito, 2009, pp. 12-14. Online: retrieved on 10/13/12 from the Ecuadorian Center for Environmental Law:.REUSSER MONSÁLVEZ, Carlos. Chile and the right of access to information. Notes on practical problems and knowledge management. In: VV. AA. The right of access to public information. Madrid, 2008, p. 180. Online: retrieved on 10/11/12 from http://eprints.ucm.es/8946/1/MANUEL_SANCHEZ_DER_ACCESO_V14_2.pdf.ROMERO SILVERA, Graciela. Legal implications of the development of the right of access to public information in the framework of the right to freedom of expression and human rights.Volume 26, Article 7. 2010, p. 161. Online: retrieved on 10/13/12 from American University International Law Review: http: //digitalcommons.wcl.american.edu.S/a. Scope and content of the right of access to public information: considerations of the Catalan Ombudsman. In: Extraordinary report. Access to public information. Barcelona, 2012, p. 30. Online: retrieved on 10/13/12 from Síndic de Greuges de Catalunya: http://www.sindic.cat/site/unitFiles/3151/Informe access informacion publica.pdf.S / a. The right of access to public information. Regulations, jurisprudence and work of the ombudsman. Defensive Documents Series. Document Nº 9. Lima, 2009, pp. 14-18.S / a. Annual report 2011, Law No. 27806, Law of transparency and access to public information.Requests and requests for information attended and not attended by public administration entities. 2011, p. 02. Online: retrieved on 10/11/12 from http://www.pcm.gob.pe/InformacionGral/sc/2011/informe-transparencia-2011.pdf.S/a. Timeline in transparency. In: Reprint of the Official Newspaper of the State of Nuevo León. 2008, p. 75. Online: recovered on 12/1012 of Nuevo León:.S / a. Reference manual on access to public information for the defense of the people. Lima, 2011, p. 49.S / a. Notes on access to information and transparency the freedom of information act of the United States and the federal law of transparency and access to public government information of Mexico. 2009, p. 03. Online: retrieved on 12/1012 from the Spanish Association for Documentation and Information: http: //www.sedic.en / FOIA-Informe-completo.pdf.S / a. Transparency, Access to Public Information and Accountability. Basic concepts and methodological proposal. Ombudsman. Lima, 2011, p. 29.SEPÚLVEDA TORO, María Alejandra. Chile: honesty, transparency and access to public information for quality management. In: Central American Journal of Public Administration, San José, 2009, p. 319. Online: retrieved on 10/13/12 from the Library of the Central American Institute of Public Administration: http://biblioteca.icap.ac.cr/rcap/56_57/indice.pdf.TORRES MANRIQUE, Jorge Isaac. Basilar budgets and new perspectives on the so essential, as quasi unanimously delayed, public value. In: Magazine of the Ibero-American Network of Experts in Public Management. Spain. 2010, No. 7, p. 23. Online:retrieved on 10/13/12 from Expert Networks of the Distance Education Center Foundation for Economic and Technological Development: http://issuu.com/redesdeexpertos_ceddet/docs/n__7_revista_digital__de_la_rei_en_g.publica.TORRES MANRIQUE, Jorge Isaac. Procedural recklessness and malice to the bench: chronicle of two legal blots that seek to consolidate. In: Civil Procedure Review Magazine. Germany, 2010, p. 130. Online: retrieved on 10/13/12 from Civil Procedure Review: http://www.civilprocedurereview.com.In: Civil Procedure Review Magazine. Germany, 2010, p. 130. Online: retrieved on 10/13/12 from Civil Procedure Review: http://www.civilprocedurereview.com.In: Civil Procedure Review Magazine. Germany, 2010, p. 130. Online: retrieved on 10/13/12 from Civil Procedure Review:
