1543-D-2016
The Senate and Chamber of Deputies ...
LAW OF ACCESS TO THE
PUBLIC INFORMATION
TITLE I
General disposition
Chapter I
PRINCIPLES AND SCOPE
ARTICLE 1 .-
Object
Every natural or legal person, public or private, has the right to search, access, request, receive, copy, analyze, reuse and redistribute information that is in the possession, custody or under the control of any public authority or any of the private organizations reached by this law, without the need to invoke a subjective right or interest, or have legal sponsorship.
The obliged subjects must, in turn, provide the information in the terms provided by this law.
ARTICLE 2º.-
Definition
For the purposes of this law, public information is understood to be all data that consists of written documents, photographs, recordings, magnetic media, digital media or in any other format and that has been or should be generated or obtained by the aforementioned obligated parties. in article 4 of this law.
This definition includes any evidence that works or should act in the power or under the control of said subjects or whose production has been financed totally or partially with public funds, or that serves as the basis for a decision of an administrative nature, such as meeting minutes officers.
ARTICLE 3º.-
Beginning
This law is based on the following principles:
a) Presumption of publicity: all information held by the State is presumed public.
b) Transparency and maximum disclosure: all the information in the possession, custody or under the control of the obligated subject will be accessible to all people. Access to public information can only be limited when any of the exceptions provided for in this law concur, in accordance with the needs of the democratic and republican society, proportional to the interest that justifies them.
c) Informalism: the rules of the procedure to access the information must facilitate the exercise of the right and its non-observance can never constitute an obstacle to it. The obliged subjects will not be able to base the rejection of the request for information on the breach of formal requirements or procedural rules.
d) Maximum access: the information will be published in a complete way, with the highest level of disaggregation possible and via the largest number of available means. Openness: the information will be accessible in open electronic formats, which facilitate its processing by automatic means that allow its reuse or redistribution by third parties.
e) Dissociation: in that case in which part of the information falls within the exceptions specifically established by this law, the non-excepted information must be published in a version of the document that crosses out, hides or dissociates those parts subject to the exception. . Non-discrimination: information must be provided to all persons who request it, on equal terms, excluding any form of discrimination and without requiring an expression of cause or reason for the request.
f) Maximum speed: the information must be published with the maximum speed and in times compatible with the preservation of its value.
g) Free: access to information will be free, without prejudice to the provisions of this law.
h) Control: compliance with the regulations governing the right of access to information will be subject to permanent supervision. Both the resolutions that deny requests for access to information, as well as the silence of the required obligated subject, the ambiguity or the inaccuracy of her response, may be appealed to another body.
i) Responsibility: the breach of the obligations that this law imposes will give rise to the corresponding disciplinary or penal sanctions.
j) In dubio pro petitor: the interpretation of the provisions of this law or any regulation of the right of access to information must be carried out, in case of doubt, always in favor of the greater validity and scope of the right to information.
ARTICLE 4º.-
obligors
They are subjects bound by the provisions of this law:
a) The agencies or entities of the central, decentralized administration and state entities in general.
b) The Legislative Power and the organisms that operate within its scope.
c) The Judiciary.
d) The Public Ministry.
e) The other bodies expressly created by the National Constitution.
f) State companies and companies, including public limited companies with majority state participation, mixed economy companies and all other business organizations in which the national State has a majority participation in capital or in the formation of corporate decisions.
g) Non-state public entities in the exercise of public functions.
h) Business associations, trade unions, political parties and private entities or organizations that are granted subsidies or contributions created by the national State, regarding the use or activities carried out with said contributions or subsidies.
i) The institutions or funds whose administration, storage or conservation is in charge of the national State.
j) Private companies that have been granted, by permit, license, concession or any other legal form, the provision of a public service or the exploitation of a property in the public domain.
k) Trusts that are constituted totally or partially with resources or assets of the National State.
The description of this law can in no case be interpreted as exclusion of any sector from state activity.
ARTICLE 5º.-
Responsible authority
When a request for information is addressed to any of the obligated subjects mentioned in subparagraphs a), b), c), d), e) of article 4, the official who will be directly responsible for the care and evacuation of the requests for information will be one that:
a) You can have effective knowledge of the information under your control.
b) Have sufficient power to enforce the provisions of this law.
c) Be subject to the ordinary sanctions regime established for the rank in which the official is dressed. In the event that no official meets these three requirements, the official who meets the requirements of paragraphs a) and b) will be responsible.
TITLE II
From Access to Information
Chapter I
INFORMATION REQUEST
ARTICLE 6º.-
Application
The request for information may be submitted to the reporting entity from whom the information is required or to the relevant enforcement authority; in writing, electronically, verbally or by any other similar means, without being subject to any formality. It will not be necessary to state the purpose or reason for the request, nor the identification of the applicant.
The applicant for the information must be provided with the file number or proof corresponding to his order.
ARTICLE 7º.-
Deadlines
The required subject must respond to the request for information within a period of no more than ten (10) business days. The term may be exceptionally extended for another ten (10) business days, if there are special circumstances that justify the impossibility of delivering the requested information on time. In that case, the required obligor must notify the reasoned decision to use the extension and explain what are the special circumstances that motivated it.
Special circumstances will be considered:
a) The need to search and gather the requested information in other establishments that are physically separated from the office in charge of processing the request.
b) The need to appropriately search, collect and examine a large number of reports, different and independent of each other, that are requested in a single order.
c) The need to consult another body that may have an important interest in the decision regarding the order.
If the required obligated subject argues, in a reasonable and well-founded manner, that he is not responsible for satisfying the request, he must forward the request to the relevant enforcement authority of this law within a period not exceeding two (2) days. skillful. Both in the case provided for in the preceding paragraph and in the case in which the request is submitted to the relevant Enforcement Authority, it shall, within a period of no more than two (2) business days, identify and forward the request to the subject obligated to have in their possession or under their control the requested information.
The relevant enforcement authority will notify the applicant to which obligated subject their request was derived, the date of forwarding and, if possible, the date of receipt of the request by the latter. The obligated subject to whom the request for information has been forwarded must respond to it within a period of no more than ten (10) business days, counted from the receipt of the request sent by the relevant Application Authority. In the event that the period of ten (10) days puts at risk the usefulness and effectiveness of the information requested, the obligated subject must respond within a period shorter than that established by this law. The applicant must inform the obligated subject and prove the circumstances that make a response necessary in a shorter period of time.
ARTICLE 8º.-
Reply. Form and costs
The requested information will be delivered in the form and by the means that the applicant has indicated. The applicant will only pay the cost of reproducing the information he requires, which may not exceed the value of the reproduction of the material and, eventually, the cost of shipping, if requested. The request does not imply the obligation of the obligated subject to create or produce information that it does not have at the time the order is placed, unless the State is legally obliged to produce it under internal regulations or international treaties.
ARTICLE 9º.-
Denial
The obligated subject may only refuse to provide the information, by reasoned act, if it is verified that such information is included in any of the exceptions specifically provided for in this law. The silence of the required obligor, the ambiguity or the inaccuracy of their response constitute an unjustified refusal to provide the requested information. The refusal will enable the routes contemplated in articles 18 and 19 of this law. Both the resolutions that grant the information and those that deny it must indicate that, if the applicant is not satisfied with the response that has been provided, he may claim through the channels provided for in articles 18 and 19 of this law. Such notification must include the textual reproduction of those articles.
ARTICLE 10º.-
Liability
The officials who fail to comply with the duties imposed by this law will be liable to the disciplinary sanctions established in this article, without prejudice to the other corresponding responsibilities.
The behaviors that are considered disciplinary offenses and their sanctions are as follows:
a) Failure to respond to a request for information and denial of access or delivery of information, without basis in the exceptions provided for in this law, will be sanctioned with suspension without enjoyment of assets of between ten (10) and thirty (30 ) days.
b) The delivery or making available of the information in an incomplete or defective form or with an omission of the forms, the terms or the modalities established in this law and its regulations, will be sanctioned with suspension without enjoyment of assets of five (5 ) and twenty-five (25) days.
c) Failure to comply with the resolutions by which the enforcement authority resolves the administrative appeal resources will be sanctioned with dismissal.
d) Failure to comply with other requirements issued by the enforcement authority will be sanctioned with suspension without pay for between ten (10) and thirty (30) days. When the application of a new suspension corresponds and the accumulation of forty (40) or more days of suspension for the official will result, the dismissal will be applied by reason of recidivism.
The sanctions will be applied by the competent authorities and in accordance with the procedures of the regime to which the official is subject. The commission of any of the preceding infractions, invoked with fault or negligence, will be sanctioned with a penalty of up to 1/3 of that provided for the corresponding infraction. The requestor of the information, the interested third parties and the enforcement authority may act by urging summary proceedings.
The head of the Cabinet of Ministers, the ministers of the Executive Power, the judges of the Nation, the national legislators and the magistrates of the Public Ministry, who are subject to the responsibilities provided in the National Constitution, are excluded from the disciplinary regime of this article. the respective organic norms and the Penal Code of the Nation. The enforcement authorities will regulate the procedure in their respective area, which must guarantee the full exercise of the right of defense. All sanctions applied to obligated subjects will be permanently published on the website of the relevant enforcement authority.
The statute of limitations to apply all administrative sanctions will be two (2) years from the commission of the offense, and will only be interrupted by the commission of a new offense or the initiation of the summary. The resolution imposing the sanction will be challenged only by a direct appeal to the Chamber with jurisdiction in the administrative contentious of the place of commission of the offense. In the case of obligated subjects whose governing bodies or legal representatives are not public officials, those responsible for any of the types of conduct will be subject to a fine of between one (1) and twenty (20) minimum vital wages and mobiles. The fine will be judicially imposed at the request of the applicant and its amount will be graduated in accordance with the standards mentioned in the 2nd paragraph of this article and with the financial capacity of the subject.
Chapter II
OF ACTIVE TRANSPARENCY
ARTICLE 11º.-
Instrumentation
The obliged subjects referred to in article 4 subsections a), b), c), d) and e) must publish on their respective Internet sites, in an accessible, free, updated and actionable way by automatic means, in the cases that corresponds, the following information:
a) Its organic structure, functions and powers.
b) The powers, functions and powers of each of its internal units or organs.
c) The regulatory framework that is applicable to them.
d) The list of authorities and personnel that perform functions permanently, temporarily or through a contractual relationship, including consultants, interns and personnel of projects financed by multilateral organizations, detailing their respective functions, position in the ranks.
e) The salary scales, including all the components and subcomponents of the total salary, corresponding to all categories of employees, officials, consultants, interns and contractors.
f) Any act or resolution, of a general or particular nature, especially the norms that establish benefits for the general public or for a sector, and the minutes in which the deliberation of a collegiate body, when this occurs, as well as the shorthand version and the legal and technical opinions produced before the decision and that have served as support or antecedent.
g) The reports of the votes of each member in all the decision processes of the collegiate bodies.
h) The information on the assigned budget, its modifications during the year and the budget execution status, up to the last level of disaggregation in which they are processed.
i) The complete list of tenders, tenders, contracts, public works and acquisitions of goods and services, specifying their objectives, characteristics, amounts and suppliers, as well as the partners and main shareholders of the companies or supplier companies, in their case.
j) Any transfer of public funds and their beneficiaries, including any financial contribution delivered to natural or legal persons, public or private.
k) The reports of audits or evaluations, internal or external, carried out ex ante, during or ex post, referring to the organization itself, its programs, projects and activities.
l) The permits or authorizations granted, specifying their beneficiaries.
m) Any mechanism or procedure through which the public can present petitions or in any other way influence the formulation of the policy or the exercise of the powers of the obligated body.
n) An index of procedures and procedures that are carried out before the organization, as well as the requirements and allocation criteria to access benefits.
o) An index of the information in possession, custody or under the control of the obligated subject, including the list of those documents classified as secret or reserved and, in the latter case, the name of the document and the individualization of the act or resolution in the for the record.
p) An electronic record of requests for information and responses, containing a list of requests received and information disclosed.
q) The definitive sentences or equivalent resolutions, in all the judicial instances, as well as the opinions of the Public Ministry, with omission of the names, in the cases in which it is not appropriate to reveal them by provision of other laws or international conventions.
The enforcement authorities will be responsible for defining the relevant publication schemes, which must be implemented on a mandatory basis by the reporting entities specified in this article. Notwithstanding the foregoing, free and open access is established via the Internet to all sections of the Official Gazette of the Argentine Republic, during the administrative business day of its graphic publication.
ARTICLE 12º.-
Annual reporting
Before March 1 of each year, the obligated subjects referred to in Article 4 subsections a), b), c) d) and e) must submit to the relevant enforcement authority a report corresponding to the previous calendar year.
Said report shall include:
a) The number of requests for information that were presented to it and the object of decade one of them.
b) The number of requests answered, the pending ones and the processing time of the same.
c) The number of resolutions that would have denied requests for information and the grounds for each of them.
d) The number of legal actions initiated in accordance with this law and, where appropriate, its result.
e) Information regarding disciplinary sanctions.
f) The measures adopted for the best compliance with this law.
Chapter III
EXCEPTIONS
ARTICLE 13º.-
Exceptions to the duty to inform
The obliged subjects included in this law may only be exempted from providing the required information, in any of the following cases:
a) When it is information classified as reserved or secret by express provision of a Law of the National Congress.
b) When it concerns information expressly classified as reserved by decree of the President of the Nation, for reasons of defense or foreign policy. The reserve in no case may reach the information necessary to evaluate the definition of the security, defense and foreign relations policies of the Nation.
c) When a law of the National Congress declares that some type of information related to security, defense or foreign policy is classified as reserved and inaccessible to the public or establishes a special procedure to access it. The reserve in no case may reach the information necessary to evaluate the definition of the security, defense and foreign relations policies of the Nation.
d) When it comes to information that could jeopardize the proper functioning of the financial or banking system.
e) In the case of industrial, commercial, financial, scientific, technical or technological secrets belonging to the obligated subject and that have a substantial value, or it is reasonable to expect that it would have it, and whose disclosure could harm the level of competitiveness or harm interests of the obligated subject.
f) In the case of industrial, financial, commercial, technical or technological scientific secrets supplied to a state entity or body in the confidence that they would not be disclosed. This exception will also be understood to apply when the disclosure of the information, without foundation in the defense of the public interest, which could reasonably cause significant financial losses or gains, the loss of competitive positions or interference in the conclusion or execution of contracts. But when the interest related to health, public safety and the protection of the environment is clearly superior in importance to the private interests of third parties, the information must be disclosed.
g) When it comes to information prepared by the administration bodies dedicated to regulating or supervising financial institutions or prepared by third parties to be used by those organizations and which refer to situation examinations, evaluation of their operating system or operating condition .
h) When it comes to information held by the Financial Information Unit in charge of the analysis, treatment and transmission of information aimed at the prevention and investigation of the legitimization of assets from illicit acts, or the agency or entity that will eventually replace it or absorb its functions.
i) In the case of information prepared by legal advisers or attorneys from the administration, the publicity of which may reveal the strategy to be adopted in the defense or processing of a judicial case or disclose the investigative techniques or procedures; or when the information deprives a person of the full right to a fair trial.
j) In the case of information referring to personal data of a sensitive nature, in the terms of Law 25.326, the publicity of which constitutes a violation of the right to privacy, except with the express consent of the person to whom it refers the information requested.
k) When the disclosure could cause a danger to the life or safety of a person.
l) Any information protected by professional secrecy.
m) In the case of information of a judicial nature whose disclosure is prohibited by other laws or by commitments made by the Argentine Republic in international conventions.
Public authorities can refuse access to information only under the preceding circumstances, when the restriction is legitimate and strictly necessary in a democratic society.
ARTICLE 14º.-
Partially reserved information
In the event that there is a document that contains reserved information included in any of the exceptions contained in the previous article, the obligated subjects must allow access to the part of the document not reached by the exceptions. Likewise, it should be indicated that information has been omitted, as it is contemplated in one of the exceptions, as well as the extent and location of the omitted information, unless this data violates the interest protected by the exception.
ARTICLE 15º.-
Classification requirements
The decision that classifies certain information as reserved must indicate:
a) The identity and position of the person who adopts the classification.
b) The organism or source that produced the information.
c) The date or event established for public access or the date corresponding to the ten (10) years of the original classification.
d) The reasons underlying the classification.
e) The pieces of information that are subject to classification and those that are available for public access.
ARTICLE 16º.-
Duration of the classification
The classification of the information as reserved will last until the date or until the moment in which the event indicated in the rule that established the reservation occurs. The duration of the classification of the information as reserved may not be more than ten (10) years. Once this period has expired, and even when the date indicated is later or the event that ends the reservation has not occurred, the information will be publicly accessible under the terms of this law.
In the event that the regulation that established the reservation did not indicate a specific date or event whose occurrence ends, the information will be publicly available three (3) years from the date of the decision that classified it as reserved. Even if the deadline set in the previous paragraph has not been met, the information classified as reserved will be accessible to the public when the circumstances that founded its classification as secret cease, or there is a superior public interest that justifies its opening to the public.
As long as the requirements of this law for the classification of information are met, the classification may be extended or a specific information may be reclassified for two successive periods, each of which may not exceed the term of ten (10) years. No information may be kept as reserved for more than thirty years from its original classification, except for that which had been provided by a diplomatic source. In this case, the classification of the information as reserved may not exceed fifty (50) years. The information cannot be reclassified as reserved if it has already been opened to public access.
ARTICLE 17º.-
Disclosure of classified information to the public
Within twelve (12) months of the entry into force of this law, all information classified as reserved will be immediately and freely available to the public, if the classification is more than ten (10) years old, except for that which is expressly reclassified .
The information classified as reserved will be accessible to the public even if the term established in the previous paragraph has not been met when the circumstances that founded its classification as secret in the terms of the provisions of article 13 of this law or not concur. a higher public interest that justifies its opening to the public
Chapter IV
ADMINISTRATIVE APPEAL. JUDICIAL ACTION
ARTICLE 18º.-
Administrative appeal
The requestor of the information may, within a term of thirty (30) business days counted from the notification of the resolution that denied the request or from the verification of any other breach of the provisions of this law, present a appeal to the corresponding enforcement authority. When the administrative appeal is intended to claim compliance with the rules on active transparency, it may be filed at any time.
The lack of response to the request for information by the obligated subject or the ambiguous, inaccurate or incomplete response will be interpreted as unjustified refusal of the requested information. The enforcement authority may mediate between the applicant and the obligated subject in order to achieve the publicity of the information, without the need to exhaust the appeal process. The applicant may refuse to participate in the mediation or end it at any time. Mediation will not suspend the term of thirty (30) business days provided in the following paragraph.
The enforcement authority shall decide, within a term of thirty (30) business days from the receipt of the appeal:
a) Reject the appeal.
b) Require the obligated subject to take the necessary measures to comply with the obligations imposed by this law.
The decision, the applicant, the obligated subject and any interested party will be notified. If the resolution is not favorable to the petition of the applicant, the notification of the rejection of the administrative appeal must inform about the right to act judicially and the terms foreseen for it.
ARTICLE 19º.-
Legal action for access to information
Any person, natural or legal, public or private, whose right of access to public information is injured, restricted, altered or threatened by breaches of this law, may file the action for access to information before the first-class courts. instance with competence in federal administrative litigation.
The action of access to information will be processed in accordance with the rules of the summary procedure of the Civil and Commercial Procedural Code of the Nation, in everything that is not modified by this law. It will not be necessary to exhaust the administrative appeal instance established by this law. In the event that an access to information action is filed pending the resolution of the administrative appeal, said appeal will be considered withdrawn.
The action of access to information must be filed within a period not exceeding thirty (30) business days counted, as appropriate, from:
a) Notification of the resolution that has denied the request or of the expiration of the deadlines established for the response to the request, or after verification of any other breach of the provisions of this law.
b) The notification of the resolution that rejects the administrative appeal provided for in article 18 or the expiration of the term established for the issuance of the resolution of the administrative appeal, in accordance with the provisions of this law. When the access to information action is intended to demand compliance with the rules on active transparency, it may be filed at any time.
The judicial action for access to information does not prohibit or prevent the filing of any other judicial action. The presenter must inform if he / she has initiated another action with a similar object and, where appropriate, cover, file number and intervening court.
ARTICLE 20º.-
Burden of proof
The burden of proof of the existence of one of the exceptions provided for in this law must fall on the public authority.
In particular, the authority must establish:
a) That the exception is legitimate and strictly necessary in a democratic society.
b) That the disclosure of the information could cause substantial damage to an interest protected by this law.
c) That the probability and degree of said damage is greater than the public interest in the disclosure of the information.
Título III
Application Authorities
Chapter I
AUTHORITY OF APPLICATION OF
NATIONAL EXECUTIVE POWER
ARTICLE 21º.-
The Creation
Create the Commission for Access to Public Information (CAIP), as a decentralized body within the scope of the Executive Branch, which will act with full functional autonomy and financial autarky.
The Access to Public Information Commission shall be the enforcement authority of this law in the national public administration sphere, with competence to regulate, control and demand compliance with its provisions, and provide for the promotion of transparency and protection. of the right of access to public information.
The directors of the Commission for Access to Public Information will be appointed by the national Executive Power with the agreement of both Houses of the National Congress.
ARTICLE 22º.-
Governing body of the Commission on Access to Public Information
The government and administration of the Access to Public Information Commission will be in charge of a board of directors made up of one (1) president and (4) members. The board will form a quorum with half plus one of its members and its resolutions will be adopted by simple majority. In the event of a tie, the President will have a double vote. The chairmanship of the board will be held on a rotating basis by its members, on an annual basis.
ARTICLE 23º.-
Rank, remuneration and duration in office
The members of the board of the Commission on Access to Public Information will have rank and remuneration equivalent to that of the Secretary of State, and will last five (5) years in their positions with the possibility of being re-elected only once.
ARTICLE 24º.-
Requirements and incompatibilities
To be appointed to the board of the Commission for Access to Public Information, it is required to be an Argentine citizen over twenty-five (25) years old, possess a university degree, and not have held elective or equivalent positions or higher than the secretary of the national Executive Power in the two (2) years prior to the application. Backgrounds must be presented that prove suitability for the exercise of the function and vocation for the defense of the rights guaranteed in this law.
The exercise of the function in the Commission of Access to Public Information requires exclusive dedication and is incompatible with any other public or private activity, except for part-time teaching, and party political activity is also prohibited for the duration of the exercise of the function.
ARTICLE 25º.-
Dismissal and removal of members of the committee on access to public information
The members of the board of the commission on access to public information may cease their functions for:
1. Removal based on poor performance of his post, or health reasons, when the condition makes the exercise of the function impossible, ordered by the vote of the absolute majority of all the members of one of the Chambers, upon instruction from summary that guarantees the right of defense.
2. Waiver.
3. Firm conviction for intentional crime.
Once a vacancy has been produced in the directory of the Commission for Access to Public Information, the appointment process indicated in Article 24 will take place and must begin within a maximum period of thirty (30) days.
ARTICLE 26º.-
Competences
The powers of the Commission on Access to Public Information are: a) To approve the Regulation on Access to Public Information applicable to all the subjects that correspond within the scope of its competence; b) Issue general instructions for compliance with regulations on transparency and access to public information; c) Require the obligated subjects to modify or adapt their organization, procedures and customer service systems to the applicable regulations; d) Make recommendations for better compliance with regulations, greater transparency in management and the full exercise of the right of access to public information; e) Request from the obligated subjects files, reports, documents, antecedents and any other element that it deems useful for the purposes of exercising its powers; f) To approve obligatory regulations that establish guides, standards, procedures or modalities on treatment, collection, storage, dissemination, delivery, transportation or archiving of public information; g) Resolve the administrative appeal remedies filed by those requesting information against acts that expressly or tacitly deny it, or partially deliver it, and those aimed at achieving compliance with the rules of active transparency; h) Supervise ex officio compliance with all regulatory provisions on active transparency and access to information; i) Receive and process complaints from individuals; j) Require reports or explanations from reporting entities related to the complaints made; k) Present an annual report to the National Congress giving an account of the fulfillment of the obligations arising from this law. The report must be sent before June 1 of each year to both Houses, and must include the details of the actions taken, the resolutions adopted, the sanctions applied, the modifications made to the regulations, the recommendations made and the difficulties observed for best compliance herewith; l) Carry out, directly or through third parties, training activities for public officials on transparency and access to information; m) Carry out dissemination and information activities to the public on matters within its competence; n) Prepare and publish statistics and reports on transparency and access to public information and on compliance with this law; o) Enter into cooperation agreements with public or private organizations, national or foreign, within the scope of its competence, and enter into the contracts that are necessary for the fulfillment of its functions; p) Propose policies, plans, programs or draft laws in all matters related to its competence; q) Approve its internal regulations and its organic structure.
ARTICLE 27º.-
Transparency and Access to Information System
The Access to Public Information Commission will develop and implement a computerized system of transparency and access to information that will allow applicants and obligated entities to manage the process of formulating, receiving, monitoring and responding to requests for access to public information through through the Internet. Said system must also facilitate the discovery, search, access, analysis and reuse of the information that the obligated subjects publish in compliance with their obligations regarding active transparency.
ARTICLE 28º.-
Information Access Units
The obliged subjects will establish in their respective areas an Access to Information Unit whose mission will be to receive and manage requests for access to information, act as a liaison before the Commission for Access to Public Information, and implement the provisions on the matter. of active transparency, according to the guidelines that the Commission for Access to Public Information may provide. Said unit will be in charge of an information officer who will act as liaison before the Commission for Access to Public Information, and shall: a) Receive, manage and keep track of requests for information; b) Complete the requirements regarding active transparency; c) Provide assistance to users in the preparation of requests for information and, where appropriate, guide them on the dependencies or entities that may have the requested information; d) Promote within the entity or organization the best practices in relation to the maintenance, filing, conservation and publication of information; e) Inform and respond to the requirements of the Commission for Access to Public Information.
Chapter II
AUTHORITY OF APPLICATION IN OTHER POWERS
ARTICLE 29º.-
The Creation
The Legislative Power, the Judicial Power of the Nation by joint decision of the Council of the Magistracy and the Supreme Court of Justice of the Nation, the Public Ministry by joint decision of the Attorney General of the Nation and the General Defender of the Nation, the Defender of the People and the General Audit of the Nation, will establish in their respective areas an enforcement authority with functional autonomy within a period not exceeding ninety (90) days from the publication of this in the Official Gazette. Each enforcement authority will have the same competence set for the Committee on Access to Public Information within its scope of action.
Chapter III
PROVISIONS COMMON TO ALL APPLICATION AUTHORITIES
ARTICLE 30º.-
Designation
The enforcement authority will be formed in all cases through a public and participatory process. The records of the persons who apply must be published on the Internet pages of each power body, for a period of not less than five (5) business days, and in at least two newspapers of national circulation for two (2) days. to integrate the enforcement authority.
Citizens and civil society organizations may, within fifteen (15) business days from the last publication, submit written observations and opinions that they consider of interest to express regarding the candidates. This term will not apply to those observations based on events that have occurred or are known after their expiration. Without prejudice to the presentations that are made, within the term referred to in the previous section, opinion may be requested from relevant organizations in the professional, judicial, academic, social, political and human rights fields for the purposes of their evaluation. .
Within ten (10) days of the expiration of the period established for the presentation of observations, each power body will summon the candidates to a public interview, in which members of civil society may intervene. Those interested may ask the candidates questions. Once the public interviews have concluded, each power body will designate the members of the Enforcement Authority.
Chapter VI
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 31º.-
The State must refrain from contracting the exclusive exploitation of its documentary sources.
ARTICLE 32º.-
This law shall enter into force from the ninety (90) days of its publication in the Official Gazette.
ARTICLE 33º.-
The national Executive Power shall regulate this law within sixty (60) days from its publication in the Official Gazette.
ARTICLE 34º.-
The General Regulation of Access to Public Information for the national Executive Power established in Decree 1.172 of 2003, will continue in force until the enforcement authority is established and has the regulations that replace it.
ARTICLE 35º.-
The offices of attention to the public corresponding to the obligated subjects in article 4, subsections a), b), c), d) and e) must exhibit the obligations derived from this law, in accordance with the appropriate application authority.
ARTICLE 36º.-
The obliged subjects must publish the detailed information in article 11 "Instrumentation" within ninety (90) days from the entry into force of this law.
ARTICLE 37º.-
Until the application authority created in article 21 of this law is constituted, their functions may be exercised by the Ombudsman of the Nation in all that is compatible with their competence established in article 86 of the National Constitution.
ARTICLE 38º.-
The provinces and the City of Buenos Aires are invited to adhere to the provisions of this Law
ARTICLE 39º.
- So.-
FOUNDATIONS
Mr. president:
The purpose of this bill is to guarantee access to public information to all citizens.
The Argentine legal system recognizes access to public information as a human right. Furthermore, the effective exercise of any right requires the existence and availability of prior information that makes a true choice possible.
Therefore, the present Draft Law on Access to Public Information should have as its main objective to guarantee the possibility of seeking and receiving information as a fundamental human right.
The right of access to public information is recognized as a fundamental human right by different international declarations and treaties. Some of these international instruments, such as the American Convention on Human Rights, the Universal Declaration of Human Rights or the Covenant on Civil and Political Rights, have constitutional status (art. 75, inc. 22).
These norms contemplate the possibility of seeking and receiving information, as an essential right that allows maximizing people's autonomy and therefore guaranteeing true elections. Other declarations and human rights treaties that recognize the inalienable value of public information are also in force in the Argentine legal system. In this sense, the Convention on the Elimination of All Forms of Discrimination against Women or the Convention on the Rights of Persons with Disabilities can be mentioned as an example.
In this class of normative instruments, referred to the protection of certain rights, individuals or groups in particular, public information, disaggregated by sex, appears as a necessary tool for the adequate preparation and implementation of public policies by the States.
Access to public information is thus presented as a necessary human right also to guarantee the full validity of other fundamental rights such as health, voting, education, a healthy environment, freedom of expression or a life free of violence, among so many others.
In the specific case of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women (or Convention of Belem do Pará), for example, the need to produce information is foreseen as an integral part of the elaboration of public policies aimed at guaranteeing a life free of violence for women. Thus, this international standard establishes that “the investigation and compilation of statistics and other pertinent information on the causes, consequences and frequency of violence against women must be guaranteed, in order to evaluate the effectiveness of the measures to prevent, punish and eliminate violence against women and formulate and implement the necessary changes… ”.
On the other hand, as a tool for the exercise of fundamental rights, the possibility of accessing public information may also constitute a necessary instrument for a judicial investigation that guarantees the right to the truth as well as for the investigation of other causes of public importance or collective interest. .
For these reasons, this Draft National Law on Access to Public Information must be framed conceptually and legally in the scheme offered by international human rights law in force in Argentina. There are different aspects that allow determining and characterizing what type of information is public.
The widely accepted general principle establishes that all information that is in the power of any of the organs or powers of the State is public, except that specifically excepted in formally sanctioned legal regulations. In this regard, the Inter-American Court of Human Rights in the case «Claude Reyes vs. Chile "has indicated that" ... in a democratic society it is essential that state authorities abide by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a restricted system of exceptions. "
Public information is also considered to be information that, although not in the possession of the different organs or powers of the State, has been prepared, generated or produced with public funds. In addition, it is understood that information that is generated from the provision of a public service, the exploitation of public domain assets and all that that arises as a consequence of the execution of functions or powers proper to the State that it has delegated is public. or authorized to entities of a public or private nature.
As we will see later, through this definition of public information, it will also be possible to determine who are obligated subjects, that is, who should be and to what extent, those who provide public information. Furthermore, the scope of the word "information" should also be specified at this point.
Starting from the definition of public information that we have outlined, «information» will necessarily include from simple data that appears in any type of support (written, digital, audiovisual, etc.) to documents (bills, resolutions, technical reports, etc. .). Likewise, it will include both information already processed by the State and that which it must produce because it is the only one that has the data available for it and whenever it is legally obliged to do so. Finally, this Draft Law must provide that access to the requested information must be allowed regardless of the state in which the data and / or documents are located.
The volume of the information or the fact that it is scattered in different places, cannot constitute an obstacle to the effective exercise of the right. For these reasons, this Draft National Law on Access to Public Information must be clear about what constitutes "public information" and about what data there is an obligation to guarantee its accessibility when a person makes a request. As noted, the possibility of accessing public information constitutes a fundamental human right recognized by our legal system to everyone. This defines the active legitimation in favor of everyone and includes legal entities as a subject capable of requesting public information. In a subsidiary way, the right of access to public information is a corollary of the democratic and republican form of government.
The people do not govern by themselves, but through their representatives, but this political legal system established by our Constitution recognizes that the mandate is granted by the people to the representatives. Therefore, the information in the hands of the State is public and every person should be able to request it regardless of the reasons for the request. In addition to being essential to fully exercise other rights, this information is vital for citizen participation and the monitoring of public institutions.
For these reasons, this Draft National Law on Access to Public Information must establish a broad active legitimation, that is, recognize the capacity to exercise this human right to any natural or legal person. By virtue of the definition and wide scope of public information, the taxpayer of the information request must be par excellence the State as a whole, comprising the Executive Power, the Legislative Power and the Judicial Power.
In addition, this Draft National Law on Access to Public Information must provide as obligated subjects to those extrapolar bodies existing at the national level created by the Constitution in its articles 85 (General Audit of the Nation), 86 (Ombudsman), 114 (Council of the Magistracy) and 120 (Public Ministry). A separate paragraph deserves the situation of the provinces. Although the right of access to public information is in force throughout the territory of our country, when Argentina adopts the federal regime, they retain the power to regulate the exercise of this right at the local level.
However, in light of the so-called federal clause provided for in the American Convention on Human Rights, this Draft National Law on Access to Public Information should at least invite the provinces to adhere to the regime established by the norm. This is so as Article 28 provides that "With respect to the provisions relating to matters that fall within the jurisdiction of the entities that make up the federation, the national government must immediately take the appropriate measures, in accordance with its constitution and its laws, so that the competent authorities of said entities can adopt the provisions of the case to comply with this Convention. "
With regard to the Judiciary as an obligated subject, in recent years there have been strong jurisprudential advances in the matter that determine that access to administrative or regulatory information must not only be guaranteed, but also to information related to relevant causes. institutional.
In this sense, it is worth mentioning the experience of civil society organizations that promoted greater participation, transparency and monitoring in judicial cases of corruption and economic crime, as well as greater publicity of certain processes that have a marked public interest.
On March 30, 2010, Chamber I of the Cassation Chamber resolved that "the public nature of certain people makes them subject to greater scrutiny by society" and thus allowed them to take a look at the criminal proceedings. This advance in the jurisprudence of our country must be reflected in this Draft National Law on Access to Public Information.
Therefore, with respect to the Judiciary, the accessibility of the information should not be limited only to that generated in the exercise of administrative and regulatory functions, but should also include the information generated from the exercise of jurisdictional functions. Likewise, as previously stated, private entities should be considered as obligated subjects insofar as they have public information in their possession.
We insist, this will be determined based on whether: 1) the information is generated or produced by exercising a function, exploitation or service that has been delegated, granted, granted or authorized by the State, such as is the case of companies that provide public services or those that exploit a property in the public domain; 2) the information is produced from the execution of a subsidy, fund or contribution made by the State.
On the contrary, including too broad a formula on private entities as obligated subjects could be not only questionable from the constitutional point of view, but even incompatible with a general regime of access to public information. At this point, it is interesting to take into consideration the provisions of the Model Inter-American Law on Access to Information, which provides for the inclusion of “… all public authorities, including those belonging to all branches of government (Executive, Legislative and Judicial Powers), in all levels of the internal governmental structure (central or federal, regional or provincial, municipal, etc.) to the bodies, agencies or independent or autonomous entities owned or controlled by the government, either acting by powers granted by the constitution or by other laws, and to private organizations that receive substantial public funds or benefits (directly or indirectly), or that perform public functions and services to the extent that this law applies to public funds or benefits received or public functions and services performed ”.
For these reasons, this Draft National Law on Access to Public Information must guarantee broad passive legitimacy that reaches all areas of the State and entities that receive public funds or carry out public activities, functions or services or exploit public domain assets. . As a consequence of the right of access to public information, the State's obligation arises to avoid establishing restrictions - of any kind, including economic ones - that imply discrimination in access to information.
Therefore, the principle that should govern the exercise of the right to public information is that of accessibility. This supposes, in the first place, free access to public information. No one should pay to access the requested information. However, if copies of the information or documents are requested, the cost of reproduction (paper, CD or other reproduction medium) may be borne by the requesting person. However, this may never mean an unreasonable restriction on the exercise of the right. There are other aspects, such as the language or socio-cultural level of the applicant, which must also be considered to fully satisfy the right of access to public information without discrimination.
Therefore, this Draft National Law on Access to Public Information must take into account the principle of accessibility and that of equality and non-discrimination when establishing parameters for exercising the right of access to public information, leaving The possibility of analyzing the specific case is open when the general rules established in the norm could imply discrimination in access. The information is useful as long as it is delivered to the applicant within a reasonable and foreseeable period, previously determined.
In other words, the data must be delivered in a timely manner. For this reason, short deadlines must be set to respond to requests. At this point, it is important to consider those exceptional cases in which it is necessary to have more time than the original deadline to gather the requested data and documents. Faced with these cases, the possibility of making use of an extension for a single time has usually been provided, provided that the obligated subject establishes the reasons for extending the term and notifies them to the person requesting the information within the original term to give reply.
In this regard, when sanctioning this Draft National Law on Access to Public Information, the antecedent of Annex VII of Decree 1172/0320 must be taken into account, as well as the legislation on access to public information from other countries which contemplate terms of between 10 and 20 working days, extendable -in general- for the same term and for a single time. For these reasons, the present Draft National Law on Access to Public Information must set a reasonable period to respond to requests for information that guarantee the opportunity criterion and do not undermine the exercise of the right.
As a correlate of the breadth of the concept and scope of public information, the guiding principle should be that of maximum disclosure, which assumes that all information is accessible except that excepted. This, in turn, determines that no rule can establish secrecy as a rule or as a possible practice in the public sphere. In this sense, some laws on access to public information in other countries expressly repeal the current regulations that oppose the principle of maximum disclosure.
In this regard, the Office of the Special Rapporteur for Freedom of Expression has established that "the principle of maximum disclosure orders the design of a legal regime in which transparency and the right of access to information are the general rule subject to strict and limited exceptions. The following consequences derive from this principle: (1) the right of access to information must be subject to a limited regime of exceptions, which must be interpreted restrictively, in such a way that the right of access to information is favored. information; (2) any negative decision must be motivated and, in this sense, the State bears the burden of proving that the requested information cannot be disclosed; and (3) when faced with a doubt or a legal vacuum, the right of access to information must prevail ».
To this must be added that within the framework of the Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights, Principle No. 4 recognizes that “access to information held by the State is a fundamental human right of individuals [… That] only admits exceptional limitations that must be previously established by law… ”In the same sense, the Office of the Special Rapporteur has upheld“ the grounds for restriction that allow the State to refuse to provide information that is under its power must be enshrined in a law (prior, written and strict) based on the principle of maximum disclosure. As defined by the Inter-American Court, the word law cannot be understood in any other sense than that of formal law, that is, a legal norm adopted by the legislative body and promulgated by the Executive Power, according to the procedure required by the internal law of each State…".
This is, in our case, a rule issued by the body with specific competence for it, that is, the National Congress. In other words, the possibility of establishing exceptions or reserve grounds cannot be delegated to the Executive Power or any other body; they must arise from the National Law on Access to Public Information. In practice, the lack of precision of the rules that regulate the exercise of the right of access to public information usually enables broad interpretations that collide with these standards and allow the effective delivery of the requested data to be delayed.
This must be observed when regulating exceptions in order to establish them not only exhaustively, but also as precisely as possible.
In general, the following exceptions to access to public information arise from the analysis of comparative law: a) information expressly classified as reserved (already provided for in Decree 1172/03, a topic that will be developed below); b) information that could jeopardize the proper functioning of the financial or banking system (already provided for in Decree 1172/03); c) information protected by industrial, commercial, financial, or scientific secrecy (already provided for in Decree 1172/03); d) commercial or financial information of third parties that the Argentine State has obtained confidentially (already provided for in Decree 1172/03); e) any type of information protected by professional secrecy (already provided for in Decree 1172/03) and information that could harm a person's right of defense in a judicial case; f) information referring to sensitive personal data whose publicity constitutes a violation of the right to privacy and honor (already provided for in Decree 1172/03); g) information whose disclosure could cause a danger to the life or safety of a person (already provided for in Decree 1172/03).
Within the possible limitations to the general principle of publicity and maximum disclosure, the reserved or classified information constitutes a specific exception to the right of access to public information, which, as we will see, has its own characteristics. However, the reservation or classification of public information must always respect the general criteria outlined so far. Furthermore, specifically regarding classification and reservation, it has been highlighted that "requiring that the grounds that allow a State to refuse to supply information be established in a law is a blow to the discretion and arbitrariness with which officials usually classify documents and not supply them when requested. Likewise, the application of a reserved, secret or confidential nature of documents is avoided through regulations, ordinances or other type of state decision that are not laws. The existence of a law contributes to the eradication of legal insecurity regarding the exercise of said right and regarding the State's powers to restrict it. ”
In general lines, comparative law agrees in stating that the information may be classified as reserved in the following cases: a) when a legal norm in a formal sense specifically determines it; b) in the case of information related to national defense or security, provided that it has the true purpose of protecting the existence and integrity of the State; c) when it comes to information related to diplomatic affairs, provided that it has the true purpose of protecting the existence and integrity of the State.
The assumption of defense or national security deserves special mention. The ambiguity of this concept has made possible, in the experience of a large number of countries, the indiscriminate classification of public information, including that linked to serious human rights violations. In this sense, it is important to take into account the provisions of principle 8 of the Lima Principles regarding access to public information, as it provides that “restrictions for national security reasons will only be valid when they are aimed at protecting the integrity territorial of the country and in exceptional situations of extreme violence that represent a real and imminent danger of collapse of the democratic order. A restriction on the basis of national security is not legitimate if its purpose is to protect the interests of the government and not of society as a whole. ”
Accordingly, the Inter-American Commission on Human Rights maintains in its Declaration of Principles on Freedom of Expression that “access to information held by the State is a fundamental right of individuals. (…) This principle only admits exceptional limitations that must be previously established by law in the event that there is a real or imminent danger that threatens national security in democratic societies.
Added to this scenario is a specific requirement for the classification of information: to be compatible with the international law in force in our country, the reservation must have an expiration period. When the information is subject to "a regime of exception typical of a democratic society, the possibility of the State to classify, declare reserved or confidential information related to the legitimate purposes permitted by the Convention, must establish a time limit or conditioned on the disappearance of its cause ». This requirement derives from the fact that the reasons for restricting the principle of maximum disclosure cannot be sustained indefinitely over time.
In recent comparative legislation the period during which the information can remain classified as reserved is from 5 to 15 years. For its part, the Model Inter-American Law foresees a term of 12 years. Furthermore, these regulations usually establish that the reserve falls, even when it is within the legal term, if the causes that gave rise to its classification are extinguished. It should also be noted here that the access to public information laws of other countries that were more recently sanctioned foresee that the grounds for reservation may not be invoked when the requested information is linked to human rights violations.
In the same sense, the Comments and Implementation Guide to the Model Inter-American Law establish that the restrictions on information cannot be applied in cases of violation of human rights or in cases of crimes against humanity.
In summary, with regard to exceptions and the reservation of information, it has been pointed out that «States that do not have a legal system of restrictions on the right of access will not be able to demonstrate that a rejection of a request for information is in accordance with the American Convention. When adopting this legislation, they must establish exhaustively and clearly and descriptively what type of information is subject to the exceptions regime ”.
For these reasons, this Draft National Law on Access to Public Information must provide exhaustively and as precisely as possible the exceptions to the principle of maximum disclosure that governs the right of access to public information. In addition, in case of reservation or classification of information, a time limit must be foreseen.
Both the comparative legislation of other countries and some local regulations in Argentina provide for a special procedure applicable to the processing of requests for information. This is mainly due to the relevance of the law at stake, which justifies the non-use of general regimes and responds expressly to a standard of the Inter-American Court of Human Rights that requires the issuance of norms and the development of practices conducive to effective observance of the right of access to public information.
The legislative reception of this standard is important with respect to different aspects related to the procedure for requesting public data, but it must be considered especially with regard to the configuration of the denial of information and the effect of the silence of the obligated subjects. Since the denial may be based on one or more reasons, the law must establish as clearly as possible which are those assumptions that can be alleged to justify a rejection, in order to then be able to assess their reasonableness.
Another relevant assumption that must be clearly determined in the law is how to proceed in the face of the silence of the obligated subjects. Thus, a reference to the general regime established in Law 19.549 on Administrative Procedures should be avoided. This situation has been repeated in daily practice, configuring an unreasonable restriction on the right of access to public information, basically in accordance with the standard that determines that information must be timely and whenever the general regime for configuring silence foresees long terms.
For these reasons, this Draft National Law on Access to Public Information must define how and when information can be denied and what effects the silence of the subjects obliged to provide it has. If, once the request has been submitted, and the term stipulated in the law has been met, the request for information has not been satisfied, the information has been denied, or if, having responded to the request, it is ambiguous or partial, two possibilities must be considered. : a) request the review of the decision in an administrative instance or b) go to court through simple and quick action.
It is important that both possibilities are received in this Draft Law, since each of them has different advantages and disadvantages for the subject claiming the right to access to information. While the administrative route may be simpler to put into action and usually does not require the sponsorship of an attorney, the decision obtained in this instance may still be reviewed in court and therefore configure a further step towards cash exercise of the right.
On the other hand, although the judicial route may be more difficult to access due to the need for legal sponsorship and other formal and onerous aspects, the decision reached in that instance will probably imply a better recognition of the right at stake. In any case, the exhaustion of the administrative instance cannot be required to access the judicial route, nor can it be denied the judicial review for having chosen to make an administrative claim in the first place. In other words, facing the denial, silence or incomplete response, the judicial route must be expedited.
However, up until today, in our country, the review envisaged at the administrative headquarters has, in general, been ineffective in compelling the public administration to deliver the information that it had denied, whether in a well-founded or silent manner. The opinions or notes that are reached at the end of the review process are not mandatory for the bodies and agencies that did not provide the data requested in the first place. That is why it is essential to guarantee a very summary process to claim the protection of the right before justice. This process should not be limited to protection by default, since this restricts the possibility of discussing essential aspects of the right to public information in court. This route does not guarantee a substantive or substantive analysis of the law at stake, but rather aims only to encourage the Public Administration to issue it.
In this regard, the Rapporteurship for Freedom of Expression, based on the aforementioned case of the Inter-American Court of Human Rights «Claude Reyes vs. Chile ”, has established that“ States must enshrine the right to judicial review of the administrative decision through a resource that is simple, effective, expedited and not onerous, and that allows controversial decisions by public officials who deny the right of access to certain information or that simply omit to respond to the request. Said remedy must: (a) resolve the merits of the controversy to determine if there has been a violation of the right of access, and (b) if such violation is found, order the corresponding body to deliver the information. In these cases, the resources must be simple and fast, since speed in the delivery of the information is usually essential for the achievement of the functions that this right has.
For these reasons, this Draft National Law on Access to Public Information must guarantee the possibility of an option between the administrative and judicial channels, without demanding the exhaustion of the former, nor excepting access to justice by virtue of having resorted to first place to the instance of administrative review. In addition, the law must guarantee judicial review through a very summary route that allows reestablishing or repairing the fundamental right of access to public information that has been violated.
The Access to Public Information Law must reverse the usual incentives that an official may have to deny information. Thus, the fear of the superior's reaction to the fact of having provided information, the risk of committing the State to release data that supposedly could be used against him, or the mere resistance of any bureaucracy to open up to those who are not part of it. , are the reasons that are usually offered. If to this is added the absence of any sanction against the refusal to give information, the obligated subject, having to choose to respond affirmatively or negatively to the request, may more easily lean towards the latter alternative.
Therefore, within the State, this Draft Law on Access to Public Information must establish clear responsibilities for the official who has chosen to 1) deny information in an unfounded manner and contrary to what is established by the law; 2) omit or partially deliver information acting negligently; 3) improperly use, remove, hide, disclose or alter information in its custody or to which it has access by virtue of its functions. This responsibility may be of an administrative nature, qualifying the conduct as a serious offense.
In comparative legislation, some countries have imposed personal fines on the public officials involved. Furthermore, these offenses could generate criminal liability for the crime of non-compliance with the duties of a public official.
For these reasons, this Draft National Law on Access to Public Information must establish a clear responsibilities regime aimed at restricting any margin of discretion of the subjects obliged to give information. There is currently a consensus regarding the State's obligation to publish, dynamically, even in the absence of a request, a whole range of information of public interest.
This has also been expressed by the Inter-American Juridical Committee in its Principles on the Right of Access to Information, where it was established that "public bodies must disseminate information on their functions and activities -including their policy, opportunities for consultations, activities that affect the public, budgets, subsidies, benefits and contracts - routinely and proactively, even in the absence of a specific request, and in a way that ensures that the information is accessible and understandable. ”
The most recent comparative legislation accepts this requirement and establishes in its articles the obligation on the part of every organism or entity of the State to disseminate ex officio certain information that is understood to be substantive in order to improve the transparency and publicity of government acts. Although the list of data that must be proactively disseminated varies from country to country, the standards developed in this area make it expected that the present Draft National Law on Access to Public Information contains the requirement to disseminate, at least the following Information on their web portals: a) organic structure, functions and powers; b) applicable regulatory framework; c) list of officials and agents who perform functions permanently, temporarily or under another contractual modality and the monthly remuneration corresponding to each function; d) the plans, programs and projects that correspond to each specific area; e) the reports and activities carried out; f) the budget assigned to each area, program and function, the modifications during each annual exercise and the status of execution updated quarterly; g) any transfer of public funds and the recipient natural or legal person (public or private); h) public procurement; i) reports of internal or external audits or evaluations; j) the permits, concessions and authorizations granted and their respective holders; k) the mechanisms that allow citizen participation in decision-making; l) the name, telephone, mail and contact address of the agents in charge of managing and responding to requests for public information; m) statistics of general interest, according to the competence of each organization.
For these reasons, this Draft National Law on Access to Public Information must determine a series of information that will have to be disseminated on a daily and proactive basis by public authorities. While it is the responsibility of the body or agencies that exercise the authority of application46 of the law, the implementation of a State policy regarding access to public information, its functions should include: - Carrying out the necessary actions for the adaptation of the obliged subjects so that they can comply with the obligations arising from the law; - Generate operational protocols to respond to requests for information; - Train and qualify public officials in this matter; - Implement the sanctions regime; - Receive complaints for breach of the law; - Resolve the administrative appeals presented; - Carry out a periodic audit of compliance with the obligations of active transparency; - Promote a culture of transparency by conducting systematic campaigns to publicize the existence and ways of exercising the right of access to information to the general public.
In this regard, the Office of the Special Rapporteur for freedom of expression has indicated that an adequate implementation implies a) the design of a plan that allows for the real and effective satisfaction of the right of access to information in a reasonable period of time. This, in turn, implies the corresponding budgetary allocation to meet, progressively, the demands that the law will generate; b) adopt the norms, policies and practices that allow the information to be properly preserved and managed; c) adopt a systematic policy of education and training of public officials to satisfy the exercise of this right. In addition, when legislating in relation to the enforcement authority, it is important to take into account the existing background on this aspect, in particular, the experience developed from the implementation of Decree 1172/03 and the network of links and access managers to public information in the different organs and agencies that are dependent or that operate in the orbit of the National Executive Power. For these reasons, this Draft National Law on Access to Public Information must establish that the organs or agencies that exercise the enforcement authority have: 1) operational autonomy; 2) financial autarky; 3) transparent and participatory election of its authorities; 4) technical suitability of its authorities and 5) binding force of its resolutions, to guarantee the implementation of a public policy regarding access to public information
For the reasons stated, I request the ladies and gentlemen legislators to accompany me in this Bill.
