4 October 2024 –

It is a right to access public information in Latin America. At the Inter-American level the Principles on the Right of Access to Information and the Escazú Agreement, enshrine this right.

All of the countries in the region guarantee the right to access public information, to different degrees, through access to information laws.

Access to information is a key element for fighting corruption. The UN Convention against Corruption (UNCAC) recognizes access to information as a cornerstone of an anti-corruption strategy: article 10 of the UNCAC requires States Parties to take measures to increase the transparency of their public administrations, including providing access to information on “the organization, functioning and decision-making processes of its public administration”. Article 13 establishes a relationship between citizen participation and access to information, committing States Parties to ensure public participation by ensuring “effective access to information” and respecting, promoting and protecting “the freedom to seek, receive, publish and disseminate information concerning corruption.”

Yet, it is worth noting that most access to information regulations in the Americas usually include caveats. Exemptions exist that restrict certain types of information, or information originating in certain spheres from being disclosed. Exemptions to the right to information are common in international legislation on access to information, often establishing reasonable boundaries to disclosure. Still, many times, they are abused by those who would prefer information be kept confidential.

The misuse of exemptions to undermine transparency and promote secrecy in certain spheres of government was the topic of the 15th Regional Meeting for Latin America. Representatives from TI Defense and Security (a program within TI UK),  Japiqay (Peru), and Poder Ciudadano (Argentina) shared their experiences navigating access to information exemptions in the region.

The right to access information, but with exemptions

As mentioned, the right to access public information is guaranteed by most of the countries in the region through their shared regional conventions and national laws. Yet within Latin America and the rest of the world, access to information laws generally include exemptions. These exemptions exist to preserve or protect values that may be undermined by the disclosure of this information, such as issues relating to national security or individual privacy, among other issues.

The World Bank recommends that any exemption to access to information meet three requirements: 1 – that the law includes a comprehensive, clear, narrowly defined list of legitimate purposes justifying the denial of information; 2- that access be denied only when there is serious harm to those legitimate purposes; and 3- that the benefits of releasing requested information generally outweigh the dangers of releasing the information. 

These guidelines, however, even if correctly applied, may be misused to withhold information from citizens. In previous Regional Meetings held by the UNCAC Coalition, various participants noted the arbitrary use of national security or privacy exemptions to access information laws as significant obstacles to their work.

Shedding light on defense and security

Irasema Guzman, Project Officer from Transparency International Defense and Security, was invited to speak about the experience of TI DS on access to information in security and defense settings. As mentioned above, national security exemptions are common reasons for denying access to information. TI DS has been working for years on shedding light on the sector and has created the Government Defence Integrity Index (GDI). This Index ranks countries based on anti-corruption and transparency indicators, aiming to show the general lack of accountability within security apparatuses worldwide.

Defense and security, according to Irasema, is particularly vulnerable to corruption, due to large budgets, practices of secrecy and classification of information, high-level decision-making, very technical knowledge, and cultures of exceptionalism related to the defense sector. This vulnerability to corruption also contributes to the generally perceived opacity of defense and security spending and decision-making.

TI-DS has found that exemptions to access to information tend to be used in vague and undefined ways, thus impeding broad disclosures of information. Many times the information that is withheld is financial (including budgetary, expenditure, and audit reports) which can be essential in preventing and detecting corruption risks. The persistence of “Defence exceptionalism” means that these sectors are treated differently than other areas of the public sector when it comes to applying national and international access to information rules.

Irasema shared general findings of the GDI to provide examples of this defense exceptionalism. Among the major areas of risk identified by the GDI, she particularly noted a general lack of legislative control over military strategy and expenditures, a lack of codes of conduct or accountability frameworks for military personnel concerning corruption, and a high level of confidentiality regarding procurement in the defense sector. In regards to the access to information indicator that the GDI measures, of the 86 countries that were evaluated, almost half presented high or critical risks of corruption. Two-thirds of the countries analyzed presented high rates of delays, arbitrary refusals of basic budgetary information, as well as blanket refusal of access to information requests. 

The presentation finished with a review of the access to information indicators for countries in the region, namely Argentina, Brazil, Chile, Colombia, Mexico, and Venezuela. Of these, only Brazil and Chile had low-risk frameworks related to access to information, while on the opposite side of the spectrum, Venezuela was found to have a critical risk. Irasema shared examples of good practices and instances of high risk in relation to this indicator in the region.

The decay of access to information in Peru

Gabriela Flores from Japiqay, an organization based in Peru, wanted to share her organization’s perspective on the steady decline of access to information provisions in Peru. Japiqay works on anti-corruption matters in Peru and regularly solicits information from public authorities. While Article 2 of the Peruvian Constitution guarantees the right to access public information, it also establishes exemptions to this right. 

Peru has made it more difficult to access information about official meetings and preparatory documents in recent years. While laws have not created new exemptions to access information, government agencies have been instructed not to disclose certain types of information and documents. These documents in the past have been key to uncovering intent behind corrupt actions or abuse of power, but are now barred from the eyes of accountability-seeking citizens. 

Gabriela noted that Peru has differentiated standards of information disclosure depending on the obligated person. For example, sworn asset declarations for electoral candidates are published proactively, while those same asset declarations for elected officials are only available upon request. Similarly, information on public procurement is generally available when requested, except for the entire Ministry of Defense and military contractors. Transparency standards, thus, are contradictory and arbitrary.

In the last few years, Japiqay has noted an increasing number of rejections of access to information requests based on national security and privacy exemptions. Requests to disclose information on past security plans and operations have been rejected numerous times. Gabriela highlighted this since the current government has come under fire for botched security operations which have led to undue violence and repression against protestors. Peru’s Supreme Court has, fortunately, mandated the release of these documents, as well as internal communications of public officials related to certain security operations in order to properly identify what has gone wrong.

The “Olivos Papers” and an end to exemptions

German Emanuele, director of Poder Ciudadano’s ALAC in Argentina, shared his experience working on the “Olivos Papers” initiative, which fundamentally improved access to official information regarding visits to the presidential residence – the “Quinta de Olivos”.

In 2016, Poder Ciudadano requested information from the Residence about entrance and exit logs from 2007 to 2016. This was initially granted, and a surprising amount of detail provided. The information was processed by several journalists and was considered a great resource to see who was visiting the residency officially. Poder Ciudadano replicated this access to information request for the Presidential Palace, both chambers of Congress, and the Supreme Court. Results were mixed, with the Chamber of Deputies and the Supreme Court withholding information.

The transparency was not to last. In 2018, requests for information about the logs of the Presidential residence were once again deemed a matter of national security and not disclosed. Poder Ciudadano took the denial of information to the courts. They argued that the information had previously been granted regarding a previous presidential administration and that in that instance it was not deemed to be a matter of national security. They argued that they were not requesting up-to-date information that may put the security of the President at risk but information with a one-year delay. The national access to information agency sided with Poder Ciudadano and held that the government was not fulfilling its access to information requirements. The government released limited, disaggregated information, which Poder Ciudadano once again stated did not comply with the request. In 2019, a lower circuit court ruled in favor of disclosure of the information, setting a legal precedent for future access to information requests made regarding the Quinta de Olivos.

The “Olivos Papers” case created a now widely used tool for journalists to determine who Presidents were meeting with and who got access to the President “off-the-clock”.

Struggling to maintain access to information rights

Itzel Jiménez Ríos from Impunidad Cero noted that in Mexico, the current government has publicly called for the elimination or reduction of the powers of the Federal Institute for Access to Public Information and Data Protection (INAI), the public access to information commissioner for the Federal government. She noted that her organization, as well as other organizations in the country, have called for the INAI to be protected, but laments that there is little legislative support to protect the agency. Several other participants noted the importance that the INAI has had in the last decade in creating regional standards and benchmarks for access to information agencies and commissioners.

Conclusions and the way forward

The excessive use or abuse of exemptions to access to information is a worrying trend in Latin America and the Caribbean. A better balance. where disclosure is the rule, not the exception, is essential to preserve integrity and accountability in democratic states.