Experts criticize entity created by the Peruvian government to regulate access to public information in the country

The Peruvian government recently formalized the creation of the National Authority for Transparency and Access to Public Information, whose purpose is to ensure the proper application of the Law on Transparency and Access to Public Information, enacted 13 years ago, reported newspaper La República.

The Authority will have an Administrative Tribunal for Transparency that will ultimately resolve the appeals filed by citizens against State institutions that refuse to provide public information.

However, in this regard, one of the advisors who was part of the team of specialists who worked on the proposal of the transparency authority to the Ministry of Justice, Peruvian lawyer and expert in the right to freedom of information Roberto Pereira, told La República that an authority for transparency had been approved that was doomed for failure.

"The government has shown that it has no will to fight against corruption, for having created a symbolic Transparency Authority," Pereira said.

What the expert commission presented, Pereira said, was partially welcomed by the Presidency of the Council of Ministers. "A Transparency Authority without the capacity to promote transparency in the State has been approved," he emphasized.

In an interview with the Knight Center for Journalism in the Americas, Pereira said that in the proposal of the team of experts that he integrated, the Authority had more robust powers in terms of regulation, supervision and promotion of transparency, access to public information and protection of personal data.

For example, he noted, the Authority had the ability to monitor and resolve conflicts over classification of information. In that context, Pereira explained, it could review and modify the classification of information made by State entities.

However, he continued, "the Authority that has been created not only does not have that ability, but even worse, it will not even be able to access information classified as 'secret', 'reserved' or 'confidential', by State entities. Then, it will suffice that they classify the information to make the Authority incompetent."

According to Pereira, misclassification of information is one of the most serious behaviors of "state secrecy," so if a monitoring body is created that can not review this classification decision and revoke it, one could not properly speak of an Authority.

The executive director of the Peruvian Institute of Governmental and Social Studies, Diethell Columbus Murata, through his Twitter account, also lamented that the government did not fully accept the proposal for the transparency authority presented by the professional specialists who worked on the subject from the beginning.

In the opinion of Columbus Murata, Legislative Decree 1353 that created the transparency authority should be observed or repealed by the government itself or by Congress because it has extra constitutional powers.

However, one of the advantages of the particular existence of the transparency authority would make it possible, for the first time in Peru, according to the news blog LaMula, to sanction a public official who refuses to deliver public information.

The sanctions provided for by said rule, published the official newspaper El Peruano, would go from a written warning to the official or institution, to a suspension without pay of between 10 and 180 days. It also includes a maximum fine of up to 19,750 nuevos soles (about USD $ 5,700), or dismissal and disqualification, depending on the severity of the case.

The Ombudsman's Office, in a statement published on its site on Jan. 7, welcomed the initiative of the Executive Power to create the National Authority for Transparency and Access to Public Information, as a key milestone in the fight against corruption, the promotion of transparency in the State and the defense of fundamental rights, among other things.

The idea of creating a transparency authority to regulate the policies of access public information emerged at the end of 2012, from the Ombudsman's Office.

The then-Ombudsman Eduardo Vega Luna proposed to the Executive Branch, through a Preliminary Bill, the creation of a specialized technical body, with technical, functional, administrative, regulatory and economic autonomy.

In the proposal, the main function of the Authority would be to supervise and sanction recurrent breaches of the law of transparency and access to public information by public officials. This entity would also have the authority and competence to resolve disputes, establish binding criteria, train institutions and public officials and promote the right to public information among citizens, principally.

According to documents of the Office of the Ombudsman, this proposal was made from institutional experience. Additionally, they worked on some aspects with the World Bank. All this was done in order to promote a culture of transparency in the state administration and, consequently, an effective exercise of the right to public information by the population.

To date, in the 13 years that the Law on Transparency and Access to Public Information has been in force, the Ombudsman's Office has registered 7,000 complaints for breach of the law. It has also trained more than 3,000 public officials and citizens; and has produced various manuals and reports regarding the law, the institution published on its site.

Pereira commented that the proposal presented by his team was centered on the ideas originally presented by the Ombudsman. However, he pointed out that the Presidency of the Council of Ministers has only taken into account accessory or secondary aspects of it.

Concerning the proposal, Pereira added: "We worked for 13 sessions, we listened to civil society, we took into account the main comparative models, the opinion of academics, international officials that integrate compliance authorities."

However, he added, "we saw with astonishment how in a few days our proposal was put aside and progressively transformed into a cosmetic institution dominated by improvisation, unfounded fears towards transparency and much ignorance about the subject."

The Authority created "is one more unit" of the Ministry of Justice and Human Rights, Pereira emphasized.

For his part, the Peruvian President Pedro Pablo Kuczynski declared to the radio network RPP that he does not rule out that there is some error to correct in the decrees presented to the Legislative Power. Nevertheless, the president was very optimistic that he will count on the cooperation of the parliament for its approval.

He said this in reference to the whole package of rules made of 108 legislative decrees presented on Jan. 7 by the Executive Power to Congress, including the one that created the transparency authority, within the framework of the 90 days of legislative powers which Congress granted to the Executive.

Although the decree that created the Authority has been in force since it was published, Congress could revoke it if it contradicted the Peruvian constitution or if it had no relation to the matters or subjects for which the parliament temporarily gave legislative powers to the Executive.

According to Pereira, this decree does not incur any of these assumptions, so Congress could not revoke it. "Now, different things are the implementation deadlines that the law itself contains and are related to the issuance of its Regulation, the election of the members of the Authority and the Court, and the implementation of both," Pereira said .

The Knight Center unsuccessfully consulted the Ombudsman's Office about the omissions of the Authority that are questioned by lawyers. This office will present a detailed opinion in the coming days.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.