Inter-American Model Law on Access to Information

General Assembly June 2010 the OAS General Assembly a In June 2010 the OAS General Assembly approved Resolution 2607 with the full text of the Model Law. Resolution 2607 requested today’s meeting provide an overview of the Model Law and take notice of any observations member states may present thereto. Resolution 2607 instruct the General Secretariat to provide support to the member states that so request in the design, execution, and evaluation of their regulations and policies on access to public information by citizens.

Model Law I.Definitions, Scope and Right II.Measures to Promote Openness III.Process of Access IV.Exceptions V.Appeals VI.Information Commission VII.Monitoring and Compliance

PART I: Scope Principle of Maximum Disclosure: all information is accessible Principle of Maximum Disclosure: all information is accessible Information: All information in possession, custody or control of any public authority Information: All information in possession, custody or control of any public authority Exceptions: clear and narrow regime, defined by law that are legitimate and strictly necessary in a democratic society Exceptions: clear and narrow regime, defined by law that are legitimate and strictly necessary in a democratic society

Public Authorities Government:Executive, Legislative and Judicial Government: Executive, Legislative and Judicial Structure: Central or Federal, Regional or Provisional, Municipal, etc. Structure: Central or Federal, Regional or Provisional, Municipal, etc. Organ or entity: Entities owned or controlled by the government Organ or entity: Entities owned or controlled by the government Private organizations: Private organizations:  Receiving substantial public funds or benefits  Perform public functions and services

Right of Access To be informed if the public authority holds the information To be informed if the public authority holds the information To have the information communicated in a timely manner To have the information communicated in a timely manner To an appeal where access to information is denied To an appeal where access to information is denied To make anonymous requests To make anonymous requests To make requests without providing a justification To make requests without providing a justification To be free from discrimination based on the nature of the request To be free from discrimination based on the nature of the request

PART II: Proactive Measures Publication Schemes Key Information Information Asset Registers Request and Disclosure Logs Previously Released Information

PART III: Access to Information Request for Information The presentation of a request may be: in writing electronically in person any alternative means The request must contain: contact information description of information sought form information should be provided

PART III: Access to Information Responding to a Request Receipt: Receipt: the public authority must reasonable interpret the scope and nature of the request Assistance: Assistance: the public authority has the obligation to assist requester Response: Response: the public authority must respond in precise and clear manner Forwarding: Forwarding: if the public authority does not hold the information, it must forward the request to the appropriate authority

Information Officer In charge of the law in each authority: Internal: Promote best practices in maintaining and archiving information External: Receipt of requests, helping requester, receipt of complaints

Time to Respond Respond as soon as possible: maximum within 20 working days of receipt of request Transfer: the date of receipt should not exceed ten days from the date the request was first received ` Extension: if the request covers voluminous records, requires the search of offsite locations, or requires consultation with other authorities Failure to respond: failure to respond is understood to be a denial of a request.

Costs All requests should be free Costs of reproduction: can not exceed the costs of materials Cost of delivery: market price Electronic information: without cost Cases of poverty: without cost of reproduction or delivery

PART IV: Exceptions Only in two cases can the public authorities deny access to information:  Where it would harm PRIVATE interests  Where it would harm PUBLIC interests

Private Interests Right to privacy, including life, health or safety Commercial and legitimate economic interests Intellectual property: Patents, copyright, and trade secrets.

Public Interest The exception applies if the following requirements are met: Access would create a clear, probable and specific risk Access would create a clear, probable and specific risk Substantial harm Substantial harm Which should be further defined by legislation Which should be further defined by legislation To the following public interests: To the following public interests:

Protected Interests · public safety · national security · the future provision of free and frank advice · development of policy · international relations · law enforcement, prevention, investigation and prosecution of crime · ability of State to manage the economy · financial interests of the public authority · tests and audits

Public Interest Override The exception does not apply in cases where the public interest in access to information outweighs the harm caused to the protected interest The exceptions do not apply in cases of violations of human rights or crimes against humanity

PART V: Appeals Internal Appeal System of appeal within the public authority External Appeal System based on an Information Commission Judicial Review Final redress before the courts of the state Inter-American System Inter-American Commission and Court on Human Rights

Internal Appeal Internal appeal before the head of the public authority Internal appeal before the head of the public authority Written decision stating reasons within [10] days Written decision stating reasons within [10] days The internal appeal is not mandatory The internal appeal is not mandatory

External Appeal Right: Any requester who believes that his or her request has not been processed in accordance with the Law has the right to file an appeal with the Commission Right: Any requester who believes that his or her request has not been processed in accordance with the Law has the right to file an appeal with the Commission Content: the public authority with which the request was filed ▪ the contact information of the requester ▪ the grounds upon which the appeal is based ▪ any other information that the requester considers relevant. Content: the public authority with which the request was filed ▪ the contact information of the requester ▪ the grounds upon which the appeal is based ▪ any other information that the requester considers relevant. Process: Centralized tracking system ▪ inform interested parties · system for making representations · fair and nondiscriminatory rules · system of clarifications Process: Centralized tracking system ▪ inform interested parties · system for making representations · fair and nondiscriminatory rules · system of clarifications

External Appeal Timeframe: decision within 60 days Timeframe: decision within 60 days Extension: timeframe can be extended by 60 days in extraordinary cases Extension: timeframe can be extended by 60 days in extraordinary cases Types of Decisions: 1) reject and appeal; 2) require delivery of the information or repair any other non-compliance Types of Decisions: 1) reject and appeal; 2) require delivery of the information or repair any other non-compliance Mediation: Once an appeal has been received, the commission may mediate the dispute between he parties in order to achieve delivery of the information without need for a full appeal process Mediation: Once an appeal has been received, the commission may mediate the dispute between he parties in order to achieve delivery of the information without need for a full appeal process

Court Review A requester may file a case with the court only to challenge a decision of the Information Commission, within [60] days of an adverse decision or the expiration of the term provided in the law A requester may file a case with the court only to challenge a decision of the Information Commission, within [60] days of an adverse decision or the expiration of the term provided in the law The court shall come to a final decision on all procedural and substantive aspects of the case within [60] days. The court shall come to a final decision on all procedural and substantive aspects of the case within [60] days.

Burden of Proof The burden of proof falls on the public authority: that the exception is legitimate and strictly necessary in a democratic society based on the standards and jurisprudence of the Inter-American system that the exception is legitimate and strictly necessary in a democratic society based on the standards and jurisprudence of the Inter-American system disclosure will cause substantial harm to an interest protected by this Law disclosure will cause substantial harm to an interest protected by this Law that the likelihood and gravity of that harm outweighs the public interest in disclosure of the information that the likelihood and gravity of that harm outweighs the public interest in disclosure of the information

PART VI: Information Commission Establishment: A Commission should be established which will be in charge of the effective implementation of the law Autonomy: Must have complete operational, budgetary and decision-making autonomy Budget: Legislature should approve a budget that is sufficient for the commission to fulfill all of its duties in an adequate manner

Commissioners Integration: [three of more] commissioners with diversity of experience and talent Selection: citizen, high moral character, have not occupied a government post, etc. Nominated: [executive branch], designation by vote of the [legislative branch] Functions: must be a full-time position remunerated with the salary of a [high-court judge] Exclusivity: cannot have other employment, or commission Duration: [5] years, renewable once

Duties and Powers Issue decisions to the public authorities Review information in possession of the authorities Sua sponte authorization to monitor, investigate and execute fulfillment of the law Call witnesses and evidence necessary in appeals Adopt necessary internal norms to fulfill it duties Mediate disputes between parties to an appeal

PART VII: Promotion Monitor and Compliance: Monitor and Compliance: Legislature should monitor the operation of the law to make improvement recommendations Training Training: Information Officers shall provide training to officials of the public authority, with the support of the commission and civil society Formal Education Formal Education: The [Ministry of Education] shall guarantee that educational modules on access to information are included in primary and secondary education