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Model Inter-American Law on Access to Public Information and Its Implementation Guidelines

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Model Inter-American Law on Access to Public Information and Its Implementation Guidelines Organization of American States Secretariat for Legal Affairs Department of International Law MODEL INTER-AMERICAN LAW ON ACCESS TO PUBLIC INFORMATION AND ITS IMPLEMENTATION GUIDELINES Department of International Law Secretariat for Legal Affairs Washington D.C. Model Inter-American Law on Access to Public Information1 1 Department of International Law Secretariat for Legal Affairs Washington D.C. 2012 OAS Cataloging-in-Publication Data Organization of American States. Secretariat for Legal Affairs. Department of International Law. Ley modelo interamericana sobre acceso a la información pública y su guía de implementación / [Preparado por el Departamento de Derecho Internacional de la Secretaría de Asuntos Jurídicos]. v. ; cm. (OEA documentos oficiales; OEA/Ser.D/XIX.12) ; (OEA/Ser.P AG/RES.2607 (XL-O/10) ISBN 978-0-8270-5890-3 1. Freedom of information--America. 2. Freedom of expression- -America. 3. Government information--America. I. Title. II. Series. III. Series: OEA/Ser.P AG/RES.2607 (XL-O/10) OEA/ Ser.D/XIX.12 This publication has been edited by the Department of International La of the Secretariat for Legal Affairs of the Organization of American States. Copyright ã 2012. OEA. Provisions of the Model Inter-American La won Access to Public Information and its Implementation Guide may be reproduced by identifying the source. Printed in the United States of America. ORGANIZATION OF AMERICAN STATES GENERAL SECRETARY José Miguel Insulza Secretary General OAS CATALOGING-IN-PUBLIcaTION DATA Albert Ramdin Assistant Secretary General Organization of American States. Secretariat for Legal Affairs. Department of International Law. Jean-Michel Arrighi Ley modelo interamericana sobre acceso a la información pública y su Secretary for Legal Affairs guía de implementación / [Preparado por el Departamento de Derecho Internacional de la Secretaría de Asuntos Jurídicos]. Dante Negro v. ; cm. (OEA documentos oficiales; OEA/Ser.D/XIX.12) ; (OEA/Ser.P AG/ Director of the Department of International Law RES.2607 (XL-O/10) ISBN 978-0-8270-5890-3 1. Freedom of information--America. 2. Freedom of expression-- America. 3. Government information--America. I. Title. II. Series. III. Series: OEA/Ser.P AG/RES.2607 (XL-O/10) OEA/Ser.D/XIX.12 Department of International Law Secretary for Legal Affairs Organization of American States Index Preface Page Model Inter-American Law on Access to Public Information I. Definitions, Scope, and Purpose, Right of Access and Interpretation This publication has been edited by the Department of International Law of the Secretariat for Legal Affairs of the Organization of American States. Copyright © 2012. OEA. Provisions of the Model Inter-American La won Access to Public Information and its Implementation Guide may be reproduced by identifying the source. Printed in the United States of America. ORGANIZATION OF AMERICAN STATES GENERAL SECRETARY José Miguel Insulza Secretary General Albert Ramdin Assistant Secretary General Jean-Michel Arrighi Secretary for Legal Affairs Dante Negro Director of the Department of International Law Department of International Law Secretary for Legal Affairs Organization of American States CONTENTS 5 Preface 11 Model Inter-American Law on Access to Public Information 37 Commentary and Implementation Guidelines for the Model Interamerican Law on Access to Public Information 110 Annex PREFACE In recognition of the importance of access to public information and personal data protection to strengthening democracy, in 2010 the OAS General Assembly approved the Inter-American Model Law on Access to Public Information and its Implementation Guide.1 The year before, the General Assembly had adopted a resolution that entrusted the preparation of these documents to the OAS Department of International Law (DIL).2 In response to this mandate, the DIL lead a participative process to complete this task, convening a Working Group made up of Member State experts and civil society representatives. The Working Group, with the support of the Inter-American Juridical Committee, the Inter-American Commission on Human Rights Special Rapporteurship for Freedom of Expression, and the OAS Department for Effective Public Management, produced the Model Law and its Implementation Guide. During the drafting process, the Working Group considered both of the major legal traditions that exist in our hemisphere—common law and civil law—, in order to produce documents applicable in both systems, which may serve as constructive tools for every country in the continent. Both the Model Law and Implementation Guide reflect internationally accepted norms and best practices in this field, and provide for the broadest possible application of the right of access to public information (information that is in possession, custody, or control of any public entity). The right of access to public information is key to protecting numerous individual and collective rights that are integral to robust and functioning democracies. The free exercise of this right is what allows for transparency in public management, because it is what guarantees the common man’s ability to obtain information on how the government and its programs are run. Furthermore, the close relationship between the right of access to public information and the promotion of human rights, economic development, and governance has been widely recognized. 1 AG/RES 2607 - (XL-O/10), “Model Inter-American Law on Access to Public Information”, approved in the fourth plenary session of the General Assembly, held June 8, 2010. 2 AG/RES. 2514 (XXXIX-0/09), “Access to Public Information: Strengthening Democracy,” approved in the third plenary session of the General Assembly, held June 4, 2009. Model Inter-American Law on Access to Public Information 5 B. Private Interest C. Public Interests D. Partial Disclosure of Information E. Length of Restrictions on Access to Information F. Public Interest Override Chapter 3: Monitoring, Enforcement, and Effectiveness of the Law A. Oversight B. Enforcement C. Models of Enforcement D. Establishment of Commission E. Inter-American System F. Sanctions G. Effectiveness Chapter 4: Allocation of Resources Necessary to Create and Maintain an Effective Access to Information System and Infrastructure A. Factors for Consideration to Establish a Realistic Budget B. Assessment of Resource Levels C. Assessing and Negotiating the ATI Budget of an Information Commission Checklist of Line Items for the Budget Chapter 5: Adoption of Effective Information Management Policies and Systems to Properly Create, Maintain, and Provide Access to Public Information A. Information Management B. Data Sources C. Information Production D. Proactive Disclosure E. Technology F. Achieving Conformity Checklist Chapter 6: Capacity-Building for Information Providers and Users A. Phase 1: Initial Capacity Building B. Phase 2: Continuing/Permanent Capacity Building C. Incentives COMMENTARY AND GUIDE FOR IMPLEMENTATION FOR THE MODEL INTERAMERICAN LAW ON ACCESS TO INFORMATION Chapter 1: Adoption of Comprehensive Framework A. Study of Existing Laws and Policies B. Adoption of Model Law and Amendments to Existing Law C. Rescinding of Laws and Policies Contrary to Access to Information Regime D. Enacting Supporting Laws Which Promote Openness E. Timeline for Implementation Chapter 2: Exceptions From Disclosure A. Principles of Interpretation of the Exceptions B. Private Interest C. Public Interests D. Partial Disclosure of Information E. Length of Restrictions on Access to Information F. Public Interest Override Chapter 3: Monitoring, Enforcement, and Effectiveness of the Law A. Oversight B. Enforcement Preface In recognition of the importance of access to public information and personal data protection to strengthening democracy, in 2010 the OAS General Assembly approved the Inter-American Model Law on Access to Public Information and its Implementation Guide. 1 The year before, the General Assembly had adopted a resolution that entrusted the preparation of these documents to the OAS Department of International Law (DIL). 2 In response to this mandate, the DIL lead a participative process to complete this task, convening a Working Group made up of Member State experts and civil society representatives. The Working Group, with the support of the Inter-American Juridical Committee, the Inter-American Commission on Human Rights Special Rapporteurship for Freedom of Expression, and the OAS Department for Effective Public Management, produced the Model Law and its Implementation Guide. During the drafting process, the Working Group considered both of the major legal traditions that exist in our hemisphere— common law and civil law—, in order to produce documents applicable in both systems, which may serve as constructive tools for every country in the continent. Both the Model Law and Implementation Guide reflect internationally accepted norms and best practices in this field, and provide for the broadest possible application of the right of access to public information (information that is in possession, custody, or control of any public entity). The right of access to public information is key to protecting numerous individual and collective rights that are integral to robust and functioning democracies. The free exercise of this right is what allows for transparency in public management, because it is what guarantees the common man’s ability to obtain Since their creation, the Model Law and Implementation Guide have information on how the government and its programs are run.
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