Following up on our April 2 posting, the Funes Administration finally provided comments on the draft Law on Access to Public Information.
One of the controversial provisions of the draft creates a new Commission on Ethics and Access to Public Information that will oversee the implementation and monitoring of the new law, as well as the 2006 Government Ethics law that is also being reformed. Administration officials and others fear that one commission implementing both laws will create a large, ineffective bureaucracy, and the important reforms in each law will go unenforced.
The two laws are important to opening up El Salvador’s government by increasing public participation, promoting greater transparency, and taking more measures to limit corruption. If passed, the Law on Access to Public Information will give citizens the right to information that will allow them to know what their government representatives are doing and how. The Municipal Code provides such rights at the local level, but Salvadorans have never had free access to information from the Central Government.
The proposed reforms to the 2006 Law on Government Ethics will strengthen the existing regulations on how public officials and institutions conduct business. Government officials, for example, will no longer be permitted to engage in political party activities while on the clock.
The new Commission will be comprised of ten committee members, including a chairperson. The president will select the chairperson from a pool of candidates nominated by civil society representatives, who must then be confirmed by the Supreme Court. Civil society organizations, the Legislative Assembly, the Public Ministry, the Court of Auditors, the National Association of Private Companies, Universities, and others will choose the other commissioners.
Claudia Umaña, the Director of the Department of Legal Studies at FUSADES (the Salvadoran Foundation for Economic and Social Development) fears that the composition of the Commission and the lack of rules binding the members will make the Commission ineffective. She also worries that it is too much to ask one commission to oversee the application of two separate laws that cover separate issues. Marcos Rodríguez, the chair of the Undersecretary on Transparency disagrees, arguing that representation of all these groups will reduce conflicts of interests when the Commission makes decisions.
FUSADES and other organizations that have promoted a new Law on Access to Information are concerned that the current draft is not strong enough, and lacks the enforcement mechanisms necessary for full implementation. The draft, for example, does not contain the mechanisms to guarantee that the information a government agency provides is accurate and complete. The draft also fails to address issues such as when a government agency can withhold information, when they must publish information prior to a specific request, and whistleblower protection.
The Legislative Assembly will meet next week to discuss the Administration’s comments and concerns.