Transparency Law Passes Unanimously

(To read more on our coverage of the Transparency Law, look here and here.)

A mere three months after its introduction on December 2, 2010, the Legislative Assembly of El Salvador voted yesterday to accept President Funes’s comments on the Transparency and Public Access to Information Law. Despite minor differences in opinion among the parties on certain points of the law, it was passed unanimously (81 votes). This complete consensus comes as somewhat of a surprise, especially given the strong opposition originally presented by the PCN (National Conciliation Party), GANA (Grand Alliance for National Unity), and the PDC (Christian Democratic Party). However, commented the president of the Legislative Committee, Guillermo Ávila Qüehl (ARENA), “what’s important is that it passed.” This vote was the final step in the law-making process, and the law is scheduled to become effective in March 2012.

The law recognizes three categories of information: reserved, confidential, and public.  Reserved information, which the government may refuse to divulge, is anything that could compromise national security or the public interest. Personal information about individuals (such as any health conditions, or religious or sexual preferences) is considered confidential and will also not be available to the public. What constitutes public information has yet to be precisely defined, but may potentially encompass all information which is not reserved or confidential.

The law now requires government institutions, and private entities funded by the state, to make information available to the public by establishing an accessible database of information, in addition to supplying inquirers with their requested public information. Additionally, the law creates a new government agency (yet to be appointed), tasked with implementing the law and punishing those who do not comply.

 

New Transparency Law Stalled

On December 2, 2010, the Legislative Assembly of El Salvador approved the Transparency and Public Information Access Law (Ley de Transparencia y Acceso a la Información Pública in Spanish), and on January 6, 2011, President Funes vetoed it and returned it with comments to the Assembly.  The proposed law would have required government institutions, and private entities tied to the state, to make information available to the public without, necessarily, a formal request, by establishing an accessible database of information. Additionally, the proposed law would have created a new government agency tasked with implementing the law and punishing those who do not comply.

The bill passed by the Legislative Assembly created three categories of information: reserved, confidential, and public.  Reserved information, which the government may refuse to divulge, is anything that, if made public, would compromise national security or the public interest. Personal information about individuals (such as any health conditions, or religious or sexual preferences) is considered confidential and would also not be available to the public.  All information that does not fall into these two categories is categorized as public and would be available to everyone.

This would be El Salvador’s first law regulating transparency and the establishment of a database of public information. Currently individuals have the constitutional right to request information from state-affiliated agencies on the municipal level, but, as there is no law to guarantee and enforce this right, it is not currently used to its full advantage. Under this new law, institutions would have 10 business days from the date of a request for information not already public to provide the inquirer with either a) the information requested or b) a response denying the request if the information is reserved or confidential. If denied, the person making the request may appeal to the government agency implementing the law. If the enforcement agency, which will be comprised of five people that the President selects from a list of nominees from five social sectors, finds that the government body was unjustified in denying the request, they may release the information and impose a penalty of up to $8300.

The law passed the Legislative Assembly with a vote of 55-30, enjoying support from representatives from both the FMLN and ARENA parties. On January 6, President Funes vetoed the proposed law and returned it to the Assembly with comments. The law that was passed by the Legislative Assembly would give Salvadorans the right to request information 30 days after the President signed it into law. In his comments, President Funes requested that they give his administration one year before people can make requests, allowing his administration to create the new government agencies. He also suggested a more clear definition of what is ‘public’ information, instead of letting it be defined simply as what is not reserved or confidential, terms that are also vaguely defined. Lastly, he proposed that the Legislative Assembly better define how government institutions must respond in the case of an inquiry. In general, the President’s comments on the law and his reasons for vetoing it seem based on improving the law and its application, and not out of an opposition to its underlying principles.

The law was returned to the Legislative Assembly, which will look over the President’s comments and decide whether to address the issues he raised.

If the President eventually signs the bill into law, it would mean increased access to information and governmental transparency, which would theoretically foster more active and effective community participation and, in turn, keep government-affiliated institutions accountable to the people they represent. However, as columnist and professor Guillermo Mejía points out, in a politically developing nation like El Salvador, the public may not recognize the importance of this law or the importance of their role in its success. If Salvadorans do not use the law or take a more active role in holding their government officials accountable, the law will not have much of an impact on the country’s nascent democracy. To illustrate this point, Mejía cites the recent Wikileaks scandal as indicative of the persistence of governmental duplicity in the face of popular apathy even in developed nations like the U.S.

Many of those who have supported the laws passage are concerned that Funes’ veto is less about making the law better, but trying to kill the bill altogether. The Promoters of the Transparency and Public Information Access Law (abbreviated GP in Spanish – a summary of the group and a list of its members can be found here), writers for El Faro in particular, have expressed such concerns , and fear that the President is trying to minimize the transparency of his administration.  Others believe that Funes is trying to slow down the implementation of the law in order to give government officials more time to reorganize sensitive documents before they become public.

Funes has responded to these accusations by noting that the previous ARENA-run administrations that were in power for 20 years blocked all previous efforts to promote a transparency law. He has pointed out that he did not veto the bill outright, but sent it back with comments and a mind toward future progress.

 

FMLN Says it Will Back Transparency Law

Last week El Faro reported that FMLN legislators have committed to supporting a law on transparency and access to public information. The announcement followed a meeting with a group of stakeholders that include the Association of Salvadoran Journalists (APES), the Latin American Institute of Constitutional Law, the National Foundation for the Development, the Salvadoran Chapter of Transparency International, the University of José Siméon Cañas (UCA), the Association of Broadcasters (Asder), and FUSADES.

The Legislative Assembly considered a similar proposal last year, but ultimately rejected it, arguing that the cost of a new government institution to oversee transparency was too great considering the country’s economic concerns. The stakeholders group argues that the cost of implementing a transparency program far outweighs the current costs of corruption and misappropriation of government funds. In a recent public statement, representatives from Transparency International also stated that a country that is transparent and accountable to its citizenry is more efficient and faces less national and international arbitration.

In June, representatives from the ARENA party committed their support for legislation to promote transparency and access to public information. With support from both parties, legislators and members of the working group will begin drafting a new law followed by legislative discussions. El Salvador is one of the last countries in Latin America to adopt a transparency law.