UNITED NATIONS DEVELOPMENT PROGRAMME

UNDP REGIONAL CENTRE PANAMA Freddy Justiniano DIRECTOR a.i. UNDP REGIONAL SERVICE CENTRE FOR LATIN AMERICA AND THE CARIBBEAN Gerardo Berthin GOVERNANCE AND DECENTRALIZATION POLICY ADVISOR Maria Angelica Vásquez CONSULTANT- DECENTRALIZATION AND LOCAL GOVERNANCE UNDP REGIONAL BUREAU FOR LATIN AMERICA AND THE CARIBBEAN – NEW YORK Álvaro Pinto COORDINATOR DEMOCRATIC GOVERNANCE CLUSTER UNDP MEXICO Diego Antoni DEMOCRATIC GOVERNANCE PROGRAMME DIRECTOR Paola Gómez MANAGER DEMOCRATIC GOVERNANCE PROGRAMS

PROJECT COORDINATORS AND EDITORS Guillermo M. Cejudo CIDE RESEARCHER Alejandra Ríos-Cázares CIDE RESEARCHER

RESEARCHES

Central America

Rafael Reyes García

Researcher cases of Honduras and Panamá

María Adilia Serrano

Researcher case of Nicaragua

José Antonio Pérez

Researcher case of Guatemala

ADVISORY COMMITTEE

Gerardo Berthin (UNDP) Diego Antoni (UNDP) Alejandra Ríos-Cázares (CIDE) Guillermo M. Cejudo (CIDE)

The section on Mexico is based on the 2010 Metrics of Transparency analysis carried out by a research

team from the Center for Economic Research and Teaching (CIDE), coordinated by Dr. Sergio López

Ayllón and formed by the researchers David Arellano, Guillermo M. Cejudo, Alejandra Ríos Cázares; and

Ana Elena Fierro, Adriana García and Juanita Gómez as research associates. All the information related

to Metrics of Transparency is available at www.metricadetransparencia.cide.edu

Original Version in Spanish Translated by Michelle McCudden

SEPTEMBER 2011

The views expressed in this publication are those of the author and do not necessarily

represent those of the United Nations Development Programme (UNDP).

Content

Presentation ................................................................................................................................................ 11

Acronyms .................................................................................................................................................... 13

Acknowledgements ..................................................................................................................................... 15

Introduction ................................................................................................................................................ 19

Chapter 1

Legislative History ....................................................................................................................................... 25

Chapter 2

Dimension 1: Normative Framework .......................................................................................................... 31

Chapter 3

Dimension 2: Government Web Portals ..................................................................................................... 41

Chapter 4

Dimension 3: Simulated User Exercise ....................................................................................................... 49

Chapter 5

Dimension 4: Institutional Capacities of the Responsible/Guarantor Entity ............................................. 57

Conclusions ................................................................................................................................................. 67

References .................................................................................................................................................. 73

Annexes ....................................................................................................................................................... 77

Annex A ...................................................................................................................................................... 77

Annex B ....................................................................................................................................................... 78

Presentation

The Transparency and Accountability in Local Governments (TRAALOG) regional initiative started in

April 2010. The TRAALOG has been supported by the Democratic Governance Thematic Trust Fund

(DGTTF), the Global Thematic Programme on Anti-Corruption for Development Effectiveness (PACDE),

and the United Nations Development Progamme (UNDP) Spanish Trust Fund. The TRAALOG is an

initiative of the UNDP Democratic Governance Practice Area of the Regional Bureau for Latin America

and the Caribbean (RBLAC), and is implemented from the UNDP Regional Centre for Latin America and

the Caribbean in Panama.

The TRAALOG targets small initiatives at the local level that can be scaled up through policy support and

capacity development and partnerships. One of the key activities of TRAALOG is to promote the

development and systematization of knowledge products and tools, focusing on specific initiatives

aimed at increasing transparency and accountability, as well as to mainstream anti-corruption issues

into other areas, such as access to information, ethics, climate change, health, Millennium Development

Objectives and social audit. The idea is for these knowledge products to serve as means, to generate

interest and discussion among UNDP Country Offices in and outside the region, regional service centers

and other units of UNDP and the wider United Nations System, as well as development and democratic

governance practitioners.

Similarly, it is hoped that these knowledge products could serve as reference in pursuing initiatives and

in seeking opportunities for replication. These can also be used to develop and support projects and

programs, as well as regional activities. These knowledge products are the result of partnerships with a

number of UNDP Country Offices, donors, consultants and associate experts, academic institutions and

civil society organizations. All helped to identify experiences that provide valuable practical information

relative to improving democratic governance and increasing transparency and accountability.

These knowledge products are not meant to be prescriptive. Rather, their aim is to:

Provide examples of transparency and accountability activities;

Generate discussion and policy dialogue;

Illustrate practices;

Present tools, methodologies, approaches and frameworks;

Highlight case studies;

Direct readers to additional resources.

Gerardo Berthin

Policy Adviser

Democratic Governance Area

Latin America and Caribbean Regional Service Centre, UNDP

Acronyms

CIDE Center for Economic Research and Teaching (Spanish Acronym), Mexico

LFTAIP Federal Law of Transparency and Access to Public Information (Spanish Acronym),

Mexico

NAAR North Atlantic Autonomous Region, Nicaragua

SAAR South Atlantic Autonomous Region, Nicaragua

IFMS Integrated Financial Management System,Guatemala

SAGSI Information Requests Management System (Spanish Acronym)

Acknowledgements

We thank Manoel Pérez, Luis Armando Amaya and Juanita Gómez for their collaboration in the

systematization of information and the preparation of figures. We also thank the team in charge of the

2010 Metrics of Transparency for the lessons learned in the diagnosis of the transparency system in

Mexico. Finally, we thank the UNDP Country Offices (Claudia de Saravia and Abelardo Quezada, PNUD

Guatemala; Miguel Calix, PNUD Honduras, Maribel Gutierrez, PNUD Nicaragua and Katyna Argueta

PNUD Panamá) for their valuable support during the research and for their inputs and

recommendations, as well as the various public institutions that enabled the work. Similarly, we thanks

the Advisory Committee (Gerardo Berthin, UNDP Regional Centre LAC; Diego Antoni, UNDP Mexico;

Alejandra Ríos-Cázares, CIDE and Guillermo M. Cejudo, CIDE) and in particular the UNDP Latin American

and Caribbean Regional Centre for its consistent support and guidance. Last but not least, Paola Gomez

of UNDP-Mexico and Maria Angelica Vasquez of the UNDP Regional Centre played a crucial role in the

management of the project.

Introduction

Access to public information has been recognized as one of the pillars of government accountability and,

therefore, has given a special impetus to legislative reform proposals in this area.1 However, few have

been the empirical studies of the various factors that contribute, in addition to good legislation, to the

success or failure of efforts to eradicate opacity in government.2

Based on the study of access to public information systems in four Central American countries and four

Mexican states, this report shows that regulations on access to public information are insufficient if

essential factors for the operation of this right. Such factors include archiving and documenting, the

creation and strengthening of institutions capable of enforcing the law, and the careful articulation of

processes and mechanisms to request and obtain information. As Christopher Hood pointed out, this is

the only way to evolve from a de jure to a de facto transparency.3

This report contains an analysis of how systems of access to public information operate in four Central

American countries (Guatemala, Honduras, Nicaragua and Panama) and four Mexican states (Chiapas,

the Federal District,4 Puebla and Yucatan). Based on recent experience in the analysis of systems of

access to public information on sub-national governments in Mexico, conducted by the Center for

Economic Research and Teaching (CIDE is its acronym in Spanish), this report examines key operational

aspects regarding the right of access to government information. Such aspects include the quality of the

normative framework, of institutions and processes, as well as an analysis of the information that is

actually provided by governments to citizens, both in response to specific requests and through the

Internet portals of public entities.5 In the eight cases, special attention was paid to the study of local

governments: Official web portals, as well as processes to address information requests were analyzed

in three municipal governments.

1Ackerman, John M., and Irma E. Sandoval‐Ballesteros. 2006. ‘The Global Explosion of Freedom of Information Laws.’

Administrative Law Review. 58(1): 85‐130; Bertoni, Eduardo Andrés. 2011. Libertad de información ¿tres palabras inofensivas? Leyes de acceso a la información y rol de la prensa. Washington: The World Bank. Michener, Greg, and Bersch, Katherine. 2011. The Quality of Transparency. Text presented at the Midwest Political Science Association, April; Banisar, David. Freedom of Information Around the World 2006. A Global Survey of Access to Government Information Laws. Privacy International 2006 [visit. Available at www.privacyinternational.org. 2Some exceptions can be found in: Alasdair Roberts. 2006. Dashed Expectations. Governmental Adaptation to Transparency

Rules, in Christopher Hood and David Heald (eds.)Transparency. The Key to Better Governance. Oxford: Oxford University Press, pp. 107-126; Pasquier, Martial, Nicolas Pauchard and Sarah Holsen. 2011. Resistance to transparency in Switzerland: a case study analysis of behaviors and justifications. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May; Ben Worthy. 2010. More Open But not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government. Governance 23 (4), 561-582; Guillermo M. Cejudo, Sergio López Ayllón and Alejandra Ríos Cázares. 2011. Assessing transparency across levels of government in Mexico. Rules, institutions, and practices. Paper presented in the First Global Conference on Transparency Research, Newark, NJ: Rutgers University, May. 3Hood, Christopher. 2006. Beyond Exchanging First Principles? Some Closing Comments, in Christopher Hood and David Heald

(eds.), Transparency: The Key to Better Governance. Oxford: Oxford University Press, pp. 211-225. 4Also known as Mexico City.

5The features, details and results of this research are available on the Website www.metricadetransparencia.cide.edu. A

summary of the study and considerations on the main findings can be found in Guillermo M. Cejudo, Sergio López Ayllón and Alejandra Ríos Cázares. 2011. “Diagnóstico de la transparencia en México. Lecciones de la Métrica de transparencia 2010.” Transparencia y privacidad. Revista mexicana de acceso a la información y protección de datos, 1, pp. 58-81.

In the following pages, after a brief presentation of the methodology, a detailed analysis of four

dimensions of access to information systems is provided: 1) the quality of the normative framework on

access to public information, 2) the information proactively presented in government´s web portals, 3)

an assessment of the process to request information and the type of responses, and 4) the analysis of

institutions which guarantee the right of access to information. Thereafter, and based on collected

information, this analysis helps identify areas of opportunity and risk that need to be addressed to

ensure and enhance access to public information. Thus, in the last section some recommendations are

provided to answer to two key questions: What are the most serious obstacles to the effective access of

citizens to public information? And, what are the most important challenges in the public information

access system?

Objective and Methodology

This report is developed from a methodological approach that allows the comparative study of four

Central American countries and four Mexican states (three states and the Federal District). The efforts’

specific objective is to identify common challenges, recurring problems and best practices in access to

government information in four Central American countries and four Mexican states. The selection of

cases was made thinking about maximizing differences in the development of legislation on access to

information and in the contextual conditions (political dynamics, economic and social development),

both among the four Central American countries and in the sub-national governments in Mexico.

As such, for each case, the following are analyzed: legislation on access to information based on

international standards and best practices;6 the institutional strength of the entities responsible for

enforcing the right of access to information; the process of requesting information based on a simulated

user exercise to assess response times and quality of information, and to identify good and bad practices

in the daily exercise of the right of access to information; and, government web portals, to analyze the

quality of the information provided and their user-friendliness.

For the analysis of the quality of legislation, a brief review of the legislative history (the evolution of

transparency laws, including laws of access to information and any additional relevant regulations) was

carried out, as well as a qualitative assessment of laws on access to information in each case. Similarly,

some comparable elements in legislative frameworks were quantified, which are used for contrasting

legal quality data with information about the operation of the access to public information system.

The second analytical component was the institutional dimension: an analysis of the institutional

framework responsible for enforcing the right of access to public information, including a brief historical

narrative of the evolution of this institutional framework and the analysis of the process by which a

citizen can appeal an access to information denial.

The last two components refer to the information that citizens actually get, through access to

information requests (the request process and the characteristics of the offices that receive the requests

6For example, the recently published Model Inter-American Law on Access to Public Information of the Organization of

American States. For more information, see: http://www.oas.org/juridico/english/ley_modelo_acceso.pdf

were analyzed, with emphasis on practices that facilitate or hinder access to information by citizens).

Also in this component, response quality and times were analyzed. With respect to government web

portals of public entities, the information available and its user-friendly accessibility were analyzed, as

well as the quality of information and how update it was. For both components, the actors we analyze

include the following agencies (or their equivalents):

Table 1: Analyzed Public Entities

1. Office of the President of the Republic

2. Ministry of Interior

3. Ministry of Finance

4. Ministry of Health

5. Ministry of Education

6. Ministry of Social Development

7. Ministry of Infrastructure

8. Legislative Branch (and Supreme Audit Institution)

9. Supreme Court (or its equivalent)

10. Three municipal governments:

a. One Large Urban Municipal Government

b. One Medium-Sized Semi-Urban Municipal Government

c. One Small Rural Municipal Government

In the following sections, the aggregate results of each of the components and a comparison of the eight

cases is presented.

Chapter 1

Legislative History The right of access to public information has a long history. While the first legislation on the subject

dates from 1756 in Sweden, the idea to create a legislation to support this right has become particularly

relevant in the last twenty years. Just between the years 2000 and 2005, 34 laws or decrees on

government transparency and access to public information were passed in different parts of the world.7

This impetus to recognize the right of citizens to access to public information has been particularly

intense in the Latin America and Caribbean region, where to date, fourteen countries already have a

national legislation that regulates government transparency and access to public information.8

One of the notable cases in this legislative development is Mexico. After 70 years of one-party political

domination at the end of the twenty-first century the country moved towards passing a series of

legislative reforms focusing on strengthening of government accountability. The Federal Law of

Transparency and Access to Public Information approved in 2002 (Ley Federal de Transparencia y Acceso

a la Información Pública, LFTAIP), was part of that legislative effort and constituted the foundation for

new institutions in the area of government transparency and has forced adjustments in federal agencies.

The LFTAIP has also had direct impact on state and municipal governments throughout Mexico.

Although there were transparency initiatives in some sub-national governments before the approval of

the LFTAIP, the federal legislation was the first law to be enforced across the country. In fact, after the

approval of the LFTAIP, the 32 Mexican sub-national governments (31 States and the Federal District)

gradually adopted some type of regulation on the matter; so by 2005, 25 States had recognized the right

of access to public information in their legal framework. The problem, however, was that not all sub-

national statutory provisions included the same principles or criteria, thereby creating an important

disparity in the exercise of the right of access to public information. In response to the problems that

arose from the heterogeneity of principles and criteria, a plural movement was created, which included

state governors, academics and civil society organizations, whose main goal was to push a constitutional

reform to establish the minimum principles that all Mexican states should incorporate into their

legislation as well recognize processes regarding government transparency. The reform was passed in

2007, and among its initial mandate was to grant exactly one year for all States to adjust the

corresponding legislation. To date, the 31 states and the Federal District have a transparency law and,

with some exceptions, constitutional principles have been included in local regulations.9

7Michener, Greg. 2011. “FOI Laws around the World”, Journal of Democracy, Vol.22, No. 2, April, p. 148.

8The most important pending cases, because of their dimensions, are Argentina and Brazil, the large countries of the Southern

Cone, where national congresses are discussing bill paths. Michener, Greg: The Surrender of Secrecy: Explaining the

Emergence of Strong Access to Information Laws in Latin America. URL: http://gregmichener.com/Dissertation.html See: July

13, 2011. 9 One of the exceptions to the amendment required by the constitutional reform is the federal law itself.

Despite the standardization effort prompted through the constitutional reform, there remain important

differences in the country. For example, the 2010 Metrics of Transparency10 found that the quality of the

Federal District’s legislation was evidently higher than the regulation in the northern state of Baja

California. For this report, four Mexican States were selected (Chiapas, The Federal District, Puebla and

Yucatan), which illustrate different legislative development cases in Mexico. Of the four states analyzed,

the Federal District was the first one to adopt a transparency law (2003), which was subject to several

reforms leading to the approval of a second legislation (which revoked the first) in March of 2008. This

new law (with its corresponding reforms) is one of the most advanced legislations in the country.11

Puebla and Yucatan passed legislations on the matter in 2004, while Chiapas did it only in 2006.

Although it is not possible to make a detailed narrative of each of the State´s legislative history, it is

important to note that that these laws were passed in various political environments. This is relevant

because access to public information is an issue which, in principle, requires political bargaining. While

in the Federal District the original law and subsequent reforms were promoted and approved by the

Democratic Revolutionary Party (Partido de la Revolución Democrática), the “leftist” party in Mexico,

which controlled the executive and the legislative branches of government, in the case of Puebla, the

legislation was passed under the leadership of the Institutional Revolutionary Party (Partido

Revolucionario Institucional), which had retained power for more than seven decades in the State,

including a legislative majority). In the case of Chiapas, the legislation emerged from a broad political

plurality, while in Yucatan; the legislation was welcomed in a context of dominance by the National

Action Party (Partido Acción Nacional), the “rightist” party in Mexico. What was just described shows

that the approval and promotion (and sometimes obstruction) of transparency is not the prerogative of

a specific party or a particular ideology, nor a characteristic of a particular political situation.

In the Central American countries analyzed in this report, the situation is similar, except that, according

to the background papers, which support this report, the approval of the legislation was framed by a

process of institutional transformation that was primarily focused on the fight against corruption. In

Honduras, Guatemala and Nicaragua, the legislation was passed during the first years of the presidential

administration, when none of the three presidents in question (Manuel Zelaya, Álvaro Colom and Daniel

Ortega) had legislative majorities. In Panama, the law was passed in 2002 during the last third of the

presidential period of Mireya Moscoso, when she had the support of the National Assembly, but within

a polarizing political context that was the result of opposition to regulation in 2004 (later revoked) that

imposed restrictions to the right of information.12 Figure 1 presents a summary of the brief legislative

history of the 8 cases.

10

www.metricadetransparencia.cide.edu 11

In June 2011, the Legislative Assembly of The Federal District passed a new law on transparency and access to information which corrects problems detected in the previous law. 12

See Michenerp. 307:URL http://gregmichener.com/Greg%20Michener%20Dissertation--The%20Surrender%20of%20Secrecy%20in%20Latin%20America--2010.pdf

Figure 1: Legislative History

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Chiapas

Federal District **

Puebla

Yucatan

Guatemala

Honduras

Nicaragua

Panama

** Federal District passed a new law on transparency on March 28, 2008, which revoked the original law of May 8, 2003.

Chapter 2

Dimension 1: Normative Framework

In the analysis of government transparency and access to public information the study of current

legislation has been the focus. It is clear that the mere existence of a law on access to information says

little about the quality of the regulatory framework in general. The analysis of this dimension seeks to

identify basic characteristics that would illustrate law quality in terms of the effective right of access to

public information.

The analysis of the laws presented in the following pages is not intended to be prescriptive or

exhaustive. It is simply a general assessment of the legislation of the eight case studies. The goal is to

offer a panoramic snapshot that helps to identify the main challenges and lessons in implementing the

regulation of access to public information in the eight cases analyzed. This effort departs from a basic

premise: although is essential to have legislation on access to public information, it is not enough to

have a good law to guarantee an effective exercise of this right. It is also necessary -as mentioned in the

introduction- an institutional framework and a set of management practices that harmonize and

strengthen government transparency in daily governmental activities. That is, although a strong

legislation reduces the likelihood of facing problems during the implementation of a public policy on

access to information, it does not replace it, nor does it replace all the elements that constitute a

transparency system (which goes beyond the right of access to information). In the same logic, the

negative consequences of a bad legislation may be attenuated in practice by institutions or actors who

manage to adjust routines and procedures to overcome legal weaknesses and, thereby, facilitate citizen

access to public information.

In this report, the analysis of the normative framework includes ten categories, or key elements,

considered to be necessary to consolidate a strong legislation on access to public information.13 This

classification is based on the study 2010 Metrics of Transparency which assessed all Mexican legislations

on this subject according to the principles contained in article 6th of the Mexican Constitution. The

methodology of the 2010 Metrics of Transparency also followed the guidelines of the Código de Buenas

Prácticas y Alternativas para el Diseño de Leyes de Transparencia y Acceso a la Información Pública

(Code of Good Practices and Alternatives for the Design of Laws of Transparency and Access to Public

Information),14 developed by Mexican and international scholars.15

13

It is important to mention that these categories are not the same as those employed in the implementation of the Metrics for Transparency 2010. 14

See Sergio López Ayllón, 2007. In the 2010 Metrics for Transparency, it is explained that the “Code is the result of a consultation and consensus exercise led by the Commission on Public Information (Comisión Mexicana de Acceso a la Información Pública) and the Federal Institute for Access to Public Information (Instituto Federal de Acceso a la Información), and is technically developed by a group of researchers from the Instituto de Investigaciones Jurídicas (Institute for Legal Research) of [Universidad Nacional Autónoma de México (National Autonomous University of Mexico) and Center for Economic Research and Teaching (Centro de Investigación y Docencia Económicas)” see 2010 Metrics of Transparency, p. 15.

The ten elements of analysis were:

1. The legislation has constitutional support that defines access to information as a citizen´s right.

2. The legislation clearly identifies government actors who have the obligation to provide

information.

3. There is an information catalog that must be available without any type of request (i.e.,

identification of a list of information that should be public).

4. The type of information that may be considered as reserved or confidential is accurately

regulated.

5. The process to classify certain information as reserved or confidential is accurately regulated.

6. There is an administrative (or judicial) process available to citizens in order to demand the right

of access to information.

7. There are provisions regarding administrative records.

8. A guarantor or specialized agency is established to verify compliance with the obligations

regarding access to information.

9. The mechanisms available to citizens for them to request information are clearly defined.

10. There are administrative responsibilities (and possible sanctions) for public officials who fail to

provide information to citizens.

Each of these elements, however, is weighted in a specific order to reflect its relative importance within

the regulatory framework (see Table 2). Thus, the elements related to “the type of public information,

guarantor agency, as well the access process and the appeal, has a relative higher importance.” In

contrast to the original methodology, at an intermediate level, the existence of constitutional support

for access to information as a citizen’s right is also weighted.16 Finally, there are "aspects related to the

organization of information and institutional design," or incentives. The following table summarizes the

weight used. For a better understanding, an index was created which adds the result of each of the

categories analyzed and produces a value score in a scale between 0 and 1, where 1 is representative of

a law which fulfills, in general, all the categories of analysis.17

15

A note of caution is worth noting here: The following analysis is restricted to legislative dispositions, partially leaving aside the study of regulations and other normative dispositions. 16

In the original methodology, this category received the lowest weigh since it referred to principles raised by the Federal Constitution; the level of demand in terms of legislative development was lower. As this analysis is not restricted to Mexican states, it was considered prudent to give greater weight to these elements. 17

The score achieved should not be read, of course, as a quality rating of the law; it is simply a reflection of the categories listed in the legislation.

Table 1: Weight of the Normative Analysis

Code Category Weight

A There is an information catalog that must be available

without any type of request (public inquiries) 1

B There is an administrative (or judicial) process available to

citizens in order to demand the right of access to information 1

C

A specialized agency is established to verify compliance with

the obligations regarding access to information (transparency

institution)

1

D Clearly defined mechanisms available to citizens in order to

request information 1

E The legislation has a constitutional support that defines

access to information as a civil right 0.6

F The legislation clearly identifies government actors who have

the obligation to provide information 0.6

G The type of information that may be considered as reserved

or confidential is accurately regulated 0.3

H The process to classify certain information as reserved or

confidential is accurately regulated 0.3

I There are provisions regarding administrative records 0.3

J

There are administrative responsibilities (and possible

sanctions) for public officials who fail to provide information

to citizens

0.3

Table: 2 Categories of Analysis and Summary of Results Code

(weight) Honduras Guatemala Nicaragua Panama Chiapas

Federal District

Puebla Yucatan TOTAL

A

There is an information catalog that must be available without any type of request (public inquiries)

8

B

There is an administrative (or judicial) process available to citizens in order to demand the right of access to information

8

C

A specialized agency is established to verify compliance with the obligations regarding access to information (transparency institution)

5

D

Clearly defined mechanisms available to citizens in order to request information

8

E

The legislation has a constitutional support that defines access to information as a civil right

7

F

The legislation clearly identifies government actors who have the obligation to provide information

8

G

The type of information that may be considered as reserved or confidential is accurately regulated

8

H

The process to classify certain information as reserved or confidential is accurately regulated

8

I There are provisions regarding administrative records

7

J

There are administrative responsibilities (and possible sanctions) for public officials who fail to provide information to citizens

8

Total 0.906 0.844 0.844 0.797 1.000 1.000 1.000 1.000

Table 2 summarizes the overall results and shows the heterogeneity of the standards, for while Mexican

laws comply with the general categories of analysis, Central American laws are relatively behind in

aspects that, as discussed below, are considered fundamental.

As is evident, most of the laws analyzed incorporate the categories of study; nevertheless, in the case of

Central American laws, the absence of specific regulations occurs particularly in the categories that

receive the largest weight in the analysis. There are two important considerations in regards to the gray

cells shown in Table 2.

The first consideration is regarding the lack of constitutional support in the Honduran case. Although it is

possible to argue that not all constitutional laws emanate or are found in the Constitution -since general

legislation and/or other regulatory provisions can recognize or give constitutional character to a

particular right- it is difficult to argue that the guarantee of protection to the information right is

equivalent to other cases. If what is known as a constitutional block is neither recognized nor delimited,

the protection of the right of access to public information could be made implicit rather than explicit.18

Still, it is important to notice that even though the law is relatively new, it already has a detailed

secondary regulation.

The second consideration is much more complex and it refers not so much to the absence of a guarantor

entity in the cases analyzed, but rather to the existence of an institutional design, even a complex one,

that guarantees the due respect to the right of access to public information of all citizens. Two

weaknesses were identified: on the one hand, there is a dispersion of authority, and on the other there

is a saturation of responsibilities in specific institutions. Both are counterproductive.

The first case is mainly represented by Panama, where at least four institutions or authorities were

identified that are in charge of monitoring the right of access to information (the National Transparency

Council Against Corruption, the Ombudsman, the National Assembly and the Supreme Court). The main

problem is that far from strengthening the protection of the right, the existence of multiple authorities -

with diffuse responsibilities- only creates uncertainty in the procedures. Moreover, although Panama

recognizes a Habeas Data to interpose a motion, because of the characteristics of the process it

constitutes an obstacle for the user as it contradicts the principle of “timeliness of information,” one of

the most important principles in the right of access to information (See Annex B-1). The Habeas Data

does not seem to guarantee this principle, as its resolution depends on an authority that, no matter the

good will and good actions, faces a complex agenda (as all national supreme courts in the region).

Apparently, the number of times Habeas Data has been used is particularly low and most likely this is

due not to an effective resolution of requests for information or efficiency of the public information

agencies (as discussed in later sections), but to the dispersion of responsibilities which creates significant

confusion regarding who is the responsible authority and guarantor entity. There seems to be no clarity

18

For example, very recently, the Supreme Court confirmed that the treaties and conventions on human rights were part of the constitutionality of the Mexican law. Consequently, in early July this year, the same Court issued orders that limit military jurisdiction in the investigation and prosecution of the common law. Since 2009, the year in which the Inter-American Court of Human Rights ruled the Rosendo Radilla case, there had been pressure to limit the guarantees of military jurisdiction. This is just one example of the importance of recognizing a right under the constitution or to give explicit recognition to the elements that are part of the constitutional block.

for the Panamanian citizen on what to do, where to go or whom to call. The simplicity in the definition

of actors and responsibilities is a key factor for an effective right of access to information.19

Somehow, Nicaragua presents a similar situation as there is not one, but several responsible or

guarantor entities, known as Coordinating Units for Access to Public Information. There is a Coordinating

Unit for each State branch, one in the two autonomous regions (NAAR and SAAR), in addition to those

which correspond to the 153 municipalities. While the process to create these Coordinating Units is

regulated, to date none have been created. Among various potential reasons, a first hypothesis that can

be advance here is that there are no incentives (positive or negative) for the heads of each of the State

branches, the two autonomous governments (NAAR and SAAR) and/or the municipalities to fully comply

with the mandate. At this point, it is useful to mention that one of the most important principles for the

operation of the responsible and/or guarantor entity is political, operational and management

autonomy.20

The second problem identified (saturation of responsibilities) is presented in the case of Guatemala,

where the Ombudsman is responsible for ensuring the right of access to information. As it is evident, the

Ombudsman Office assumes this task as an additional responsibility. While access to public information

is a fundamental right, it is important to recognize that the logic behind it is specific such that the

protection of all fundamental rights by the same institution contradicts one of the key principles of

ensuring the right of access to information; that is specialization. In this sense, the experience of the

Mexican state of Queretaro is illustrative.

In March of 2007, as an initiative of the Executive Branch, there was an attempt to merge the State

Human Rights Commission and the State Commission on Government information. The reform led to a

motion of unconstitutionality, which was settled by the Supreme Court in September 2008.21 The

Mexican Supreme Court argued that “the merger of the state human rights agency and the access to

information agency in Queretaro (is unconstitutional), because it affects the principles of autonomy and

specialization recognized in article six of the State Constitution,” adding that “the absence of bilateral

autonomy calls into question the effective, specialized, independent and impartial protection of the

fundamental rights to be protected by each agency.22” By way of explanation, the judges argued that

“the State Human Rights Commission, (...) monitors that individuals’ guarantees are not violated, while

the State Commission on Government Information controls access to the data of any agency, including

the first.”23 While the ruling of the Supreme Court is based on the recognition of autonomy that the

constitution of Queretaro itself establishes for both institutions (at different levels), it is important to

take these considerations into account as an invitation to think on the importance of having specialized

19

In the section on analysis of the responsible/guarantor entity, there will be further analysis on this topic. 20

In Nicaragua, there is also the option of demanding the right of access to information by way of administrative litigation before the Administrative Chamber of the Supreme Court. In such case, it does not require the exhaustion of the administrative process. In practice, this mechanism is not affordable for citizens, although it is included in the Law. 21

Refers to the unconstitutional actions 76/2008 and its accumulated 77/2008 and 78/2008. 22

See the note of Julián Sánchez “Inconstitucional, fusión de organismos de derechos humanos y transparencia” in El Universal, published on September 25, 2008. URL: http://www.eluniversal.com.mx/notas/541555.html 23

Jesús Aranda “Ilegal, fusionar CEDH y órgano de transparencia de Querétaro” in La Jornada, September 24, 2008 http://www.jornada.unam.mx/2008/09/24/index.php?section=estados&article=036n1est

institutions for each of these topics. Figure 2 shows the overall results of the analysis so far, and allows

for a comparison among the different cases.

Figure 2: Summary of the Normative Analysis

To conclude this section, we present the detailed results of normative framework analysis conducted in

Metrics of Transparency of the four Mexican states included in this report (Figure 3). This data follows

the original classification and weights. The goal is to show that through the detailed analysis of the

normative framework, k, it is still possible to find additional differences and weaknesses in State laws on

access to public information. It would be interesting to carry out a deeper analysis of the normative

framework in the Central American countries to accurately identify risk and opportunities. To better

understand what is shown in the figures it is important to mention that the assessment is organized

according to an index scale, where 1 is the ideal score.

0 0,2 0,4 0,6 0,8 1

Panama

Honduras

Guatemala

Nicaragua

Chiapas

Distrito Federal

Puebla

Yucatán

0,796875

0,90625

0,84375

0,84375

1

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Figure 3: Normative Analysis of the Four Mexican States24

Figures presented in this section illustrate two relevant aspects of analysis. On the one hand, the main

weakness of the laws of Central American countries is the absence of an autonomous guarantor agency

with specific responsibilities. On the other hand, the figures also illustrate that even Mexican laws which

have a perfect score (first exercise), show some disparities when making a detailed analysis of each of

the categories. In this sense, it is important to emphasize that the most complicated issues in the

homogenization of laws in Mexico are those related to (1) the specific definition of the agencies and

actors subject to the access to public I information law (an issue which, incidentally, is also a weakness in

the legislation of Central American countries, as will be seen in subsequent sections of this report), (2)

the accuracy and scope of public information, (3) the regulation on how to determine confidential

information and (4) the characteristics of the appeal process and/or procedures.

An additional issue is related to archival regulation and promotion. Although it seems obvious, it is

important to remember that there is no access to information without information. Although most of

the laws analyzed include some kind of provision regarding archiving, these are short-range and/or non-

binding. It is important to update and/or complement the regulations in this area (for example, in

Panama, where the corresponding law dates back to the fifties), and strengthen the capacity of

responsible/guarantor agencies (or institutions responsible) to monitor the proper documentation of

government decisions and for safeguarding information related to all public administration aspects. This

does not exempt (on the contrary) offices and agencies from the legislative and judicial branches, as well

as sub-national governments which are usually the ones with weaker capabilities.

24

A more detailed explanation is found in the general report, available at www.metricadetransparencia.cide.edu. There is an executive summary booklet in English.

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Chiapas Distrito Federal Puebla Yucatán

Chapter 3

Dimension 2: Government Web Portals

Government Web portals are a key tool for exercising the right of access to information. While it is true

that in countries where Internet service coverage is limited, the scope and reach of these portals is

restricted, it is also true that web portals can be an effective tool when they are complemented with

other mechanisms of access to information.25 Therefore, to analyze a web portal-both in terms of the

quality of information, as well as its user-friendly accessibility, a good proxy indicator is the overall

operation of the system in terms of making public information available to citizens.

To assess the web portal quality (Table 1) of the public entities mentioned, (or their equivalent, as

described in Annex A) there were two reviews: first and third week of April 2011. The review was

conducted according to weather the web portal included:

1. A visible “transparency” link in the home page.

2. Information on the institution’s regulatory framework.

3. Information on the organizational structure of the public office.

4. A report of activities and progress in the achievement of goals and objectives (results).

5. Personnel reports, directory of public officials and salaries.

6. Information on the institution’s budget.

7. Budget execution reports.

8. Information on contracts and public works.

9. Information on the institution’s audit reports.

10. Guidance on how to request information (other than information included in the portal).

11. A contact to obtain information regarding the web portal operation.26

To evaluate each indicator, a point (1) was assigned if the portal had the full information; half a point

(0.5) if it only had partial information; and, zero (0) if the information was not available. When that

25

Helen Darbishire. 2010. Proactive Transparency: The Future of the Right to Information? A review of Standards, Challenges, and Opportunities. Washington DC, the World Bank (Access to Information Program Working Paper). 26

The legal framework regarding public information varies depending on the country. For example, in Guatemala the 11 topics to be assessed are included within a catalog of obligations established by the Ley de Acceso a la Información Pública (Law for Free Access to Public Information) as basic information. In contrast, in Honduras at least three of these indicators do not have legal support (for example, internal audit reports are not part of public information).

information was not found in the web portal, but it had a link to a different web portal that gathers such

information, the rating was the same. The reported value is the average of the two reviews. Figure 4

shows the results:

Figure 4: Average per Question in the Four Central American Cases

Three findings stand out: 1) there is a link from the official site to the transparency page; 2) all

applicable legislation is included; and 3) there is a presentation of the organizational structure. However,

web portals have rarely include information regarding audit report to which public agencies have been

subjected. This is a serious absence that threatens the notion of transparency as a tool for government

accountability. The same can be said about information regarding the achievement of goals and results.

Without a doubt, citizens will have more interest in knowing the results of government actions than

knowing organizational structures or laws.

Also noticeable are findings regarding what was not found. For example, information on how to make a

request for access to information, if such information is not found in the website. This is particularly

important since these two instruments (a website and a request of information) should have automatic

complementarities. When a citizen does not find certain information on the site, he/she should be able

to easily know the alternative means to obtain it.

Beyond these general findings, the analysis also shows considerable variations between the public

entities.

0 0,1 0,2 0,3 0,4 0,5 0,6 0,7 0,8 0,9

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Figure 5: Average Score per Agency in the Four Central American Cases

Note: Nicaragua does not have Ministry of Public Works

The Ministry of Finance (or its equivalent) gets on average (and in three of the four countries) the highest

rating. This is explained not only by the traditional technical sophistication of these ministries, but also

because, in public discourse, the first reference of access to information and transparency has to do with

financial and budgetary issues, which happens to be a key area of responsibility of these ministries.

Not surprisingly, small rural municipalities obtained low scores. In two of the four countries (Panama

and Honduras), the municipalities under study (Atalaya and Sabanagrande, respectively) did not have a

web portal, so their score was 0. In this regard, the Nicaraguan municipality, Muelle de los Bueyes,

positively stands out. This small rural municipality reached the third highest score in a country where

there are still big challenges for proactive transparency. As it will be discussed below, this is similar to

what happened in the Mexican state of Puebla where the capital city has one of the highest scores,

despite having legal and political environments that were not conducive to transparency. Both examples

show that proactive transparency is not primarily a problem of technology or budget resources, but of

political commitment and public vocation in government actions.

In contrast, the sites of the presidency have the second lowest rating. The head of the Executive Branch

is not only legally required to provide information to citizens on its websites, but also, in order for the

system of access to information to be further legitimated and work as a whole, should serve as example

for the rest of the public administration and for the other branches of government. If lack of

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transparency and access to information is perceived in the Presidency, it can be used as an excuse for

less commitment to access to information in other governmental sectors. For example in Guatemala,

the website of the Office of the President practically does not provide the information required by law.

Nicaragua also got a low score, as the presidency does not have a transparency website. The link to its

website -related to the Law on Access to Public Information (Ley de Acceso a la Información Pública) -

directs users to the Presidency’s Secretariat for Social Communication, which includes data of that

Secretariat and not of the presidency. This is an important challenge, where it is necessary to

consolidate a website that allows citizens to have greater knowledge of goals achieved by the Executive

Branch.27 As shown in Figure 6, the lowest ratings corresponded to the two ends of the institutional

spectrum: in Nicaragua and Guatemala the lowest score corresponded to the Presidency of the

Republic, while in Honduras and Panama the lowest value corresponded to the rural municipalities

analyzed (Sabanagrande and Atalaya, respectively).28

Figure 6: Average Score per Agency (2 visits) in the Four Central American Cases

Note: Nicaragua does not have Ministry of Public Works

27

On the other hand, in regards to the legislative branch, it is noteworthy to highlight the efforts that have been made to improve the website of the National Assembly and have transparency in the process of formation and passage of the law. See the Project “Nicaragua: Governance Indicators to Strengthen Public Policies” –UNDP- Nicaragua. 28

In the case of Panama, in regards to local government, there is an initiative currently running, by the National Authority for

Government Innovation, from the e-MuNet project (Efficient and Transparent Municipalities), an attempt to modernize the

municipalities by promoting the creation of portals in municipal governments.

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Guatemala Nicaragua Panamá Honduras

To find a reference of heterogeneity that can exist in the operation of the system of public access to

information, even within the same country, Figure 7 shows the data for the four Mexican states

analyzed. The Federal District stands out due to its high ratings (explained by the effort of the local

guarantor agency to ensure the government updates its web portals regularly). Puebla also stands out

due to the low quality of its websites. However, as mentioned above, many municipalities in Puebla

have higher ratings higher than the average for the state and the capital city registers even higher

ratings.

Figure 7: Average Score per Agency (2 visits) in the Four Mexican States

Beyond the hard data (which have to be taken with caution, given the limited observations with which

they are developed) an analysis was also carried out on what can be considered as good and bad

practices in the use of web portals. The outcome is analyzed below.

The case of Guatemala stands out as good practice, where all ministry web portals have a similar format

to meet their proactive transparency obligations both in the signaling of the transparency link, as in the

organization and presentation of information. This characteristic facilitates citizen inquiries, as they do

not need to be familiar with different systems and presentations each time they access a particular

website. This is a practice that other countries could adopt to facilitate citizen access. Panama has just

begun a similar process. In March 2011, the National Authority for Government Innovation issued the

standards for government agency websites, which will reduce the proliferation of differentiated

structures and content and will promote the use of websites to simplify bureaucratic processes in

government agencies.

Similarly, and also in the case of Guatemala, the relevance and updated information can be highlighted.

Information can show not only annual budget allocations, but also changes made throughout the period.

This is possible because inputs are regularly updated, thanks to Guatemala´s Integrated Financial

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Executive Branch Decentralized agencies

Legislative Branch Judicial Branch Autonomous bodies

Municipalities

Chiapas DF Puebla Yucatán

Management System (IFMS), which keeps an integrated accounting system that covers the entire public

sector.

The four Central American countries have an innovative practice for the publication of government

procurement, one of the areas where transparency has greater potential to reduce discretion in

awarding contracts and corrupt practices in government procurement. Nicaragua has an Information

Registry of the Public Sector Procurement Management System, which includes updated information on

all public sector administrative contracts. The portal Nicaragua Compra, www.nicaraguacompra.gob.ni,

by the Procurement Office of the Ministry of Finance, allows citizens to obtain information on

government procurement processes, from current contracts, contracts concluded during the year, a

shortcut to the price list, as well as announcements of acquisitions and the system of prohibitions.

Something similar happens in Guatemala with the Guatecompras system

(http://www.guatecompras.gt), and in Panama with Panamá Compra

(http://www.panamacompra.gob.pa/portal/PortalPanama.aspx), a system developed to increase

transparency, effectiveness and efficiency in government procurement. In Panama there is also a

Website http://www.panamatramita.gob.pa/, which integrates a number of processes and services that

different government agencies offer citizens. Finally,

http://www.presidencia.gob.pa/transparencia/planilla/frames/planilla-presidencia02.html, provides

information on government positions, people who occupy them, their remuneration and their

employment relation with the State. It is about initiatives of transparency portals with reference to

specific topics, which make it easier for citizens to search for information.

Among the most important challenges to be solved are:

a) Provide complete and updated information especially related to the exercise of responsibilities.

While budget information is relatively complete and current, this is not the case with information

related to the performance of activities, outcome indicators, results and goal compliance.

b) Differentiate official institutional web portals from public relations/communications web portals. In

many cases, particularly in Nicaragua, web portals do not display information about budgets, activities

or personnel.

c) Link governmental web sites with systems to request public information so that, from the site itself,

people are able to know the procedure to request information and the necessary requirements.

Chapter 4

Dimension 3: Simulated User Exercise

Beyond the normative framework, institutions and web portals, the efficiency of an access to public

information system can be measure by the ability of public entities that are subject to the law to provide

a timely and quality response to citizens’ requests. No matter how extensive the proactive transparency

is, the perception of access to governmental information resides in every citizen’s ability to request any

public information that is defined by law and obtain it through a simple process. Moreover, every citizen

request should fulfill criteria of relevance and importance. In other words, transparency is not only the

existence of a generic right, of institutions that promote the exercise of this right, or of web portals

containing information the government is obligated to make available. More than anything, it is the

possibility that any citizen can activate a request for information process that ends with a satisfactory

response.

To carry out an assessment of the way in which governments in the four analyzed countries processed

requests from their citizens, a simulated user exercise was launched to measure response time, steps in

the process and the quality of the response.

Two requests were made to each of the public entities listed in Annex A. The process involved in the

requests was:

1. Requesting the official authorized and executed budget for 2010 of the corresponding institution,

disaggregated by the standard budget items in each country.

2. Requesting the annual salary of the head of the institution.

For every request, a record was kept of each step of the process: request date, notification date,

extensions, costs or clarifications (if any), response date. Besides the process and periods of time, the

quality of the received information was also analyzed using the following scores: one point (1) if the

information received was complete; half a point (.5) if only one of the elements of the request was

missing; zero (0) in every other case (when the information was incomplete, when it was declared

inexistent, reserved or confidential, when the request was not answered correctly, when there was no

response, or when it was not possible to file the request).

This appraisal is based on two premises: that the information is public and that the office to which it was

requested has the obligation to provide it and to have a mechanism to process the request. The exercise

follows the logic of a citizen who is searching for public information. Beyond legal restrictions,

administrative difficulties or procedural complexities, the importance for this analysis is whether the

citizen received the information or not, if it was updated and complete, and how long it took.

Figure 8 shows the general results for the four analyzed countries. The variation, as shown, is significant.

The most important finding for the purposes of this analysis (in spite of the limited number of

observations) is not the aggregated data but the possibility of identifying the practices that explain these

differentiated outcomes.29

Figure 8: Average Score of Responses for the Four Central American Cases

These results also hide the dispersion within each country, since there were significant variations

regarding the type of public office, as shown in Figure 9.

Figure 9: Average Response Score for the Four Central American Cases

29

A graphic representation of the request process can be find in Annex B

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Office of the President of the Republic

Ministry of Interior

Ministry of Finance

Ministry of Health

Ministry of Education

Ministry of Social Development

Ministry of Public Works

Congress

Supreme Audit Institution

Supreme Court

Municipality of the capital city

Middle-sized urban municipality

Small rural municipality

With the exception of Panama, all countries had public offices with the highest and lowest scores: public

offices that fully answered the requests and those that did not do so (and that, as will be shown below,

did not respond or even accepted the request). What this data shows is that this is a structural

challenge, and validates the premise that the requested information was indeed public and available.

What are different are the practices to request information. A point that deserves specific attention is

the large number of public offices where none of the two requests could be filed, or that did not provide

a complete response and, therefore, obtained a “0” score: 7 in Honduras, 10 in Nicaragua, 4 in

Guatemala and 11 in Panama (out of a total of 13 public offices in each country).

As shown in Figure 10, there are also significant differences in the response time. In some cases an

immediate response was obtained (one working day) while in others the waiting period exceeded 20

working days.

Figure 10: Response Time (Business Days) in the Four Central American Cases

The entries with no scores in Figure 10 refer to requests that were not responded at all. This is, without

a doubt, the main problem in the region: the frequent absence of mechanisms to receive process and

respond to information requests. Among the main difficulties found were:

1. Requirements to fill the request. For example, in Panama, even when the law authorizes any

person to make information requests, without presenting any explanation or reason, Article

6 of the law states that all requests must have (among other things) the identity card

number and a telephone number where the person can be reached –which eliminates the

anonymity and can be discouraging.

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Honduras Nicaragua Guatemala Panama

2. Little clarity on who is in charge of receiving the requests. As was mentioned in the previous

section, a large part of the web portals do not have information about who is the officer in

charge of receiving a request of access to information –and where to find her/him. This

represents a potential barrier for citizens to request information, because they must have,

in advance, information about how the corresponding public office works. The case of

Nicaragua stands out in this aspect, because it was difficult to identify the person in charge

of receiving the information and, therefore, the requests could not be filed. In many cases it

was necessary to move among different offices/units, because there was no information on

who was responsible for access to information requests. A similar problem was found in

Panama, since the creation of a unit dedicated entirely (or even partially) to attend requests

was not foreseen. Requests must be processed in reception/correspondence office.

3. Avoiding the reception of requests. In many public offices of the countries analyzed, the

petitioners experienced long waiting periods and arbitrary decisions to avoid receiving the

requests, claiming that the people in charge of the task were not in the office and,

therefore, the requests could not be formally received. In other cases (such as in the

Ministry of Education of Nicaragua), requests were received, but without delivering any

document or official stamp to verify the reception. Finally, there were times in which the

requests had to be reformulated (for example, so that they could be addressed to the

highest authority in each office), and read and reviewed by several officers before being

accepted.

4. Obstacles to deliver responses. Many difficulties were found in the Municipality of Santa

Catarina Pinula, Guatemala for example, to obtain information. “Even with the constant

requests, an excuse was always given by telephone; one of the excuses was that it was

necessary first to explain the use to be given to the information requested (which is not a

requirement according to the law); then, they stated that the type of information was

confidential (when according to the law it is public information); and finally, that a

photocopy of the applicant’s identity card had to be presented, which is not a legal

requirement either.”30 A response was never received.

5. Inefficient electronic resources. In many of the countries, apparently, there is a mechanism

to process requests through e-mail, but in reality, most of the time this mechanism did not

provide any response (or, at least, an acknowledgment of reception). It is necessary to

create mechanisms, other than officers’ e-mails, to process requests. For example, the

Information Requests Management System (Sistema Administrativo de Gestión de

Solicitudes de Información -SAGSI)) exists in Guatemala. It is a homogeneous system, already

being used in many ministries, which, if operating correctly, could make the processing of

the information requests easier.

30

José Antonio Pérez, "Guatemala: el acceso a la información pública," background paper for this analysis, 2011.

Request processing in the four Mexican states shows a significant difference (Figures 11 and 12

respectively). In the four cases, there are institutionalized processes to attend information requests. The

low scores in most cases resulted from the low quality of the responses, and not from the impossibility

of filing the requests.

In the four Mexican states there is a standardized procedure (at least within the Executive Branch) to

process information requests. In all public departments there is an office designated exclusively to

receive, process and respond to these requests. Without a doubt, institutional strengthening hast to be

the next step in the building of effective transparency systems in Central America: there is no need to

change laws, what it is necessary is to change procedures, routines and behaviors. As stated by Mauricio

Merino, it is all about transforming transparency into a public policy.31 In this aspect, the experience of

Guatemala is noticeable, because this country –even with a newly created legislation-, has been able to

build an institutional structure to process information requests. All central government entities (in the

three branches of the State) and decentralized institutions have established specific units to process

information requests. Also, internal officers’ networks have been created within each department, to

work as a link to provide the information.

Figure 11: Average Response Score per Public Office for the Four Mexican States

31

Merino, Mauricio. 2006. "Muchas políticas y un solo derecho" in Democracia, Transparencia y Constitución. Propuestas para un debate necesario, edited by Sergio López Ayllón. Mexico: UNAM - Instituto Federal de Acceso a la Información Pública.

0

0,1

0,2

0,3

0,4

0,5

0,6

0,7

0,8

0,9

1

Chiapas Distrito Federal Puebla Yucatán

Office of the Executive

Secretariat of Government

Finance Secretariat

Social Development Secretariat

Public Safety Secretariat

Secretariat of Health

Public Education Secretariat

High Justice Tribunal

Congress

Supreme Audit Institution

Transparency Commission

Electoral Institute

Human Rights Commission

Water Commission

National System for Integral Family Development Municipality of the capital city

Middle-sized urban municipality

Small rural municipality

Figure12: Response Time (Business Days) in the Four Mexican States

0

5

10

15

20

25

30

35

Off

ice

of

the

Exec

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at

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nst

itu

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on

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ute

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man

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on

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m f

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of

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-siz

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rban

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Smal

l ru

ral m

un

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Chiapas Distrito Federal Puebla Yucatán

Figure 12: Tiempo de Respuesta (días hábiles) por Oficina Pública para los Cuatro Estados Mexicanos

Chapter 5

Dimension 4: Institutional Capacities of the Responsible/Guarantor Entity

In the right of access to information analysis, special attention has been given to the characteristics of

the legislation and, with less emphasis, to the requirements and specifications of its implementation. An

equally transcendent aspect is the one regarding the authorities that are responsible to guarantee

and/or enforce this right. Paraphrasing Laura Neuman, the approval of a good legislation on

transparency is not the big challenge, but the consolidation of an institutional framework that

materializes the right that is protected by law.32

Three models to procure and guarantee the right of access to public information are recognized in the

world. The first is a “judicial review model” in which appeals are submitted before authorities of the

Judicial Branch (in the United States, for example). In the second model, there is an information

commissioner (or tribunal) with order-making powers where the defining characteristic is that this

commissioner issues binding resolutions for entities subject to access to public information laws (such as

the Federal Institute of Access to Public Information of Mexico. There is also an information

commissioner in the third model, but this person does not have binding power, and only issues

recommendations to the corresponding institutions; this person is like an information ombudsman (in

Canada, for example).33

In the cases analyzed, the second model is predominant –a commissioner with binding decisions-,

because it is the one that characterizes the four Mexican states and the Instituto de Acceso a la

Información Pública (Institute of Access to Public Information) of Honduras. The situation becomes more

diffuse in the cases of Guatemala and Nicaragua, where procuring the right of access to governmental

information is a responsibility of the Human Rights Ombudsman, in the former, and of a series of

Coordinating Units of Access to Public Information, in the latter. These characteristics put Guatemala as

a hybrid between the first and the third models; while Nicaragua seems to be a hybrid between the

second and the third models. In contrast, in Panama it is not clear, which agency is responsible for

procuring and guaranteeing the right. The characteristics of the Panamanian case (specifically, the

Supreme Court participation in the review of the Habeas data) suggest that Panama might be moving

towards a judicial model.

Irrespective of the type of model, a key condition for the effective enforcement of the right to access

governmental information is that the responsible/guarantor entity has to have political and decision

autonomy. By autonomy, it is understood as the existence of “differentiation of incentives and interests

between the responsible/guarantor entity (´active´ entity) and the entities of access to information laws

32

Neuman, Laura. 2009. Enforcement Models. Content and Context. World Bank Access to information Working Papers. Washington DC: The World Bank. http://siteresources.worldbank.org/EXTGOVACC/Resources/LNEumanATI.pdf 33

Idem

(´passive´ entities).” The outcome of real autonomy is that “the institutional operation and survival [of

the responsible/guarantor entity] are not subordinated to the convergence of interests of the [entities

of access to information laws].”34 The responsible/guarantor entity must operate “free from all political

interference and [must be] capable of resisting the influence of created interests.”35

The normative framework that determines the structure of the responsible/guarantor entity in the cases

analyzed (in the Central American countries, specifically) calls into question their autonomy. One

indicator of the level of autonomy is the procedure established to select the head of the

responsible/guarantor entity: if it is the result of one actor making the decision, the level of autonomy of

the head of the institution decreases. Following the same logic, as the responsibility of appointing the

head of the institution is a shared responsibility (for instance, among opposite political parties) the

appointed head may be more protected and have a larger margin of action that is less affected by

individual (party) interests. This way, we find that the probability of autonomy increases when two

government branches participate, in contrast with situations in which the decision is prerogative of a

single branch or of the head of an institution. Of the cases analyzed, Nicaragua is probably the one that

shows more vulnerability in the responsible/guarantor entity, since the head of each Coordinating Units

of Access to Public Information is appointed by the highest authority of the branch or institution to

which the Unit is attached, and from which it depends by hierarchy (this, even if it the position is fulfilled

after an open competition). Figure 13 illustrates the differences.

34

Ríos Cázares, Alejandra and Juan Pardinas, 2009. Hacia la reforma constitucional: las entidades de fiscalización superior en México. Working paper 219, Division of Public Administration. Mexico: CIDE 35

(Neuman, 2009: 25)

Figure 13: Level of Autonomy of Responsible/Guarantor Entity

Autonomy

Weak Strong

Case Nicaragua Guatemala Puebla Chiapas Federal District

Yucatan

Number of commissioners or position holders

Each Public Information Center will have the number of members that each branch, each Autonomous Regional Government and each Municipal Government determines

There are no commissioners, it is delegated to the Human Rights Ombudsman and he appoints an executive secretary 3 3 5 3

Validity of the mandate (years)

4 5 6 7 6 5

Appointment process

The head of each Committee of Access to Public Information will be chosen by competition, but dependent on the maximum authority of the State branch to which the Committee is assigned.

The Ombudsman is appointed by Congress, from a short list proposed by the Legislative Committee on Human Rights formed by one member of each political party with legislative representation. The Executive Secretary is directly appointed by the Human Rights Ombudsman.

The Gran Comisión of Congress opens public announcement and submits a short list, it must have the vote of 2/3 of members present.

Advisors will be appointed by the Executive Head of State, who must be ratified by the State Congress or, where appropriate, by the Standing Commission by a qualified majority vote of members present.

After public announcement, the person will be appointed through the vote of two thirds of the members present during Federal District’s Legislative Assembly.

Appointed by the State Congress, through the vote of two thirds of its members, from a short list submitted by the Executive Head of State for each appointment.

The good operation of a responsible/guarantor entity not only requires a minimal level of

independence, but also a clear definition of its duties, faculties and responsibilities. On this subject, the

institutional system that prevails in Panama is characterized by diffused responsibilities and dispersed

authority. Nicaragua is in a second level regarding the lack of clarity on duties and authority, where is

not evident the scope of the mandate of each of the Coordinating Unit in accordance with the law, and

according to the country study, neither have they been set up or their coordinating mechanisms. As

shown in table 4, the rest of the cases seem to show more clarity in this regard. Table 3 also provides a

standardized index on responsibilities, which illustrates the magnitude of the task of

responsible/guarantor entities (1 is the highest score). Figure 14 shows the same information in a

different format.

Table 3: Responsibilities of Responsible/Guarantor Entity or Equivalent

Faculties

Guaranty agency or equivalent

Promote the right of

access to information

Monitor the effective

compliance of actors’

obligations

Keep request

statistics

Knowledge on appeals Sanctions Issue a

work report Total

Guatemala Human Rights Ombudsman 1 1 1 0 0 1 0.666

Honduras Institute of Access to Public Information

1 1 ¿? 1 1 1 0.833

Panama Various

Disperse: National Transparency Council Against Corruption

Ombudsman (trans. node)/ National Assembly

Ombudsman Supreme Court

Undeter mined

Undeter mined 0.000

Nicaragua Public Information Center

1 1 1 1 0 1 0.833

Chiapas

Institute of Access to Public Information for State Administration

1 1 1 1 1 1 1.000

Mexico City

Federal Institute of Access to Public Information

1 1 1 1 1 1 1.000

Puebla

Commission for Access to Public Information in Puebla

1 1 1 1 0 1 0.833

Yucatan

State Institute for Access to Public Information in Yucatan

1 1 1 1 1 1 1.000

Figure 14: Responsibilities of Responsible/Guarantor Entity or its Equivalent: Index of Responsibilities

Autonomy, however, is not sufficient to ensure an effective responsible/guarantor entity. It is also

important to have enough material and human resources to face the task. In order to give a graphic idea

of the operational capacity of responsible/guarantor entities, Figures 15 and 16 show two

considerations. The first contrasts budget resources of responsible/guarantor entities (in USD) and the

number of public entities subject to access to public information laws that the same

responsible/guarantor entities reported (in the case of the Mexican states) or that were identified (in

the case of Central American countries). Figure 16 shows the proportion between available personnel

and the index of responsibilities.

0,000 0,200 0,400 0,600 0,800 1,000

Guatemala

Honduras

Panamá

Nicaragua

Chiapas

Distrito Federal

Puebla

Yucatán

0,500

0,833

0,000

0,833

1,000

1,000

0,833

1,000

Figure 15: Budget of the Responsible/Guarantor Entity by the Number of Agencies Subject to the FOI Law

Note: Budget data represents the 2008-2010 average for Guatemala and the 2008-2009 average for Mexican states.

Figure 16: Total Personnel of Responsible/Guarantor Entity, Number of Agencies Subject to FOI Law and Index of Responsibilities

$-

$10.000,00

$20.000,00

$30.000,00

$40.000,00

$50.000,00

$60.000,00

Guatemala Chiapas Distrito Federal Puebla Yucatan

$2.893,08

$8.723,61

$51.502,32

$2.592,16

$7.756,36

6

32

146

34 35

127

146

121

0,000

0,100

0,200

0,300

0,400

0,500

0,600

0,700

0,800

0,900

1,000

-10

10

30

50

70

90

110

130

150

Guatemala Chiapas Distrito Federal Yucatan

Personnel Agencies subject to FOI Average

In the previous Figures, the number of obligated entities used was of those who were self-reported by

Mexican states, and those that were identified from the legislation in the cases of the Central American

countries. Although the information can give an idea, it is important to highlight that there might be

some imprecision in all legislations in regards to the definition and number of obligated entities. While

some laws mentioned public institutions generically, there are others that are very specific.36 The

difference is crucial when considering that in these cases the legislation gives the responsibility of

overseeing the correct fulfillment of the regulation to each one of the obligated entities. On this subject,

it is again noticeable that Panama, according to Article 1 Numeral 6 of the Transparency Law, would

have around 1,605 obligated entities, while Guatemala would have 35 according to its regulation (Figure

17). This is not a small challenge, because the number of obligated entities delineates the universe of

action for the of the responsible/guarantor entity and can affect the budget and personnel

requirements, besides determining the work plan.

Figure 17: Number of Agencies Subject to FOI Laws

Responsible/guarantor entities are fundamental tools for an effective exercise of the right to access

public information. These institutions should be responsible for promoting or coordinating the

dissemination of the right to information, overseeing or proactively monitoring its implementation (such

as publishing information in web portals), as well as of resolving conflicts when there is an information

request at stake. Due to extension limitations, it is not possible for this report to present detailed

information about the situation of the Mexican states’ responsible/guarantor entities, in which the main

weakness is the low institutionalization of internal procedures (the absence of operating or archiving

36

Take as example the extreme cases of Jalisco and Quintana Roo, two Mexican states: While Jalisco identifies 735 agencies subject to FOI actors, Quintana Roo only acknowledges 17. This difference can be partially explained because Jalisco acknowledges municipal institutions, district courts, etc., as agencies subject to FOI actors, besides disaggregating institutions from the executive branch. Quintana Roo, in return, only identifies each branch of the Government and their Municipalities.

0

100

200

300

400

500

600

700

800

900

1000

62

1605

35

127 146

372

121

manuals, for example), which makes the institution vulnerable to potential loss of institutional memory.

Secondly, there is an inconsistency between the human and financial resources available and the

defined responsibilities.. For example, the Instituto de Acceso a la Información Pública (Institute for

Access to Public Information) of the state of Chiapas is responsible to promote the right of access to

public information within the state’s 118 municipalities, of which a large percentage is made-up of

indigenous population who speak different native languages. This reality makes even more relevant the

mandate of the responsible/guarantor entity of training the state’s municipalities on their responsibility

to monitor that all entities subject to access to public information laws fulfill the specifications of public

information. The Chiapas’ responsible/guarantor entity has made an important effort to create teaching

material that translates the corresponding legislation into the different native languages and it also has

made good progress in identifying and trying to adjust the traditional indigenous ways of organization to

the right of access to information. Thus in the case of Chiapas, it is important not only the number of

entities subject to the law, but also its characteristics. Something similar happens in Yucatan, which has

a large population of Mayan descent dispersed throughout the state’s territory.

The analysis of the responsible/guarantor entities shows that there are important challenges, especially

for the four Central American countries. The first and most obvious is to make simpler and clearer the

institutional design of government transparency. With the exception of Honduras and Guatemala, it is

essential to clearly define the responsible entity as guarantor of the right of information, and mainly to

resolve the issue of dispersion of responsibility.

Another issue is the institutional design analysis of the responsible/guarantor entities. This is especially

important for Nicaragua where there is little clarity about the autonomy of the Coordinating Units for

Access to Information or the scope of their mandate. Almost five years after the legislation was passed,

no Units have been established. The law exists in Nicaragua, but there is no one responsible for

defending the right of access.

A third challenge is to define the mandate, not only regarding the responsibilities of the

responsible/guarantor entity (to promote the right, to know about review processes, to monitor web

portals, apply sanctions, etc.), but also regarding its universe of action. This challenge is equally

important for the eight cases analyzed.

Finally, the first stages of implementation of the right of access to information demand a more intensive

effort in terms of monitoring, institutional training, and guidance to citizens; therefore, national and

sub-national governments must assign more resources to this effort. There is a pending question

regarding the real costs and benefits resulting from the promotion of access to public information.

Conclusions

The right of access to public information is precisely that: a right that requires and needs to be

acknowledged in specific law. However, its effectiveness entails a public policy that secures not only a

normative framework, but also a responsible/guarantor entity, procedural adjustments to the public

administration, and to those institutions that are responsible for information. However, such an

institutional framework would be useless without an extensive awareness campaign of this right, not

only among citizens, but also among public servants. The final goal should be to build a culture of

transparency, both for governments (that feel obligated to make their information public because they

feel watched), and for citizens (that know and exercise their right).

The analysis we presented in this report shows that the main challenge is to construct and consolidate a

public policy that allows the structuring of a coherent system of access to public information. Albeit

important progress has been made in all cases to consolidate a specialized legislation, there are still

important challenges to continue to institutionalize a transparency system, and to consolidate capacity

for effectively making public governmental information. More specifically, ten elements could be

highlighted to be improved and strengthened regarding access to public information:

1. Clearly defining the responsible/guarantor entity and its responsibilities, as well as giving it

autonomy and enough resources to guarantee its management, financial and operational

capacities.

2. Clearly defining the universe of the responsible/guarantor entity, in terms of the entities that

are obligated, as well as its scope of action.

3. Promote specialization in matters regarding access to information and transparency.

4. Define public policies to manage and archive/file information (archival management), as both

are fundamental for the right to information.

5. Define and improve the “chain of command” regarding access to public information. This is

particularly important for the entities subject to the law, which have not been able to

institutionalize the logic of transparency in their daily routines, or have not yet unmistakably

defined the people in charge, legal periods of time to respond to requests and legal

consequences. It is advisable that the institutions in charge of enforcing the right of access to

public information establish an effective mechanism to process information requests.37 This

37

In this area, examples can be taken from the Mexican states in which at least three operating methods have been identified (mainly in the executive branch and in some municipalities): the first method has an access unit per agencies subject to FOI actor, which means each institution has a “linking unit” and a reception window for requests; in the second method there is a single unit where there is only one window and one access unit, but there are also trained and appointed officers in each institution to respond to information requests. The third method has a supervising unit that oversees the actions of each institution (and each institution has its own linking unit and a reception window). The most important fact is that, independently from the method, these units hardly represent a new or additional burden, because there are skilled officers in public management who simply take on transparency responsibilities.

would give certainty to officers and citizens about the procedures to be followed, and would

slowly decrease the current amount of barriers.

6. Assign sufficient resources to the responsible/guarantor entities so they can carry out their tasks

efficiently. Besides searching for budget resources, it is necessary to guarantee the legal support

and management capacities that help promote the exercise of the right and resolve disputes.

7. Use of information technologies to speed up procedures and reduce costs. This is not only

about using computer equipment and cybernetic webs. There have been successful cases in the

use of telephone lines through which users can request public information, or make a specific

request.

8. Promote a transparency culture beyond the right to request information, such that freedom of

information becomes part of every institutional routine. In this way, citizens’ requests are only a

link in a more sophisticated chain of information-- that ensures a more proactive access to

information through open government and participatory budget among others—and in turn

articulates with other accountability mechanisms.

9. Sponsor political leaders –especially the national, state and municipal executive branch leaders–

to take on an explicit commitment to the right of access to governmental information, so their

example is an incentive for their subordinates and for other institutions.

10. Create a deliberate strategy to build “transparency capacities” in sub-national governments,

since there is a serious unbalance between the transparency obligations (and expectations) of

municipal governments, and the (management, technological and financial) capacities to meet

them.38 The initial efforts in Central American countries and in the Mexican states must be

deepened to make all types of municipal governments capable to respond to citizens requests

for information.

It is also necessary to think about the political use of access to information. Trying to make equal the

legislation of access to public information (which is not a transparency policy) to an anti-corruption

strategy is not only a mistake of substance, but also a mistaken strategy. The legislative histories in most

of the cases analyzed in this report (as well as the institutions that are responsible for that legislation)

show that the legislation was presented as a solution to high corruption levels. By the same token,

access to information and transparency were introduced as synonyms to government accountability.

Presenting transparency and legislation on access to governmental information in this way can be

counterproductive for, at least, two reasons.

First, information is a necessary condition for government accountability, but it is not sufficient.

Government accountability entails the obligation of government agencies to report, explain and justify

their actions and omissions to those who call for an account. Thus, to access public information is only

38

Guillermo M. Cejudo, "Capacidades para la transparencia y la rendición de cuentas en el ámbito municipal", in Rodolfo García del Castillo (coord.), Los Gobiernos Locales ante los retos de la globalización, Mexico, Universidad Autónoma Metropolitana-IGLOM, 2011 (forthcoming).

one of the three main actions of any accountability relationship, but does not represent the entire

definition, as it does not imply an explanation or justification. The conclusion, therefore, is clear: the

right of public information does not guarantee accountability. Usually, there are pending important

issues such as the definition of responsible actors and responsibilities, or the specification of incentives

and penalties, both fundamental elements of government accountability.39

Secondly, a state that is opened to transparency through access to information has fewer possibilities of

corruption, but nothing else. Again, acknowledging the citizen right to access public information does

not guarantee honest public officers. This can only be accomplished through integrated policies to

improve democratic governance.

Building a system of access to information entails costs, and it requires institutional adjustments and

procedural adaptations. The results presented of the simulated user exercises and from the review of

the web portals shows that it is very important to take on the challenge of institutionalizing access to

public information. Even if there has been some progress in acknowledging the right to access public

information, there is still a long way to go in the consolidation of a comprehensive public policy on

government transparency. Only when all institutions, procedures, authorities and regulations are

properly aligned, it will be possible to consolidate democratic governance, with transparency and

accountability.

39

For more detailed information on this topic, see Sergio López Ayllón, Mauricio Merino and Guillermo Cejudo (coords). La estructura de la rendición de cuentas en México. Mexico: IIJ-UNAM. 2010

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Annexes

Annex A

Researched Public Entities by Country

Guatemala Honduras

Presidency of the Republic Presidential Office Secretariat

Ministry of Government (of Interior) Population and Interior Secretariat (Before: Interior and Justice Secretariat)

Ministry of Finance Finance Secretariat

Ministry of Public Health and Social Provision Secretariat of Health

Ministry of Education Education Secretariat

Secretariat of Social Welfare Work and Social Safety Secretariat

Ministry of Communications, Infrastructure and Housing

Secretariat of Public Works, Transportation and Housing (SOPTRAVI)

Congress Congress

Office of the Comptroller General High Court of Accounts

Supreme Court Supreme Court

Municipality of Guatemala Municipal Office, Central District (Department of Francisco Morazán)

Municipality of Santa Catarina Pinula Municipal Office, San Pedro Sula (Department of Cortés)

Municipality of Mataquescuintla Municipal Office, Sabanagrande (Department of Francisco Morazán)

Nicaragua Panama

Presidency of the Republic Ministry of the Presidency

Ministry of Government Ministry of Government

Ministry of Treasury and Public Debt Ministry of Economy and Finance (MEF)

Ministry of Health Ministry of Health

Ministry of Education Ministry of Education

Emergency Social Investment Fund Ministry of Social Development

National Assembly of the Republic of Nicaragua

Ministry of Public Works

Office of the Comptroller General National Assembly

Supreme Court Office of the Comptroller General

Municipality of Managua Judicial Branch

Municipality of Diriamba Municipality of Panama (Panama Province)

Municipality of Muelle de los Bueyes Municipality of David (Chiriquí Province)

Municipality of Atalaya

Annex B

Process to Request Access to Public Information Process to Request Review and/or to Appeal Annex B - 1 Guatemala Process to Request Access to Public Information before subject bound by Law on Access to Public Information (Decree 57-2008) Process to review before maximum authority of obligated by Law to Access to Public Information about

Guatemala (Decree No. 57-2008).

Annex B - 2 Honduras Process to Request Access to Public Information before subject bound by Law on Transparency and Access to Public Information (Decree 170-2006) Process to review before maximum authority of obligated by Law to Access to Public Information about

Guatemala (Decree No. 170-2006).

Annex B - 3 Nicaragua Nicaragua Law on Access to Public Information (Law 621- 2007) Process to Request Access to Public Information before subject bound by Law on Access to Public Information (Law 621-2007) Process to review before maximum authority of obligated by Law on Access to Public Information (Law 621-2007) Annex B - 4 Panama Process to Request Access to Public Information before subject bound by Law No. 6 of January 22, 2002

Request received

Reply to requester in

case there is a need

to clarify or omissions

Clarification was not presented or omissions were not rectified by

requester

Request submitted Resolution to the

request of access to

information

Clarification was presented or

omissions rectified by requester

Resolution to extend the deadline to

respond to the request (in writing)

Implement internal procedures to respond

to the request for information

Internal

procedures carried

out.

XOR

Notification

File and Registry

Deadline for

responding to the

request extended

V

V

Notification

File and Registry

Notification

File and Registry

V Requester or legal

representative

Appeal for review before

the highest authority of

the Institution/entity

subject to the law

Processing the appeal request for

review

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Basis and motivation to

extend deadline for responding to

the request

V

XOR

Information made

available to the

requester for

consultation in the

institution/entity

subject to the law

(for free)

Issuing simple or certified copies of

requested information

Requested information

provided through a written copy or

electronic means

Information requested

provided to requester

Notification

Favorable resolution to the

request for access to information (in

writing)

Payment of

reproduction costs

XOR

Negative resolution to

access to information (in

writing)

Resolution declaring that the

requested information does

not exist (in writing)

Basis and

motivation for

negative resulution

V

File and Registry

V

XOR VXOR

Delivery of information requested by ficta

affirmative

Information

requested is not

provided

XOR

Information is not

provided and/or

delivered

Arts. 1 a 6, 9, 16,

19, 20, 38, 41

LAPI

Arts. 41, 42 LAPI

Arts. 1 to 3, 9, 16,

18, 19, 20 to 24, 40,

42 to 45 LAPI

Arts. 3, 18 LAPI

Reproduction

costs paid by

requester

XOR

Means of copying

information

provided by

requester

Requester does

not pay costs of

reproduction

The end

Lack of response

to the request for

access to

information in a

timely and legal

fashion

Request for access to information to Unit of Public Information/

Liaison (Verbal, written, using model, or electronically)

Requester (active

subject)

Guidance to

interested citizens

XOR

Guided/assisted request for access to information

before Unit of Public Information/Liaison

(Verbal, written, using model, or electronically)

Notification

File and Registry

Request is sent to

responsable official

Request

submitted to

responsable

official

V

Arts. 20, 38 LAPI

XOR

Arts. 20 LAPI

Arts. 1 a 3, 9, 16,

18, 19, 20 a 24, 40,

42 a 45 LAIP

Art. 44 LAPI

Partial negative resolution to

access to information (in

writing)

Basis and

motivation for

partial negative

resolution

V

Negative

resolution to

access to

information

because

clarifications were

not provided or

ommisions

clarified within the

due date allowed

(In writing)

Arts. 1 to 3, 9, 16 to

18, 19, 20 to 24, 40,

42 to 45 LAPI

V

V

Annex B-1. Process to Request Access to Public Information to institutions and/or entities subject by the Guatemala Law on Access to Public Information (Decree 57-2008)

Appeal request

recieved

Receipt of the appeal

request for review

Appeal for review

before the highest

authority of the

Institution/entity

subject to the law

Requester or legal representative

Process to request

access to public

information

Refusal of access

to information

Information provided is considered

incomplete or it does not

correspond to request

Resolution of the

appeal request for

review (in writing)

Confirm decision to

Information Unit

Resolution of the

appeal request for

review

V

Notification

V

File and Registry

Resolution declaring that the

requested information does

not exist

Lack of response in terms provided for in the LAPI

Arts. 52 to 58

LAPI

Arts. 58 to 60

LAPI

Revoke the decision of the

Information Unit and instruct provision of requested

information allow consultation or make changes, corrections or deletions of

sensitive personal data

Deadline for

providing

requested

information

expired

Resolution to

classify

information as

restricted or

confidential

Resolution to

extend the

deadline of

reserved

information

Provide deadlines and procedures for implementation of

resolution

Modify the decision of the Information Unit and instruct

provision of requested

information, allow consultation or make changes, corrections or deletions of

sensitive personal data

V

Injunction ordering

that resolution is

enforcedResolution fulfilled

Certification of non-compliance before the

competent court

Resolution not

fulfilled

XOR File and Registry

Art. 60 LAPI

Procedure of

administrative

responsibility

Certification of non-compliance before

the competent court

Adoption of administrative measures to implement resolution

Art. 60 LAPI

V

Adoption of administrative measures to

implement the resolution

Art. 60 LAPI

Procedure before

the competent court

Requester Proctetive action

Procedure to

activate protective

action

Notification

V

Annex B-1. Process to Request Review (and/or appeal) to Supreme Authority- Guatemala Law on Access to Public Information (Decree 57-2008)

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Request received

Requirring the applicant to clarify or

supplement the request.

Clarification not presented or incomplete information

presented by requester

Request ReceptionResolution of

request to Access information

Clarification presented or

information from requester completed

Resolution to

extend the

deadline to

respond to the

request

Implement internal procedures to respond to the request for information

Internal

procedures carried

out

XOR

Notification

File and Registry

Extending the resolution deadline for the request to

Access to information

V

V

Notification

File and Registry

Notification

File and Registry

V Requester or legal

representative

Appeal process for

review made to IAPIAppeal Process for

review

Communication of reasons that justify

exceptional extensión

V

XOR

Requested

information

provided in person

to requester

Printed information

made available to

the public

electronically

Requested

information provided

to requester

Notification

Petition for Access to information

(Favorable Resolution)

Payment of

reproduction costs

XOR

Resolution denying Access to

information

Resolution declaring that the

requested information is unavailable (in

writing).

Reasons/basis for the denial (in

writing)

V

File and Registry

V

VXOR

Information

requested is not

provided

Arts. 3 to 5, 20

LTAPI

Arts. 5, 11, 47 to 49

LTAPIR

Reproduction

costs paid by

requester

XOR

Requester does

not pay costs of

reproduction

The end

Request access to informationto the Public Information Officer (in writing, with forms or

electronically)

Requester or

legal

representative

Individual

orientation

XOR

Guided request to Access information to the Public Information Officer (in writing with forms or electronically)

Notification

File and Registry

V

Annex B-2. Process to request access to public information from Institution subject by the Law on Transparency and Access to Public Information of Honduras (Decree 170-2006)

Official Identity

document

Official Identity

document

V

V

V

Art. 49 LTAPIR

File and Registry

The end

V

Remit to the

responsible

Institution

Art. 49 LTAPIR

Notification

File and Registry

VV

Institution/entity subject to the law

does not have competencies to

provide information

Request submitted

to the Institution/

entity subject to

the law

Institution/entity subject to the law

does not have requested information

because it is not within its

competencies

Arts. 3 to 5, 14, 16,

17, 19, 21, 22 LTAPI

Arts. 5, 8, 9, 34, 35,

50 to 52 LTAPIR

Art. 15 LTAPI

Arts. 5, 8, 9, 34, 35,

50 to 52 LTAPIR

Arts. 3 to 5, 14, 16,

17, 19, 21, 22 LTAPI

Arts. 5, 8, 9, 34, 35,

50 to 52 LTAPIR

Arts. 3 TO 5, 14, 15

LTAPI

Arts. 5, 8, 9, 11, 50

tp 52 LTAPIRequested

information

provided to

requester by fax,

postal service or

electronically

No resolution of request to access

to information within the legal

deadline.

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Request for

review received

Reception of the

request for review

Annex B-2. Process to Request Review (and/or appeal) to the Institute of Access to Public Information in Honduras.

Appeal process for

review made to IAIP

Requester or Legal

Representative

Process to request

Access to public

information

Denied resolution

to Access to

information

Information that was provided is

considered incomplete or

does not correspond to the

request.

V

Resolution declaring that the

requested information is unavailablele

Dissatisfaction with the time, cost

or modality information was

provided.

No resolution of request to access

to information within the legal

deadline

Art. 26 LTAIP

Arts. 64 to 66

LTAPIR

Appeal process for review accounted in

the the office of the president of the

institution

Appeal process for review

accounted in the the office of the president of the

institution

Appeal process for

review being reviewed

by appointed

commissioner.

Request for review by appointed

commissioner

Integrated fileFile integration

Elaboration and presentation of

Resolution draft to the Plenary of the Institute

Draft resolution

submitted to the

Plenary of the

Institute

Extension of the deadline for

preparation and presentation of resolution draft

XOR

Art. 26 LTAPI

Art. 67 LTAPIR

Art. 26 LTAP

Art. 67 LTAPIR

Art. 26 LTAPI

Art. 67 LTAPIRArt. 26 LTAPI

Art. 67 LTAPIR

Art. 26 LTAPI

Art. 67 LTAPIR

Resolution of appeal request for review (in writing)

Discard or dismiss

the appeal

Resolution of the

appeal request for

review

Confirm the

decision of the

subject institution/

entity

Order to inform to

body of internal

control of subject

institution for star

the procedure of

responsibility

V

Resolution to extend the deadline to

resolve the appeal request for review

Extend the deadline to appeal

resolution

Notification

File and Registry

Extended the deadline of the appeal

request resolution

V

V

XORMeeting hearings

with the partiesHearing carried out

Presentation of arguments outside

of the hearing

Arguments and

allegations argued

by the parties

Arguments and

allegations argued

by the parties

VXOR XOR

Repeal or modify the decision of

subject institution/entity

To order to subject

institution/entity

that allow access to

the requested

information or

personal data

To order to subject institution/entity the reclassification of the information

Notification

Art. 26 LTAPI

Art. 67 LTAPIR

Art. 26 LTAPI

Art. 67 LTAPIR

Art. 26 LTAPI

Arts. 67 to 69

LTAPIR

Art. 26 LTAPI

Arts. 67 to 69 LTAPI

Art. 26 LTAPI

Arts. 67 a 69

LTAPIR

To order the subject institution/

entity the modification of the

data

Guidance about

deadlines and

procedures for

implementation of

the resolution

No resolution of appeal request within the legal

deadline/ If the Act is repetitive means

as confirmed

The end

Particular

Request procedure

Processing for

reconsideration

Request for resolution

reconsideration that confirming the

negative of access to information

Resolution of the appeal request for

review notified

Procedure of

protection action

appeal

File and Registry

V

Procedure for administrative responsibilityOutcome has two or more steps to be made, of which one, more than one or

all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Request received

and registered

Notification

File and Registry

Copy of the registry form of

the request (with date of request)

Reply to requester in case there is a need to clarify the

request

Clarification was not presented or incomplete data presented by the

requester

Reception and registration of the

request

Resolution to the

request of access

to information

File and Registry

Resolution to

extend the

deadline to

respond to the

request

Request for information to the administrative unit or competent area

Information requested to the

administrative unit or area that

produces, controls or possesses

requested information

V

XOR

XOR

Notification

File and Registry

Resolution to extend

deadline of the request

for access to

information

V

V

Notification

File and Registry

V

Notification

File and Registry

V Requester / Legal

respresentative

Appeal to the

competent

Coordinating entity

of Access to Public

Information

Processing of the

appeal

Annex B-3. Process to request access to public information from entity subject to the Law of Access to Public Information of Nicaragua (Law 621-2007)

The end

V

Communication of

reasons, rationale

and motivation for

an exceptional

extensión

V

V

XOR V

Information made

available to the

requester for on-

site consultation

Delivery of

requested

information by e-

mail

Information on

Internet for public

consultation

(communication of

data access)

Requested

information is

providedNotification

Favorable

resolution to the

request for access

to information

(information is

made available)

Payment of

reproduction and

shipping costs

XOR

Negative

resolution to

access to

information

Basis and

motivation for

negative resolution

V

File and Registry

V

XOR VXOR

Arts. 2, 3, 6, 26,

27, 34 LAPI

Arts. 3, 5, 10, 73 to

75 LTAPIR

Reproduction and

shipping costs

paid by the

requester

XOR

Reproduction and

shipping costs not

paid by the

requester

The End / Request

filed without OPIA

responsibility

Lack of response

to the request

within the legal

deadline -

administrative

silence /

acceptance of the

request (except

reserved or

confidential

information)

XOR

Processing of the

contentious-

administrative

proceeding

Request for access to

information to OPIA /

Delegation Offices

(Verbal, written or

electronically)

Requester

Guidance to

citizens

XOR

Request for access to information to Unit of Public Information/

Liaison (Verbal, written, using model, or electronically)

Art. 27 LAPI

Art. 74 LTAPIR

Clarification was presented or data completed by the

requester

Entity subject to the law does not

have competencies to

provide information

Guidance to

requesterNotification

File and Registry

V

Entity subject by the law does not

have the information requested

because it is beyond its scope

Art. 27 LAPI

Art. 74 LTAPIR

Guidance to Requester about the competent authority/entity

V

Arts. 3, 6, 9, 28

LAPI

Arts. 10, 11, 78

LTAPIR

V

Authorization

granted by the

owner of the

private information

Request for authorization to a private citizen to provide private

information

Authorization

denied by the

owner of the

private information

Art. 64 LTAPIR

Non-response

from the owner of

the private

information

(negative)

XOR

Arts. 1 to 3, 6, 11, 15

a 17, 28, 35, 36 LAPI

Arts. 3, 10, 11, 51, 55,

62, 64, 76, 82, 85

LTAPIR

XOR

Arts. 1 to 3, 6, 11, 15 a

17, 28, 29, 35, 36 LAPI

Arts. 3, 10, 11, 51, 55,

62, 64, 76, 77, 79, 82,

85 LTAPIR

Guidance of the

possibility to

appeal

Guidance about

the posibilitiy to

star a process in

administrative

courts

Art. 31 LAPI

Arts. 10, 70, 71, 83

LTAPIR

Arts. 1 To 3, 6, 11, 30,

32, 33 LAPI

Arts. 3, 5, 10, 64, 72,

82, 85 LTAPIR

Precise Indication

of place and

official to whom

the citizen must

contact to view the

information

Issuing simple or

certified copies of

requested

information

XOR

Information

provided to access

by people with

disabilities or

special language

needs

Indication of date

and number of

newspaper,

newsletter, Official

Gazette or media

in which the

information was

published

Requester does

not demand the

provision of

requested

information within

30 working days

after notification of

availability of

information

File and Registry

The End / Request

filed without OPIA

responsibility

V

XOR

Requester / Legal

respresentative

Legal Action

before the

Administrative

Court

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Appeal received

and recorded

Reception and

registration of the

appeal

Annex B – 3 Process to Request Review (and/or appeal) to the of Access to Public Information Coordinating Unit

Appeal to the

competent Access to

Public Information

Coordinating Unit

(through writting or

pre-defined format,

in person or

electronically)

Legal Representative

Process to request

access to public

information

Negative

resolution to

access the

information

Information

provided

considered

incomplete or that

does not

correspond to the

request

XOR

Hearing takes

place

Evidence admitted

and reviewed

Resolution of the

appeal

Resolution of the

appeal

Order that accepts

the provision of

requested

information (in case

the authority omits

resolving its

granting or refusal /

administrative

silence)

V

NotificationAppeal is

transferred

Report and evidence

presentedXOR

Notification

File and Registry

V

Appeal allowedVReview and

acceptance of the

appeal

V

File and Registry

Intervention by the

issuing authority of

the review resolution

Appeal

transferred to the

authority that

issued the review

resolution

Lack of intervention

by the authority that

issued the review

resolution

Lack of resolution

to the request

within the legal

deadlines/

administrative

silence

V

Art. 37 LAPI

Arts. 87 to 91

LTAPIR

Dissatisfaction

with the time, cost,

or the way the

information was

provided

Art. 37 LAPI

Arts. 87 to 92

LTAPIR

Art. 37 LAPI

Art. 92 LTAPIR

Art. 37 LAPI

Art. 92 LTAPIR

XOR

Hearing call Hearing call notified Evidence

presented

Provision of

evidence

Art. 37 LAPI

Art. 94 LTAPIR

Lack of provision of

evidence

Art. 37 LAPI

Art. 94 LTAPIR

XOR

Evidence discarded

Hearing held

Art. 37 LAPI

Art. 93, 94 LTAPIR

V

Art. 37, 38 LAPI

Art. 93 to 95, 99

LTAPIR

Decision rejecting

the appeal /

confirms the

decision of the

authority

Resolution

favorable to the

requester /

Revokes or

amends the

decision of the

authority

Processing of the

contentious-

administrative

proceeding

Legal Representative

Legal action in the

Administrative

court at the

Supreme Court of

Justice

Appeal dismissed

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Request received

Request Access to public informationto

respective institution (in writing or by e-mail)

Requester

Notification

File and Registry

Assigned request to respective

designated official

Request

acknowledged by

designated official

Reception of

request

Resolution to respond to request for Access to public

information

Internal process starts

to respond to

request for

information

Internal processes completed

V

Unfavorable resolution to the

request for information (in

writing)

Grant simple or certified copies of

requested information

Information

requested

provided to

requester in

digital, audio,

photographic,

cinematographic,

or videographic

formats

Non existence of information

communicated in writing to the

requester

Information on source, location

and mode of Access to

information is publicly available

XOR Notification

File and Registry

V

XOR Notification

File and Registry

V

Acción de Hábeas Data

(Información o dato

personal negado o

suministrado de manera

insuficiente o inexacta)

Interested party

Action of Habeas Data (information or

personal data supplied denied or

inadequately or inaccuratele presented)

Annex B-4. Process to request access to public information to Institutions subject by the Law No. 6 January 22, 2002

Basis and motivation for the

unfavorable response

VV

Favorable

resolution to the

request of

information

Proof of payment for

costs of

reproduction.

Proof of payment

received by

requester

XOR

XOR

Payment not made

by the requester The End

Arts. 1.9, 1.10, 2, 3,

5 Law 6/2002 Art. 5 Law 6/2002

Arts. 1.11, 2, 3, 4, 6,

7, 11, 13 a 16 Law

6/2002

XOR

Extension of the

deadline to respond

to the request

Notification

File and Registry

Resolution extending

the deadline for the

request to access to

public information

V

Written information to the requester

about the need to extend the

deadline to gather information

Art. 7 Law 6/2002

Arts. 1.11, 2, 3, 4, 6,

7, 11, 13 a 16 Law

6/2002

Art. 4 Law 6/2002

Official confirmation that

information requested was provided to the

requester

Orientation to requester about

Institution that has or may have the

requested information.

V

Arts. 17 to 23

Law 6/2002

Outcome has two or more steps to be made, of which one, more than one or all must be carried out. V

XOR

Decision-making mechanism which indicates that a process, an external

process or an input /outcome has two or more steps to be made.

V

Decision-making mechanism used to indicate scenarios or alternate flows, of which only one can be carried out.

Regional Centre for Latin America and the Caribbean, Panama

Local Governance and Decentralization Area/Democratic Governance Transparency and Accountability in Local Governments (TRAALOG) Project Internet: http://www.regionalcentrelac-undp.org/en/democratic-governance/66 Cover Photo: Charlotta Sandin