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Peru

International Focus

peru
Law and Constitution

In August 2002, Peru adopted the Law of Transparency and Access to Public Information, which guarantees the right of every individual to request information in any medium, from any public authority, regardless of identity or motive [1].

Peru’s 1993 Constitution also establishes the right to information, protected by the habeas data provision.

All persons have the right: […] To solicit information that one needs without disclosing the reason, and to receive that information from any public entity within the period specified by law, at a reasonable cost. Information that affects personal intimacy and that is expressly excluded by law or for reasons of national security is not subject to disclosure.” [2]

Before the 1993 Constitution, Peru already recognised the right of access to information through the ratification of the 1980 United Nations International Covenant on Civil and Political Rights [3] and the 1978 American Convention on Human Rights.

Article 13 of the American Convention on Human Rights states that “[e]veryone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds […] orally, in writing, in print, in the form of art, or through any other medium of one's choice.” [4]

Background and History

During the mandate of President Alan García (1985-1990), the country suffered a severe economic crisis and the onset of guerrilla insurgency the Peruvian government has still not been able to quash [5].

When Alberto Fujimori was elected president in 1992, he vowed to put the country's finances in order and stop the terrorist reign of Sendero Luminoso (The Shining Path) [6]. The Maoist guerrilla group camouflaged itself among civilians, while drawing much of its support from farmers and the indigenous population in the countryside. Many innocent persons were attacked by armed forces, partly because insurgents were difficult to identify [7].

According to Human Rights Watch, "Shining Path… killed about half the victims, and roughly one-third died at the hands of government security forces… The commission attributed some of the other slayings to a smaller guerrilla group and local militias. The rest remain unattributed" [8]

Fujimori, who was found guilty of human rights abuses in 2009, hid behind a barrier of secrecy to maintain his political legitimacy. The Peruvian Congress was dissolved in 1992 and many residents had their constitutional rights suspended when their towns were declared emergency zones.

Fujimori was elected once again in 1995 but stepped down when videos emerged showing Vladimiro Montesinos, director of national intelligence and his closest ally, paying journalists for editorial support. Several of the media owners who received payments from Montesinos were jailed or became fugitives during Alejandro Toledo’s presidency (2001-2006) [9].

According to a report by the Consortium for the Sustainable Development of the Andean Ecoregion (CONDESAN), the Montesinos corruption scandal is widely credited with the momentum that gave way to Peru’s 2002 Law of Transparency and Access to Public Information. [10]

Legislation

Public information is defined as any type of publicly funded documentation that is used as a base for any administrative decision. It can be in any format including photographs or recordings.

The public authority holding the information has seven working days to respond to the request. It can extend the deadline in extraordinary circumstances, provided the requester is notified, with reasons, within the first five days.

If the authority does not hold the information requested, it must notify the requestor and, if possible, tell him or her where this information can be found.

The fee charged for requesting each document is different for each administrative department. Article 13 states that the authority cannot deny information based on the identity of the requestor.

Government departments must send the information to the National Archives within a reasonable timespan. Here it can be destroyed if it has no public utility, and if no one has requested the information for a fair amount of time.

The law also requires government departments to publish information on their organisational structure, activities, regulations, budget, salaries, expenditures, and the activities of high-ranking officials on the websites they construct. Every four months, detailed information on public finances is published on the website of the Ministry of the Economy and Finance.

If he or she is not satisfied with the response, the requestor can file an appeal to a higher department, which has 10 days to respond. If there is no response within 10 days, the requestor can appeal administratively to the courts under Law N° 27444 or under Law N° 26301 for the constitutional right of habeas data.

Article 4 states that if public servants are found to have violated the access to information law, they will be sanctioned for misconduct or accused of Abuse of Authority, under article 377 of the Penal Code.

Exemptions

The law exempts information that may be damaging to national security and, by extension, military information that may risk territorial integrity. It also limits information that may endanger the survival of democracy, as well as the information that could affect personal privacy, financial institutions, international negotiations or the prevention of crime.

Internal communications within the government, containing advice, recommendations or opinions leading to a decision is also classified. If government officials make reference to these opinions after the decision is taken, the exemption no longer applies.

The executive power regulates the exemptions in the law, and the reasons for the each of the exemptions must be stipulated. Exemptions must be revised every five years "so as to evaluate declassification."

Information regarding the violation of human rights or the Geneva Convention cannot be classified. [1]

Operation

Peru’s access to information law was modified at the request of the Office of the Ombudsperson soon after it was adopted, because its definition of exemptions was not narrowly tailored.

The improved law is one of the most advanced in Latin America, according to the ombudsperson, Beatriz Merino, but there are still concerns about the way public authorities interpret and implement it.

During the Americas Regional Conference on the Right of Access to Information in 2009 Merino said a “culture of secrecy” prevails in Peru because access laws are often interpreted contrary to their objectives [9].

According to a 2011 report, which evaluated freedom of information laws in seven Latin American countries, Peru’s public authorities lack a protocol for responding and tracking requests. The report - which was, in part, the result of the researchers’ own freedom of information requests - states that access to data is not easy in Peru, compared to Mexico and Chile, which are hailed as models for information access in Latin America.

The release of information is often politicised, as the final decision on whether to release a particular piece of information often falls on a politician rather than a public servant, “and in the context of Latin America’s informal bureaucracies, in the case that he is a public servant, he often acts politically.” This tendency is exacerbated by the lack of ‘whistleblower’ protection in the law [11].

The Organisation of American States’ “Model Law” on access to information refers to a public interest test, similar to that of the UK Freedom of Information law, in which the publication of a document should not be denied unless the harm caused by releasing the information outweighs the public’s interest in disclosure [12]. However, Peru’s law does not enshrine this principle.

As in most South American countries, Peru’s national archives were created during the dictatorship to protect cultural and historical documents and to regulate the classification of this information. Today they are denied importance and sufficient resources, complicating access to historical information [11].

Recent developments

In May 2011, Suma Ciudadana, a citizen group that campaigns for social change through information, created a new website that gathers all decisions made by the Constitutional Court of Peru on access to public and private information [13].

Humala Ollanta won the June 2011 Presidential elections. Civil rights group Asociación Civil Transparencia reported 156 irregularities during the elections, which had to do with political proselytism. The newspaper Los Andes reported that, overall, the elections were transparent [14]. During a candidate questionnaire by the Institute of the Society and the Press (IPYS for its initials in Spanish) Ollanta said he would consider creating an independent state entity to resolve administrative complaints on access to information. [15]

In August 2011, Congress approved a law stating that the government must inform indigenous communities of any development project that will affect their land or territory, and will seek their free consent before undertaking it. Article 3 of the law states that public authorities must provide “sufficient information… in the language of the indigenous population that is being consulted, using the proper methodology to guarantee a real dialogue.” [16]

Bibliography

[1] Access law, http://www.produce.gob.pe/RepositorioAPS/1/jer/DERACUI/docs/ley_27086_ley_acceso_info_pub.pdf

[2]Political Constitution of Peru: Official Edition (English), 1993, http://www.congreso.gob.pe/_ingles/CONSTITUTION_29_08_08.pdf

[3] International Covenant on Civil and Political Rights: Status, United Nations, 16 December 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-4&chapter=4&lang=en#Participants

[4] American Convention on Human Rights “Pact of San Jose, Costa Rica,” 1978, http://www.oas.org/juridico/english/treaties/b-32.html

[5] Reuters. Peru army may have killed farmers – rights group. Oct. 9, 2008. http://www.reuters.com/article/2008/10/09/idUSN09325588

[6]United States Bureau of Citizenship and Immigration Services, Peru. Profile, 1 June 1995,  http://www.unhcr.org/refworld/docid/3ae6a61c0.html.

[7] Notholt, Stuart. Fields of Fire – An Atlas of Ethnic Conflict (Extended Edition), 2008, p. 3.08.

[8] Peru: Prosecutions Should Follow Truth Commission Report, August 28, 2003 http://www.hrw.org/en/news/2003/08/28/peru-prosecutions-should-follow-truth-commission-report

[9] BBC. Profile: Alberto Fujimori, 7 April 2009. http://news.bbc.co.uk/2/hi/americas/3112321.stm

[10] Bossio, Jorge. 2009 – Access to Information and Knowledge. CONDESAN, http://www.giswatch.org/country-report/20/peru

[11] CAinfo. Venciendo la Cultura del Secreto: Obstáculos en la implementación de políticas y normas de acceso a la información pública en siete países de América Latina. 2011. http://www.cainfo.org.uy/images/LIBRO%20-%20Venciendo%20la%20Cultura%20del%20Secreto.pdf

[12] Model Inter-American Law on Access to Information. Organization of American States. http://www.oas.org/dil/access_to_information_model_law.htm

[13] Suma Ciudadana. Proyectos. 2011. http://www.sumaciudadana.org/proyectos/

[14] Los Andes. Transparencia reportó 156 irregularidades la mayoría fue en Lima. 5 June, 2011, http://www.losandes.com.pe/Nacional/20110605/50777.html

[15] Torriti, Nicola. Perú: Respuestas de Ollanta Humala al cuestionario presentado por IPYS y el CPP. IPYS. 29 April, 2011. http://www.ipys.org/index.php?q=noticia/549

[16] Ley de consulta previa a los pueblos indígenas (law for previous consultation with indigenous populations), August 2011, http://servindi.org/pdf/Peru_LeyConsulta_aprobada.pdf

Page last modified on 30 sep 11 11:39

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