Argentina

International Focus

Argentina's Constitution doesn't contain a Freedom of Information law, but rather a patchwork of regulations with varying scopes and strengths. Article 43(3) recognizes the right to access and correct personal records held in public or private bodies (habeas data), and Article 41(2), established in 2004, gives citizens the right to information relating to the environment [1].

President Néstor Kirchner's 2003 decree guaranteeing access to public information perhaps approximates an FOI law the most though its scope is limited to documents within the jurisdiction of the Executive Power [2].

FOI advocates, both inside and outside congress, are pushing for a national law covering all sections of government. Several versions of an FOI bill have ricocheted between the two houses of congress between 2003 and 2010, but none of them have been signed into law. The latest one, guaranteeing public access to information held by all three branches of government, was accepted by the Senate in September 2010, but it has not yet been approved by the House of Representatives.

The Senate's approval of the bill was lauded by the Interamerican Commission on Human Rights, an autonomous organ of the Organization of American States (OAS) [3], but Natalia Torres, senior researcher at the Centre for Studies of Freedom of Expression and Access to Information, is more sceptical. If the bill is modified in the Lower House and sent back to the Senate, rather than approved immediately, there is a good chance it will run out of time this legislative session and languish [4].

Some local governments have enacted their own FOI laws, and Buenos Aires, the capital city, has an Access to Information Statute since 1994 (Ley 104) [5].

Background and History

Argentina is divided into 23 provinces, the federal district and capital of Buenos Aires.The Center for the Implementation of Public Policies for Equity and Growth (CIPPEC, for it's initials in Spanish) says 12 out of the 23 provinces honour the right to public information in their constitutions, and five of them have freedom of information laws [6].

The first freedom of information law was passed in the province of Río Negro in 1984, but similar to the 1992 law in the province of Chubut, it only benefits persons residing there. The 1989 northwestern province of Jujuy passed a statute establishing freedom of information for all and, following the same principle, the city of Buenos Aires passed its own freedom of information legislation in 1999. The bill encountered little resistance in Congress.

In 2002, President Néstor Kirchner introduced a nation-wide freedom of information bill, which failed to pass, and presented the Access to Public Information Regulation by decree the year after [7].

Looking back at Congress archives, there are dozens of freedom of information bills with different provisions and limitations since 2002 [8], showing a political impulse that fails to materialise. Many bills are not discussed within the congressional session and are abandoned.

Freedom of information advocates such as Martha Farmelo and Silvana Fumega suggest that many politicians introduce bills for political proselytism but do not have the intention to follow them through. Others, like Congresswoman Elisa Carrió, have dedicated much of their career to getting an FOI law passed [7].

President Kirchner's decree: Legislation

Though the scope is limited, freedom of information advocates generally consider the legislation "good" [9].

The information given should be free - unless it must be copied - and any person can request it without stating a motive. Public agencies must answer a requester within ten days, and any person who does not receive the information asked for has a right to file an administrative appeal to a higher authority under the Administrative Procedure Act.

Article 5 defines information as any "document written, photographic, recording, whether magnetic, digital or in any other format" financed totally or partially by public funds.

Together with the regulation, the government created a website listing and providing access to state agency websites and provides information about public meetings. The government website, publishes budget information, public money spent as required by section 8 of Law 25.152 [10].

Exemptions and Limitations

Documents and information that may affect national defence, foreign policy, trade secrets, and information protected by privacy laws, is exempt.

Advocates are pushing for a national law with access to all sections of government, and one that is considerably stronger: The decree can be amended at any time by the Executive Power.

Operation

A 2004 Open Society Justice Initiative report, which monitored FOI laws in 14 countries, showed that 40 percent out of 140 information requests were met with "mute refusal", and 17 percent yielded information .

The survey found that 22 per cent of the requests filed with the Buenos Aires institutions under law 104 resulted in information. Among those filed with the central government, only 7 percent were effective. Requesters in Buenos Aires received more information than in other parts of Argentina.

The report also considered cases in which requesters were blocked from submitting their FOI request by failing to process the request or refusing to accept it. In Argentina, 4 percent of the 104 requests were not processed, and 1 percent of the requests were outright rejected.

One example that the report deemed typical was that of a low-income woman who attempted to submit a request at the Ministry of Social Development and was sent from one section to the next. Her request never reached the hands of an officer responsible for answering it [11].

Recent developments

The freedom of information bill is still to be taken up by the House of Representatives, but even slating it for discussion in Congress has become highly politicised.

A May 4, an article from El Clarín, one of Argentina's major newspapers, said that while the opposition is pushing for FOI to be discussed, the 'oficialistas' say they will not approve the bill unless amendments are made and it is sent back up to the higher chamber. This may push the discussion outside the time frame of the congressional session - "in other words, it won't become a law." [12]

Still, there are other, more positive, developments for FOI supporters.

President Cristina Fernandez de Kirchner ordered by decree that all information and documents from the military during the period of military dictatorships in Argentina be declassified [13].

Around 18,000 people disappeared and many were detained illegally, tortured and killed at the hands of the military between 1976 and 1983, according to official figures. This move is part of a larger push to try members of the military for crimes against humanity.

Bibliography

[1] Argentina's Constitution, http://www.biblioteca.jus.gov.ar/Argentina-Constitution.pdf

[2] Access to Public Information, Decree 1172/2003, http://infoleg.mecon.gov.ar/infolegInternet/anexos/90000-94999/90763/nor...

[3] "Report of the Special Rapporteur on Freedom of Expression," Interamerican Commission on Human Rights Annual Report 2010, http://www.cidh.oas.org/annualrep/2010sp/RELATORIA_2010_ESP.pdf

[4] Torres, Natalia, "Argentine's Access to Information Law: A Tale of Two Chambers", January 14, 2011, http://www.freedominfo.org/2011/01/argentines-access-to-information-law-...

[5] Ley 104, http://www.cedom.gov.ar/es/legislacion/normas/leyes/ley104.html

[6] CIPPEC, "Information, key in influencing public policy," 26 May, 2008, http://www.cippec.org/prensa_det.php?idprensa=101

[7] Farmelo, Martha. "The Freedom of Information Campaign in Argentina," September 2003, http://www.freedominfo.org/documents/farmelo.pdf

[8] Honourable Senate of Argentina, bill search, http://www.senado.gov.ar/web/proyectos/buspal.php

[9] Banisar, David. freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, updated July 2006, http://www.freedominfo.org/wp-content/uploads/documents/global_survey200...

[10] Administration of Public Funds. Law 25.152. 25 August 1999, http://infoleg.mecon.gov.ar/infolegInternet/anexos/60000-64999/60039/tex...

[11] Open Society Justice Initiative. "Transparency & Silence: A Survey of Access to Information Laws and Practices in 14 Countries," 2006, http://www.ip-rs.si/fileadmin/user_upload/Pdf/Publikacije_ostalih_poobla...

[12] Gutierrez, Alfredo. "Negocian el tratamiento de prepagas y antelavado", Clarin, 4 May 2011, http://www.ieco.clarin.com/economia/Negocian-tratamiento-prepagas-antila...

[13] EFE. "Fernández levanta secreto a documentos militares de dictadura argentina", hosted on El Nacional, Venezuela. http://el-nacional.com/www/site/p_contenido.php?q=nodo/115666/Internacio...