Chapter 3. Towards a more solid legal and regulatory framework for open government in Argentina

A robust legal and regulatory framework is one of the essential building blocks and necessary pre-conditions for the successful implementation of open government strategies and initiatives. This chapter therefore analyses Argentina’s main legal and regulatory underpinnings for open government reforms and includes a discussion of the framework provided by the Argentinian constitution and the solid basis it forms for open government. The chapter recognises the important progress Argentina has made through the adoption of the Law on the Right of Access to Public Information in 2016 and provides an in-depth analysis thereof. The last part provides recommendations to support the ongoing elaboration of a State Modernisation Law.

    

The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law.

Introduction

A robust legal framework is a necessary pre-condition for the successful implementation of open government reforms.

A robust legal and regulatory framework sets out the rules and determines rights and obligations both for stakeholders and the government. A solid legal framework provides legal certainty to all actors involved in open government reforms and enables governments and citizens to effectively implement policies. In order to ensure public support and adherence, it is crucial that all laws and regulations are created together with relevant stakeholders, formulated in an understandable way and publicly communicated. As a matter of course, it is crucial that the government respects and protects the legal provisions and that independent oversight arrangements exist to enforce these rights. The second provision of the OECD Recommendation on Open Government therefore suggests that countries “ensure the existence and implementation of the necessary open government legal and regulatory framework” (Box 3.1).

Box ‎3.1. Provision 2 of the OECD Recommendation of the Council on Open Government

“Ensure the existence and implementation of the necessary open government legal and regulatory framework, including through the provision of supporting documents such as guidelines and manuals, while establishing adequate oversight mechanisms to ensure compliance.”

Source: OECD (2017), Recommendation of the Council on Open Government, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438 (accessed 30 November 2018).

OECD experience shows that the underlying legal basis for open government can take various forms. It can include, among others, open government principles in national constitutions, regulations on stakeholder participation (as discussed in Chapter 6 on Citizen and Stakeholder Participation), anti-corruption, the protection of personal data and national archives, as well as legislation guaranteeing the freedom of the press, and laws on digital government and open data and whistle-blower protection.

This chapter analyses the legal and regulatory framework for open government in Argentina. It includes a discussion of the framework provided by the Argentinian Constitution and an in-depth analysis of the 2016 Access to Information Law, and provides recommendations to support the ongoing elaboration of a State Modernisation Law. An analysis of anti-corruption legislation, such as laws on lobbying and provisions regulating cases of conflict of interest, can be found in the OECD Integrity Review of Argentina (2019a). Likewise, an analysis of the Argentinian laws on digital government and open data, is included in the Digital Government Review of Argentina (2019b). The present Review should be read in conjunction with these two Reviews. Recommendations build on and reinforce each other.

Making effective use of the strong constitutional basis for open government

The Constitution of Argentina contains a number of provisions on open government principles.

Similar to most OECD countries, the National Constitution of the Argentine Republic does not include a specific reference to the concepts of open government or the open state. However, the Constitution contains a number of provisions concerning transparency, accountability, integrity and stakeholder participation. In particular:

  • Article 14 recognises the “right to petition the authorities” and the “right to publish ideas by the press without censorship” (these two rights have historically been considered the origin of the right to public information access).

  • Article 32 stipulates that the “Federal Congress shall not enact laws restricting the freedom of the press or establishing federal jurisdiction over it”.

  • Article 33 determines that “the declarations, rights and guarantees which the Constitution enumerates shall not be construed as a denial of other rights and guarantees not enumerated, but rising from the principle of sovereignty of the people and from the republican form of government”. The Article therefore establishes equality between clearly stated rights and implied ones.

  • Article 38 recognises political parties as basic institutions of the democratic system and guarantees their access to public information.

  • Article 41 gives citizens the right to information relating to the environment. Together with Article 42 it is the only provision specifically guaranteeing free access to public information.

  • Article 42 states that when referring to users and consumers, the “right to adequate and truthful information” and the “duty of public authorities to provide protection of those rights” is required.

  • Article 43 recognises the right to access and correct personal records held in public or private bodies.

Derived from Article 75, paragraph 22 of the Constitution, specific international treaties have constitutional hierarchy in Argentina and complement the rights guaranteed by the Constitution. For example, the United Nations Convention against Corruption (United Nations, 2014) and the Inter-American Convention against Corruption (1997) promote transparency, access to public information and the participation of civil society in the fight against corruption (Articles 10 and 13, paragraph 5 of its Preamble and Articles III.11 and XIV.2, respectively).

Additionally, the American Convention of Human Rights (OAS, 1969) defines the “right to freedom of expression”, which includes “seeking, receiving and divulging information and ideas of all kinds” (Article 13). The Universal Declaration of Human Rights (United Nations, 1948) protects the right of access to information by establishing that: “Everyone has the right to freedom of opinion and expression”, understanding that this right includes the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Article 19). The International Covenant on Civil and Political Rights (United Nations, 1976) aims to protect access to information and the right to freedom of expression as a collective right (Article 19).

The Constitution provides a strong basis for the development of open government strategies and initiatives.

The constitutional provisions mentioned above provide the actors of the national open government agenda with a strong mandate to promote open government principles. Having open government principles enshrined at the highest possible legal level creates the necessary legal certainty and legitimacy for effective implementation of all subsequent legislation and can ensure the necessary framework for open government initiatives and strategies. It will, for instance, be important to refer back to constitutional provisions when developing a National Open Government Strategy (see Chapter 2 on the Policy Framework).

This is aligned with the practice of other countries around the world who have also codified open government-related principles in their constitutions (Box 3.2). The same applies to countries in Latin America. For instance, Colombia’s 1991 Constitution stipulates that “Colombia is a Social State of Law organised as a unitary republic, decentralised, with autonomy of its territorial units, democratic, participatory and pluralistic” (Article 1). It further establishes that “(t)he essential goals of the state are ... to facilitate the participation of all in the decisions that affect them and in the economic, political, administrative and cultural life of the nation”. Peru’s 1993 Constitution includes provisions on the right of citizens to access and request public information (Article 2), government accountability (Article 31) and transparency (Article 40). In Costa Rica, the principles of an open, participatory and transparent government also are enshrined in the constitution. The 1917 Mexican Constitution includes a wide range of articles that build the constitutional basis and set the ground for open government. The Constitution includes a number of open government principles. According to Article 6 of the Constitution, “the state shall guarantee the right to information”. According to Article 35, citizens have the right to vote and “initiate laws in the terms and with the requirements appointed by the Constitution and the Law of the Congress” (Article 35) and “to vote in a referendum on topics of national importance”, as enacted by a decree published in 2012 (Tribunal Electoral, 2013).

Box ‎3.2. Examples of open government-related principles in national constitutions of countries outside Latin America and the Caribbean

Norway’s Constitution, first adopted in 1814, has been amended over the years to reflect an ever-deepening commitment to openness and transparency. It emphasises the citizens’ right to trustworthy information: “Everyone has a right of access to documents of the State and municipal administration and a right to follow the proceedings of the courts and democratically elected bodies. (…) It is the responsibility of the authorities of the State to create conditions that facilitate open and enlightened public discourse.”

Sweden’s Constitution states that citizens possess the right to freely seek information, organise and hold demonstrations, and found and join political parties. These rights are part of the Constitution, which is based on four fundamental laws: the Instrument of the Government, the Freedom of the Press Act, the Fundamental Law on Freedom of Expression and the Act of Succession. In 1766, Sweden became the first country in the world to incorporate the Freedom of the Press into its constitution. Freedom of the Press is based on freedom of expression and speech, which are among the most important pillars of democracy. In accordance with this principle, those in authority must be held accountable and all information must be freely available. The identities of people who work as sources and provide publishers, editors or news agencies with information are protected. The law on Freedom of Expression was passed in 1991 to expand this protection to non-print media, such as television, film and radio. The law moreover seeks to ensure an unimpeded exchange of views, information and artistic creativity.

Morocco’s new Constitution of 2011 introduced important changes and endorsed the principles of good governance, public service integrity, transparency, accountability, participatory democracy and access to public information. The Constitution guarantees freedom of thought, opinion and expression in all their forms (Article 25), freedom of public information (Article 27) and freedom of the press, which cannot be limited by any form of prior censure (Article 28). According to the constitution, public services are to be organised on the basis of equal access for all citizens, equitable coverage across the national territory and continuity of the services’ provision, while being held to standards of quality, transparency, accountability and responsibility (Article 154).

Based on the demands for further inclusion and less corruption during the Arab Spring, Tunisia’s 2014 Constitution sets the basis for Tunisian citizens and civil society organisations (CSOs) to actively participate in the cultural, social and political life of their country. Article 139 states that local authorities must adopt instruments of participative democracy to ensure the broadest participation by citizens and civil society in preparing and implementing territorial development projects as stipulated under the law. Article 8 stipulates youth participation, and Article 8 requires the declaration of assets. The Constitution further guarantees the right to be elected (Article 34); the right to peaceful assembly and protest (Article 35); transparency and accountability (Article 15); the protection of personal data and privacy (Article 25); and freedom of opinion, expression, thought, information and publication (Article 31), stating that these cannot be submitted to ex ante controls. Article 32 establishes the right of information, access to information and access to communication networks. Article 127 creates a Commission that guarantees freedom of expression, the right of access to information, and a pluralistic and honest media landscape.

Indonesia’s 1945 Constitution recognises explicitly the right to associate, assemble and express opinions. Subsequent laws and other legal instruments have further ensured and delineated the rights of civil society organisations, as well as the public’s right to monitor the delivery of public services and participate in policy planning and evaluation. The country’s legal and policy framework also provides support for the protection of whistleblowers and establishes the foundation for public participation in the overview of public service provision, including via the creation of the National Ombudsman Commission (OECD, 2016).

Source: Thurston, A. (2013), “Openness and information integrity in Norway”, Open Government Partnership Blog, www.opengovpartnership.org/blog/dr-anne-thurston/2013/10/15/openness-and-information-integrity-norway; Government of Sweden (n.d.), “Openness shapes Swedish society”, webpage, https://sweden.se/society/openness-shapes-swedish-society (accessed 17 December 2018); OECD (2015), Open Government in Morocco, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264226685-en; OECD (2016), Open Government in Tunisia, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264227118-en; Tribunal Electoral (2013), “Political Constitution of the United Mexican States”, Diario Oficial de la Federación, 5 February 1917, http://portal.te.gob.mx/sites/default/files/consultas/2012/04/cpeum_ingles_ref_26_feb_2013_pdf_81046.pdf; OECD (2016), Open Government Review of Indonesia, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264265905-en.

Fostering the effective implementation of the Law on Access to Information

The right to access public information is a cornerstone of open government.

The right to access government information is a necessary legal foundation for transparency, accountability and citizen participation in policy making (OECD, 2014). Access to information allows citizens to improve their understanding of the government’s role, of the design of public policies and of how public funds are spent. By enabling citizens to inquire, scrutinise and participate in governments’ decision making, access to information can play a pivotal part in reducing corruption and holding government representatives accountable for their decisions. Moreover, access to information can increase citizens’ trust in institutions and more informed citizens can better articulate their demands and raise awareness about the government’s need to act.

Access to information can take various forms, including access to public records and data, the publication of official gazettes and the provision of information on government websites. Access to information laws usually not only regulate the proactive and automatic public disclosure of information prior to citizens’ request, but also stipulate the details and procedures for information requests. While the legal form matters, the attributes of the information made public, for instance its relevance and usability for citizens, are equally important. Access to information provisions are thus a necessary, but not sufficient condition to enable citizens to hold the government accountable and participate in policy making (World Bank, 2016).

Access to information laws are today a central element of the open government legal framework of many countries. All but one OECD countries have adopted dedicated Access to Information (ATI) or Freedom of Information (FOI) laws (OECD, 2016a). Worldwide, more than 100 countries and approximately 65% of countries in Latin America and the Caribbean (LAC) have passed such laws (OECD, 2016a).

While ATI and FOI laws generally reflect a country-specific context, the majority of them contain the following elements: objectives, principles and scope of the access to information; proactive disclosure of information; procedure to request information (how and where to request information, response to the request, denials); exemptions; and appeals procedures. The following sections benchmark Argentina’s Law on the Right of Access to Public Information against each of these elements.

Argentina adopted its first Law on the Right of Access to Public Information in 2016.

In terms of its legal framework for open government, Argentina has made significant progress over recent years. Previously, access to information at the national level was regulated through Decree 1172 from 2003. Enacted with the aim of improving the quality of democracy, the decree signed by President Kirchner obliged only the executive branch to provide public information. Following the discussion of several bills on access to information in Congress and years of political debate and campaigning, Argentina reached an important milestone in the facilitation of access to public information with the adoption of the Law on the Right of Access to Public Information (Ley de Derecho de Acceso a la Información Pública, Law 27.275) in 2016. By extending the previous Decree’s scope and obligations to all branches of the state, its purpose is pursuant to Article 1 “to guarantee the effective exercise of the right of access to public information, to promote citizen participation and transparency in public management”.

While Argentina’s ATI law entered into force considerably late compared to the countries in the rest of the region, the legal quality of its access to information legislation lies, according to the Right to Information (RTI) Rating, slightly above the OECD average, but ranks lower than the average of Latin American countries (Figure 3.1). It is, however, noteworthy that the Rating only examines the quality of the legal provisions and does not include implementation-related elements. Nevertheless, the legal quality of Argentina’s Access to Information law is indicative of the progress the country has made and illustrates the importance attached to the fundamental right of access to information.

Figure ‎3.1. The quality of legal provisions in Argentina’s Access to Public Information Law compared to OECD countries
Figure ‎3.1. The quality of legal provisions in Argentina’s Access to Public Information Law compared to OECD countries

Note: The maximum achievable composite score is 150 and reflects a strong RTI legal framework. The global rating of RTI laws is composed of 61 indicators measuring seven dimensions: Right of access, Scope, Requesting procedures, Exceptions and refusals, Appeals, Sanctions and protection, and Promotional measures. The LAC countries are: Argentina, Brazil, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and Uruguay. No data are available for Costa Rica and Luxembourg.

Source: Access Info Europe (AIE) and Centre for Law and Democracy (CLD), Right to Information Rating, webpage, www.rti-rating.org, (accessed 17 December 2018).

Argentina’s ATI Law applies to all public institutions at national level but not to the subnational level.

Some countries have ATI laws in place that exclude branches of power other than the executive or make exceptions for state-owned enterprises or subnational levels of government. Table 3.1 provides an overview of the breadth of freedom of information laws in OECD countries. By replacing and expanding the application of Decree 1172, which granted access to public information only within the scope of the executive branch, Argentina’s 2016 ATI law horizontally obliges all public institutions – independent of level of autonomy or branch of state – to create and enable citizens’ access to information.

Table ‎3.1. Breadth of freedom of information laws (2010)

Total OECD member countries

Level of government

Central

31

Australia, Austria, Belgium, Canada, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Russian Federation, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States.

Subnational

25

Austria, Belgium, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Hungary, Iceland, Ireland, Israel, Italy, Korea, the Netherlands, New Zealand, Norway, Poland, Portugal, the Russian Federation, the Slovak Republic, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom.

Branches of power at the central level

Executive

31

Australia, Austria, Belgium, Canada, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Russian Federation, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States.

Legislative

16

Belgium, Chile, Estonia, Finland, Hungary, Ireland, Israel, Italy, Korea, Mexico, Poland, the Russian Federation, the Slovak Republic, Slovenia, Sweden, Turkey, Ukraine and the United Kingdom.

Judicial

16

Australia, Belgium, Chile, Estonia, Finland, France, Hungary, Israel, Italy, Korea, Mexico, Norway, Poland, the Russian Federation, the Slovak Republic, Slovenia, Sweden and Ukraine.

Other bodies

Private entities managing public funds

18

Australia, Belgium, the Czech Republic, Estonia, Finland, France, Hungary, Iceland, Italy, Korea, the Netherlands, Poland, Portugal, the Slovak Republic, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

Source: OECD (2011), Government at a Glance, OECD Publishing, Paris, http://dx.doi.org/10.1787/gov_glance-2011-en.

Similar to other countries with a federal structure (such as Germany, see Box 3.3), legislation passed at national level in Argentina does not apply directly to the provincial or municipal levels. The Constitution, however, provides the possibility for provinces to declare a federal law applicable in their territory. Article 36 of the ATI law explicitly invites the provinces and the Autonomous City of Buenos Aires to adhere to the provisions of the national law. However, none of the provinces participating in the OECD Survey has so far adhered to the law.

Despite this, provinces have their own legal provisions for access to information. For instance, 12 provinces have enshrined the right to public information in their own constitutions (CIPPEC, n.d.). At the same time, 20 provinces have adopted their own ATI legislation (see Table 3.2), which takes the form of decrees or laws and varies in terms of scope and depth of the access to information. Currently, six provinces, namely Formosa, La Pampa, La Rioja, Mendoza, San Juan and Tucumán, neither have a specific law regulating the access to information nor adhere to the national ATI law.

To increase legal certainty for citizens and to guarantee effective access to information at all levels of the state, the national government could inform and encourage all provinces to adopt legislation on the access to information and ensure the effective implementation of existing legislation at the provincial level.

Table ‎3.2. Subnational legislation regulating the access to information

Buenos Aires

Law No. 12.475 and Decree No. 2549/04

Catamarca

Law No. 5336

Chaco

Law No. 6.431

Chubut

Law No. I-156

Ciudad Autónoma de Buenos Aires

Law No. 104 (text subrogated by Law No. 5.784) and Decree No. 260/17

Córdoba

Law No. 8803

Corrientes

Law No. 5.834

Entre Rios

Decree No. 1169

Jujuy

Law N° 5886 and Decree No. 1451/2016

Mendoza

Law No. 9070

Misiones

Law IV No. 58 and Decree No. 846/2012

Neuquén

Law N° 3.044

Río Negro

Law No. 1829 and Decree No. 1.028/2004

Salta

Decree No. 1574/02, Decree No. 3568/09, Decree No. 2187/11 and Article 23 of the Provincial Constitution

San Luis

Law No. V 0924-2015

Santa Cruz

Law No. 3.540

Santa Fe

Decree No. 692/2009

Santiago del Estero

Law No. 6.753

Tierra del Fuego

Law No. 653

Source: OECD Survey and www.argentina.gob.ar/interior/asuntos-politicos/subsecretaria-de-reforma-institucional-y-fortalecimiento-de-la-democracia/normativa-provincial-en-acceso-informacion-publica.

Box ‎3.3. Federal and subnational ATI laws in Germany

In 2005, Germany passed a federal access to information law (Gesetz zur Regelung des Zugangs zu Informationen des Bundes) that grants citizens an unconditional right to access official federal information. As a result, the German Commissioner for the Protection of Personal Data took on the role of Commissioner for the Freedom of Information. The German ATI law only obliges institutions at federal level to grant access to information. It is therefore the responsibility of the 16 states (the German Bundesländer) to enact their own subnational ATI laws for the publication of documents held by their authorities. Each Land also has its own Commissioner for the Protection of Personal Data (who may also take on the role of Commissioner for the Right to information, depending on the legislation in effect).

In addition, special laws such as the Environmental Information Act (Umweltinformationsgesetz) and the Consumer Information Act (Verbraucherinforamtionsgesetz) also oblige states without a Freedom of Information Act to publish information on environmental and consumer issues.

To date, 10 German States have passed ATI laws that allow for access to information requests at all subnational levels and 3 States have adopted transparency laws that oblige subnational authorities to additionally proactively disclose information. Only 3 out of the 16 States have not yet adopted an own ATI law.

Source: Transparenzranking (n.d.), “Open Knowledge Foundation Germany & Mehr Demokratie e.V.” (webpage), https://transparenzranking.de/ (accessed 17 December 2018); Federal Ministry of Justice and Consumer Protection (2006), “Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act)” (webpage), www.gesetze-im-internet.de/englisch_ifg/h (accessed 17 December 2018). FreedomInfo.org (2005), “German Federal Data Protection Commissioner to Become Freedom of Information Commissioner” (webpage), www.freedominfo.org/2005/08/german-federal-data-protection-commissioner-to-become-freedom-of-information-commissioner (accessed 17 December 2018).

Proactive disclosure of information in Argentina exceeds OECD practice.

Proactive disclosure (i.e. the availability and publication of relevant government information without prior public request) is an important instrument to increase the transparency and openness of the public sector. The voluntary disclosure of information allows citizens to directly access information while avoiding (sometimes lengthy and costly) administrative procedures to request information. For public institutions, proactive disclosure can cut down the administrative burden associated with handling and answering individual ATI requests.

All OECD countries are making government information available without prior request. In most cases, ATI laws include a list of documents and information that all institutions are required to publish proactively. In 72% of OECD countries, ATI legislation requires proactive disclosure of specific documents and information. However, the kind of information that needs to be published proactively varies across the OECD. While a majority of countries proactively disclose budget documents (94%), annual ministry reports (84%) and audit reports (72%), a smaller number (28%) (including Chile, Estonia, Iceland, Israel, Italy, Mexico, the Netherlands, Turkey and the United Kingdom) proactively publish the list of public servants and their salaries (OECD, 2011) (Figure 3.2).

Figure ‎3.2. Proactive disclosure of information by the central government in OECD member countries (2010)
Figure ‎3.2. Proactive disclosure of information by the central government in OECD member countries (2010)

Note: Data are not available for Germany and Greece. Luxembourg and Brazil are currently drafting laws on access to information. Some categories of information are required to be disclosed by laws other than FOI. Freedom of information procedures in Austria are required to be published by the general law for administrative procedures (Allgemeines Verwaltungsverfahrensgesetz, or AVG). Chile, Estonia and Israel publish information on the salaries of all public servants, whereas Hungary, Italy, Mexico, the Netherlands, Turkey and the United Kingdom publish salary information for some public servants, such as managers who earn at the top of salary scales.

Source: OECD (2011), Government at a Glance 2011, OECD Publishing, Paris, http://dx.doi.org/10.1787/gov_glance-2011-en.

Argentina’s Access to Information law is in line with the practice of the most advanced OECD countries in this area. Article 32 establishes that all institutions listed in Article 7 (with the exception of those indicated in subparagraphs (i) and (q)) must proactively “publish in a complete, updated form, by digital means and in open formats” a wide selection of information. In contrast with other countries, Argentina’s proactive disclosure of information applies to all branches and institutions (including state-owned enterprises, statutory and oversight bodies, and private bodies performing public functions or receiving considerable public funding), subject only to limited exceptions. Regarding the classes of information made public, the right of access covers all material held by public institutions in all formats, regardless of who created it.

While the law specifies that the information must be made available by digital means, it does not establish where exactly this information should be published. For instance, 81% of OECD countries proactively disclose information on a central website. This becomes particularly relevant given the proliferation of open data portals in Argentina, a development that was identified in the OECD Digital Government Review of Argentina (2019b) and which affects the discoverability of data for stakeholders. Pursuant to Decree 117/2016, ministries, secretariats and agencies of the executive branch (currently 28 participating organisations) are obliged to only publish a limited amount of information and data, such as the executive’s organigram, the payroll of hired personnel, salary scales, budget appropriations and requests for access to information through the National Portal of Public Data (Datos.gob.ar).

Stakeholders need clear and simple procedures to request information.

The quality of an ATI law depends to a great extent on the degree of accessibility that is established by the law, the ease of filling requests and the individual protection granted to information seekers. Narrowly defined eligibility conditions to request information, long response times, or unjustifiably or inappropriately high request fees are all aspects that can limit or actively undermine the access to information for citizens.

As in 71% of OECD countries (OECD, 2011), the Argentinian ATI law does not entail any legal restrictions regarding the status of applicants. Article 1 stipulates that “all information in the power, custody or control of the regulated entity must be accessible to all persons”. Reinforcing the notion of non-discrimination, the article further holds that “information must be provided to all persons who request it, on an equal basis, excluding any form of discrimination and without requiring expression of cause or reason for the request”. Article 4 further specifies that “any human or legal person, public or private, has the right to request and receive public information, and the applicant may not be required to give reasons for the request, to demonstrate a subjective right or legitimate interest, or to have legal sponsorship.”

However, by requiring applicants to provide their identity and contact details, Argentina’s ATI law does not permit anonymous information requests. Pursuant to Article 9 of the Argentinian ATI law, the request for information can be made “in writing or by electronic means and without any formality other than the identity of the applicant, clearly identify the information requested and the contact details of the applicant, for the purpose of sending him/her the information requested or announcing that it is available”. The law thus does not recognise the validity of oral requests. Such practice does not follow the principles set out by the Organization of American States’ (OAS) Model Law on Access to Public Information, which stipulates that any person making a request for information in writing, by electronic means or orally to any public authority shall be entitled to, among other things, make an anonymous request for information. Similarly, Article 4.2 of the Council of Europe’s Convention on Access to Official Documents determines that “parties may give applicants the right to remain anonymous, except when disclosure of identity is essential in order to process the request” (Council of Europe, 2009).

However, only a few OECD members have established strong provisions to protect the privacy and integrity of parties and individuals seeking access to public information (OECD, 2016b). Examples of such provisions that allow for anonymous requests can be found in ATI laws in seven countries. In Finland, for example, the person requesting information does not need to identify him/herself nor provide reasons for the request, unless this is necessary for the exercise of the authority’s discretion or for determining if the person requesting information has the right to access the document (OECD, 2016b). In other countries, such as Australia, Ireland, the Czech Republic, Mexico, the United Kingdom and the United States, anonymity is de facto given, as authorities do not require applicants to provide proof of identity (Figure 3.3). In Canada, federal law protects the identity of the applicant. Moreover, the same article obliges institutions to provide applicants with a record of the request procedure.

Figure ‎3.3. Individual protection granted to those requesting information
Figure ‎3.3. Individual protection granted to those requesting information

Source: Based on OECD (2011), Government at a Glance 2011, OECD Publishing, Paris, http://dx.doi.org/10.1787/gov_glance-2011-en.

It is important to provide citizens with guidance on how and where to request government information. Argentina’s ATI law does not specify the exact place where information requests can be submitted. The law only states that “the request for information must be submitted to the obligated subject [entity obliged by the law] who possesses it or is presumed to possess it”. It is not specified whether entities bound by the law are required to provide online portals, hotlines or contact persons where information can be requested. Moreover, Article 9 of the ATI law obliges institutions to provide requesters with a record of the request procedure. This practice is in line with international good practice, whereby applicants receive a receipt or acknowledgement of their request within a reasonable timeframe.

While those responsible for access to public information are required to assist applicants in the preparation of requests and to guide them to the entities that could be in possession of the required information (Article 31), the law does not contain any provisions on supporting documents such as guidelines and manuals.

In order to ease the process of requesting information, Argentina has started to standardise and homogenise information request procedures. Article 24(k) of the ATI law obliges the executive’s Agency of Access to Public Information (AAPI) to “develop guiding criteria and indicators of best practice for the regulated entities”. To this end, Resolutions 4 and 48/2018 of the AAPI establish internal guidance criteria for the proper interpretation and implementation of the ATI law and the consequent improvement of the exercise of the right of access to public information. The Resolutions include, for instance, a criterion (criterion 7) to allow for electronic communication channels and access via public information portals on the institutions’ websites. While this represents a first step in making the procedure more citizen-friendly, further steps such us the development of a single online request form or uniform guidelines on how to request information, as designed by Tunisia (Box 3.4), could be explored by the executive’s institutions, in collaboration with the other powers of the state.

Box ‎3.4. ATI Manual in Tunisia

In order to guide and inform citizens, civil society and journalists in Tunisia about their right to access information, the OECD has developed a simplified manual in co-ordination with the Access to Information Commission and Article 19, as part of the OECD’s support to Tunisia to promote open government reforms.

In easy language and Tunisian dialect it explains, among others, how to make a request, to whom a request can be made and how to appeal a negative decision of the country’s oversight institution.

Source: OECD (2018), Right to Access Information – Tunisia, www.oecd.org/mena/governance/right-to-access-information-2018.pdf.

Reasonable and clearly defined fees help encourage stakeholders to request information.

According to the OAS Model Law on Access to Public Information, it is generally acceptable for administrative authorities to charge a reasonable fee for a request. A distinction should be made between access to documents that are already available and access to information that involves research, elaboration or processing on the part of the administration. In this regard, all OECD countries, with the exception of Iceland and Poland, apply fees at one or more stages of the information request process, most often to cover the cost of reproduction. In about half of the countries, fees are also related to the cost of sending the documents, although several countries (such as Australia and Finland) waive these fees if the information is sent electronically. Most fees are variable, meaning that they depend on the number of pages to be reproduced or the amount of time required to process the request (for example). When a variable fee can be charged, a cap on the size of this fee is applied only in a limited number of countries (Austria, Finland, France, Italy, Norway and Portugal) (OECD, 2011).

Pursuant to Article 1 and Article 6 of the Argentinian ATI law, access to information is free from any fees as long as reproduction of public information is not required. Costs of reproduction associated with the request of information, which are determined by each entity, have to be borne by the applicant. To ensure consistency between institutions and avoid illegal costs, it is important that the fees set for the reproduction as well as the potential delivery of information are set centrally and remain the same for each entity providing information. In that regard, Resolution 4/2018 of the Agency also sets guiding criteria regarding the costs of reproduction for all obliged public institutions. Following the principle that all information requested must be provided free of charge, criterion 6 of the Resolution’s Annex stipulates that if an electronic version of the information requested is not available, obliged institutions must “deliver a paper copy or allow reproduction through electronic means”. Should the requested document not exceed 50 pages and in the event that the institution has the means to reproduce copies, the costs of reproduction shall be borne by the respective institution. Only if the requested information exceeds 50 pages or the obliged institution does not have the means to reproduce documents, will the applicant be accompanied to make photocopies on his or her own account.

Exceptions to the right of access to information can be applied

In the event that a request to access public information is rejected, the OAS Model Law on Access to Public Information proposes that the requester be informed of the reason and legal justification for not providing the information, as well as the possibility to appeal the decision. To this effect, ATI legislation generally identifies a list of exemptions to the access to information right. This means that by law some institutions are allowed to withhold certain types of information. Following the legal standards represented by the RTI Ranking and the OAS Model Law on Access to Public Information, two issues must be considered when applying exceptions to the right to access public information:

  • Grounds: the protection of legitimate public or private interests

  • Legislative constraints on administrative discretion: absolute exemptions, the harm test, relative exemptions and the balancing test.

Class tests and harm tests are two common ways to exempt information. Under class tests, access to any information that falls within a certain category (e.g. national security) can be denied. Under harm tests, the government can deny a request for information on the basis that disclosure would cause potential damage, for example to an individual or to the defence of the state (the two most commonly used harm tests). The class tests applied by the greatest number of OECD countries concern exemptions related to national security, international relations and personal data. Exemptions to ATI requests can be either mandatory (the public entity is required to withhold the information) or discretionary (public entities can use their judgement to withhold or disclose information) (OECD, 2011).

The Argentinian ATI law (Article 13) only allows institutions to refuse access to information by a well-founded act, if the requested information does not exist and the entity is not legally obliged to produce it or if one of the exceptions provided for in Article 8 applies.

To ensure compliance with this provision, the law allows for the nullification of the denial act in cases where the refusal is not sufficiently substantiated by the obliged entity. Moreover, the refusal must be approved by “the highest authority of the requested body or entity”. In accordance with Article 13, any failure to observe the time limit, as well as ambiguity, inaccuracy or incomplete delivery of information, shall be considered as unjustified denial of the access to information.

Argentina’s ATI law provides a list of exceptions in which public entities are exempted from the obligation to disclose information (Article 8):

  • information expressly classified as reserved or confidential or secret, for reasons of defence or foreign policy

  • information that could jeopardise the proper functioning of the financial or banking system

  • industrial, commercial, financial, scientific, technical or technological secrets whose disclosure could harm the level of competitiveness or interests

  • information that compromises the rights or legitimate interests of a third party obtained in confidence

  • information in the possession of the Financial Information Unit in charge of the analysis, treatment and transmission of information aimed at the prevention and investigation of the legitimacy of assets derived from illicit activities

  • information prepared by regulated entities dedicated to regulate or supervise financial institutions

  • information elaborated by legal advisors or lawyers of the national public administration

  • information protected by professional secrecy

  • information that contains personal data and cannot be provided using dissociation procedures

  • information that could cause a danger to the life or safety of a person

  • information of a judicial nature the disclosure of which is prohibited by other laws or by international commitments

  • information obtained in investigations carried out by the public entities whose disclosure could endanger the success of an investigation

  • information corresponding to a corporation subject to the public offering regime.

While the use of such exemptions is common practice across OECD countries, they need to be limited, used restrictively and properly justified to ensure that public officials’ level of discretion remains relatively low. To facilitate the interpretation of the ATI law, the AAPI further enacted Resolutions 4 and 48/2018, which contain interpretation criteria. In particular, Resolution 48/2018 provides for a public interest test in the event of a normative conflict. For cases of doubt, the law enshrines the guiding principle of “in dubio pro petitor”, which establishes that officials must act in the manner most beneficial to the applicant. It is also important that proper guidelines are developed and trainings are conducted regarding the classification and declassification of information and to guide public servants in interpreting and deciding what type of information can or cannot be provided. In that regard, Article 24 of the ATI law provides a legal basis for training officials about the scope of the law. Public officers dealing with information requests should be continuously trained and their capacities strengthened to reflect the challenges of dealing with requests. Moreover, it is crucial that decisions and justification for rejecting requests for information are sufficiently monitored and tracked.

Weak appeals procedures can undermine effective application of the right to access information.

In the event that an information request is refused, in most countries with access to information laws the possibility exists to appeal the decision through different channels. There are three common approaches (World Bank, 2009):

  • Individuals are given the right to make an “administrative appeal” to another official within the institution to which the request was made. If the administrative appeal fails, individuals may appeal to a court or tribunal, which may order disclosure of the information.

  • Individuals are given a right of appeal to an independent ombudsman or information commissioner, who makes a recommendation about disclosure. If the institution ignores the recommendation, an appeal to a court is permitted.

  • Individuals are given a right of appeal to an information commissioner who has the power to order the disclosure of information. No further appeal is provided for in the access law, although the commissioner’s actions remain subject to judicial review for reasonableness.

Box ‎3.5. Decisions of information oversight institutions

When called to rule on a request concerning access to information, institutions guaranteeing access to information (IGAIs) issue administrative (or public) decisions based on the communicability of information.

In most cases, the IGAI formulates a recommendation or an opinion, which is not binding, on the persons subject to the obligation of communication. For example, decisions by the Japanese Commission for the Oversight of Communication and the Protection of Personal Information are not binding. Similarly, in Denmark and Norway, reports by the Ombudsman are not obligatory. In France, the Commission for Access to Government Documents issues a favourable or unfavourable opinion on communication of the document in question. Even in the event of a favourable opinion, the government administration may uphold its initial refusal. It should nevertheless be noted that, even though IGAI opinions are not obligatory, they are generally respected by the government, given the moral authority of these institutions and the publicity they can lend to their opinions.

IGAIs sometimes have the power to issue instructions to the government. Thus, the Italian Commission on Access to Government Documents holds true decision-making power and is authorised to order a government administration to communicate a document, albeit without any power of sanction or binding force. The Commission on Access to Government Documents for the Brussels-Capital Region issues an opinion when a person wishes to obtain access to a document held by an authority, and this authority refuses access to this information to this person. It also holds decision-making powers on environmental matters. Since 2005, France’s Commission for Access to Government Documents has held a power of sanction that allows it to inflict fines in cases of fraudulent reuse of public information. These fines can be as high as EUR 300 000.

As an administrative court, the Commission on Access to Information in Quebec (Canada) reviews decisions by public bodies following requests made by persons who were refused access to a government document or access or rectification of their personal dossier. Decisions are handed down after a hearing, and are mostly public. In Sweden, refusal by a government administration or a citizen to collaborate with the Ombudsman can constitute a crime prosecutable by a criminal court in some instances.

In many OECD member countries, recourse to an IGAI generally proves effective and avoids clogging courts with requests involving the right to access information. For that matter, decisions in case law serve as a reference for persons subject to the obligation of communication and help avoid a certain amount of litigation.

Source: OECD (2019c), Institutions Guaranteeing Access to Information in OECD Member Countries and the Four MENA Region Countries, forthcoming.

Pursuant to the OAS Model Law on Access to Public Information, a requester should be able to appeal a refusal of access to information within 60 working days. The requester should make an internal appeal to the head of the public authority or an external appeal to the Information Commission. Finally, the person seeking information should be able to challenge the decision of the Information Commission in court. In Europe, two common basic models for reviewing administrative decisions on ATI requests exist. In some countries, the pivotal role of reviewing the legality of refusals is exercised by the courts, while in others this oversight role is given to specialised independent administrative institutions.

Argentina’s ATI law (Article 14) allows for the possibility to appeal decisions regarding the access to public information directly to the courts of first instance in federal administrative litigation. Moreover, administrative complaint procedures can also be initiated with the Agency for Access to Public Information or the corresponding respective entity where the information was originally requested. The latter has to immediately and without delay submit all appeals to the Agency for Access to Public Information for resolution. Such claims for non-compliance with the ATI law have to be filed within a period of 40 working days counting from the expiration of the information provision period established in Article 11. As for the formal requirements, Article 16 stipulated that all claims for non-compliance shall be submitted in writing, including the full name and address of the applicant as well as the name of the person the request for information was directed at and the date of submission. In addition, a copy of the request and any response from the entity in question must be provided.

The Public Information Access Agency then decides on the legitimacy of the claim for non-compliance within a period of 30 working days. Should the Agency find that an entity failed to comply with its obligations under the ATI law, it requests the institution to deliver the information within ten working days (Article 17). Any non-compliance on the part of an institution is subject to legal and administrative proceedings as foreseen in Article 24(p) and (q). The formal aspects and requirements of Argentina’s appeals procedure to contest a decision of an institution in the case of refusals of information requests reflect common practice of OECD countries. However, while Article 24(p) and (q) state that the director of the Agency can initiate legal actions and request administrative investigations and sanctions from the respective institution in the case of non-compliance, the ATI law does not provide the Agency of Access to Public Information (AAIP) with the possibility to directly sanction officials or institutions that do not comply with its decisions or infringe on the law. Consequently, the legal effect and the possibility of follow-up procedures to address incompliance remain unclear.

In the event that a claim is to be found unjustified, the law establishes that applicants will be provided with information regarding further judicial remedies. Article 17 stipulates that the agency shall inform the applicants about the right to resort to justice and the deadlines for filing such action. For the greater protection of the applicant, Article 14 establishes that decisions regarding the denial or dissatisfactory access of public information can be appealed directly before the courts of first instance, even without exhausting administrative appeal measures. To improve the effectiveness of Argentina’s ATI appeal mechanisms, the law could be amended by establishing and defining the consequences of applications to appeal decisions of the agency.

Strong and clear legal enforcement serves as a guarantor for the effectiveness of the ATI law.

Legal enforcement is of critical importance for the rule of law. If there is widespread belief that the legislation will not be enforced, the right to information becomes meaningless (World Bank, 2009). Lack of proper enforcement mechanisms can lead to arbitrary denials, encourage a culture of silence and cause people to behave as if the law did not exist. Enforcement of the law includes among other things the possibility to receive appeals in the event that the information requested is not provided. It also includes a review process on the proper implementation of the law, as part of which officials revise and follow up on annual reports or provide guidelines and training to public officials. The context in which the access to information law operates will help to determine the best way of enforcing the law. However, in all cases it should be:

  • independent from political influence

  • accessible to everyone without legal representation

  • timely

  • affordable.

In terms of sanctions, the ATI law is unclear regarding the extent to which the six separate access to information agencies that were established for each branch of the state, as well as for the Attorney General’s office (Ministerio Público Fiscal de la Nación), the Defender General’s Office (Ministerio Público de la Defensa) and the Council of Magistrates (Consejo de la Magistratura), can enforce access to information and sanction non-compliance by public entities with the law. The law, for instance, does not confer the right to request remedial actions from entities who systematically fail to comply with their access to information obligations. Should the AAPI find such a failure to comply with the law, its only recourse is to call upon the entity that has refused the information required to comply with its obligations and is allowed to publish its decision as well as the name and the entity’s highest civil servant on the Agency’s official website (Government of Argentina, 1994). In accordance with Article 18, public officials are held administratively, patrimonial and criminally responsible, only if they are found to have wilfully undermined the right to information, by providing incomplete information or obstructing compliance in any other way. Furthermore, the law does not make any reference to the unauthorised destruction of information and documents.

Argentina’s ATI law also does not provide legal immunity for AAPI personnel for any acts related to the exercise of their duties. Likewise, immunity is not granted to other civil servants who publish public information in good faith and in correspondence with the ATI law.

Civil servants also receive no protection under the law with regard to the publication of information concerning fraud, corruption and other wrongdoing. In the absence of specific legislation to shield those who release such information in good faith from sanctions, there is only limited whistleblower protection. Since 2003, Law 25.764 (Programa Nacional de Protección a Testigos e Imputados) has protected the disclosure of information regarding criminal acts linked to terrorism, organised crime, kidnapping, human trafficking or crimes against humanity (for the period 1976-1983); however, Argentina has no dedicated law offering protection to whistleblowers. Unprotected anonymous disclosure of information is, however, possible through the following entities (Transparency International Australia, 2014):

  • The Anti-Corruption Office (Oficina Anticorrupción), which offers the option to disclose information via an unsecured online portal

  • The Office of Administrative Investigations (Fiscalía de Investigaciones Administrativas Auditoría)

  • The Public Prosecutor (Ministerio Público).

Independent and fully functional access to information agencies are essential.

It is critical for the proper implementation of the ATI law that oversight institutions exist and enjoy full independence. They also need to be provided with sufficient financial resources as well as human capacities to guarantee full implementation of the law. The OAS Model Law on Access to Public Information, for instance, stresses the importance of independence and operative, budgetary and decision-making authority for any oversight institution. To ensure institutional autonomy, many countries grant legal personality and budgetary independence to the oversight body. Access to information institutions often report only to parliament, which in most cases also approves the budget, so as to ensure financial independence. Specific duties and powers for the oversight institution, once set, may include:

  • reviewing any information held by a public authority, including on site

  • sua sponte authorisation to monitor, investigate and enforce compliance with the law

  • issuing recommendations to public authorities.

Pursuant to Article 19 of the ATI law, Argentina created the Agency for Access to Public Information (Agencia de Acceso a la Información Pública) as a functionally and administratively autonomous controlling entity in the executive branch within the institutional entity of the Office of the Chief of Cabinet (Jefatura de Gabinete de Ministros). The agency’s responsibility is to ensure compliance with the principles and procedures established in the law, guaranteeing the effective exercise of the right of access to public information and promoting the proactive disclosure of information. In 2017, Emergency Decree 746 moreover amended Article 19 of the ATI law and expanded the Agency’s responsibilities by mandating it to ensure and supervise the application of the Data Protection Law. In addition, the Agency was put in charge of overseeing the protection of personal data as well as ensuring citizens’ right to access personal data.

The process for appointing the director of the agency has also been established by the ATI law. While the director of the Agency for Access to Public Information is both nominated and confirmed by the executive branch, Article 21 stipulates public consultations and vetting as part of a “public, open, and transparent nomination procedure” – including the possibility for citizens, non-governmental organisations, professional associations and academic entities to voice their opinion. To shield the director from political interference and arbitrary dismissal, his or her removal from office (Article 27) requires parliamentary approval from a bicameral commission.

There is a need for horizontal co-ordination between the six access to information agencies to ensure successful implementation of the ATI law.

Taking into account the experience gathered from the application of the Public Ethics Law, which led to a Supreme Court declaration that rendered certain articles of the law inapplicable on grounds of a violation of the division of powers, the Access to Information Agency’s authority of application is limited solely and exclusively to the executive branch. Replicating the executive’s agency with identical powers and functions, Article 28 of the ATI law requires the establishment of separate organs for each independent institution and branch of the state (see above). Acting in the area of the respective organisations that created them, all six access to information agencies are mandated to ensure compliance with the legal framework and the effective exercise of the right of access to public information, and promote active transparency measures. Pursuant to Article 28, the appointment of each agency’s director must be made by means of an open, public and transparent selection procedure, which guarantees the suitability of the candidate.

To ensure a co-ordinated approach to the interpretation and application of Argentina’s ATI law and the implementation of Article 8 of Decree 899/2017, the six autonomous agencies established a Co-ordinating Roundtable for Access to Public Information (Mesa de Coordinación de Acceso a la Información Pública) in November 2017. This body promotes a joint approach to implementing the work of access to information agencies in the different branches and institutions of the state. In particular, it focuses on the following areas:

  • collaboration on strategic planning design

  • co-operation for the dissemination of policies for transparency and access to information

  • creation of tools to enable mutual technical assistance between offices and/or agencies for access to information, especially in the areas of training and development of policies for access to information and proactive information disclosure

  • participation in joint international co-operation projects with criteria of transversality, in the areas of transparency and access to information.

Few insights can be drawn from comparative international experience regarding the establishment of such a large number of access to information agencies. To date, most countries have established only one access to information institution. In order to guarantee a common approach for implementation of the national ATI law, it is important that the Roundtable’s existing mechanisms and other informal co-ordination practices between the various agencies are further formalised. To this end, the agencies’ directors could meet on a regular basis to ensure the full implementation of the transparency and access to information framework. Additionally, the establishment of periodic meetings or working groups of the agencies’ technical staff would contribute positively to information exchange and collaboration between the autonomous institutions. Current work being undertaken by agencies on the establishment of indicators to measure the implementation of the national ATI law, could lead them to identify challenges and common shortcomings, and to promote good practices for a successful and uniform approach to access to information for citizens.

Vertical co-ordination between all levels of government is essential to ensure the successful implementation of the ATI law.

Most provinces within Argentina’s federal structure have adopted their own ATI laws or incorporated access to information provisions into their constitutions. Accordingly, Article 29 of the national ATI law created a Federal Council for Transparency (Consejo Federal para la Transparencia). The Federal Council is composed of high-level representatives of all provinces and the City of Buenos Aires. Established as a permanent interjurisdictional body, the Council aims to promote technical co-operation and consultation on transparency and access to information policies across all levels of government, in order to promote agreement on policies and criteria for access to public information. The Council is supported administratively and technically by the Agency for Access to Public Information of the executive branch, whose director also presides over biannual meetings, which also aim to assess the degree of progress in terms of active transparency and access to information in each of the jurisdictions.

In order to ensure effective implementation of the ATI law and to guarantee a fully functional Federal Council for Transparency that adequately fulfils its co-ordination role and assigned mandate, it is crucial to ensure that the Council is provided with a statute, and the necessary human and financial resources. The national government could also actively engage in promoting the adoption of ATI legislation in all 23 Argentinian provinces and the Autonomous City of Buenos Aires, including through the National Open Government Steering Committee, as suggested in Chapter 4.

Since 2014, the Federal Network for Access to Public Information (Red Federal de Acceso a la Información Pública), a voluntary national association composed of public institutions at the national, provincial and municipal levels, exchanges experiences and promotes good practices related to transparency and the right of access to information. As a collaborative space, the Network has the potential to positively impact the promotion and implementation of the right of access to public information across the different levels of the state. In particular, the participation of a great number of provincial and local authorities could facilitate access to information at the subnational level. The extent to which the Network is able to contribute to improved vertical co-ordination in terms of access to information will depend on the participation of a greater number of entities at the national level.

Elaborating a legal framework for state modernisation

A draft law on state modernisation is currently being discussed in COFEMOD.

In order to modernise the public administration, the Government of Argentina created the then Ministry of Modernisation in 2015 (see Chapter 4 on Implementation) and adopted a State Modernisation Plan in 2016 (see Chapter 2 on the Policy Framework). The government then instructed the Federal Council for Modernisation and Innovation in Public Management (COFEMOD) – the representative federal organ for matters of state modernisation (see Chapter 7 on the Open State) – to elaborate a preliminary draft of a state modernisation law. Once the draft law is adopted by provincial representatives in COFEMOD, the Government Secretary of Modernisation and the National Deputy Chief of Cabinet is supposed to initiate the official legislative process for the adoption of the law.

The law aims to establish guiding principles and common rules for the modernisation of public management at federal, provincial and local level.

The purpose of the law which is currently under development is the establishment of guiding principles and common rules for the modernisation of public management at federal, provincial and local level. This will be achieved through “the implementation of policies, technological and management tools that provide an efficient and effective response to people’s needs, rights and obligations”. The draft law defines a number of general modernisation criteria and guiding principles for the modernisation of the state, several of which relate to open government principles:

  • Ensure all services and procedures provided by the state are citizen oriented.

  • Promote the transparent and open management of information and data through the use of electronic means and systems.

  • Promote digital inclusion with the aim of stimulating the use of digital channels for interaction with the state.

  • Use objective criteria to evaluate merit, performance, responsibility and ethical values, as fundamental attributes of public employees.

  • Adopt result-oriented management policies that guarantee the least possible expenditure of public resources for implementation and management, as well as accountability.

A draft chapter of the law dedicated to open government asks public institutions to implement open government initiatives promoting “the principles of transparency, integrity, accountability, and participation of stakeholders in the design and delivery of public policies and services, in an open, inclusive and citizen-centered manner” (Article 11). In this context and pursuant to Article 12, institutions shall implement the following strategic guidelines:

  • Implement mechanisms that broaden citizen participation in the formulation and evaluation of public policies that foster the joint resolution of public problems, that promote the opening and reuse of data and public information, and that foster the exchange of strategies and methodologies to optimise management.

  • Develop capacities for innovation, promoting open government literacy and the use of agile methodologies in administration, at all levels of government and among civil society.

  • Proactively provide clear, complete, timely, reliable and relevant public sector data and information that are free, available in a legible and non-proprietary format, easy to find, understand, use and reuse.

  • Actively communicate open government strategies and initiatives, as well as their products, outcomes and impacts, to ensure that they are well known within and outside of government and stimulate citizen participation.

  • Generate mechanisms for debate with citizens by holding public consultations on different public administration policies.

Efforts from all levels of government will be needed to guarantee successful implementation of the law, once adopted.

In order to ensure the full implementation of the modernisation law and guarantee its effects for all citizens, the general management and modernisation criteria, as well as the strategic guidelines on open government proposed by the draft law, must transcend the management of government institutions and be sufficiently mainstreamed into all future policies. To this end, aspects of the law relating to open government principles should be reflected in all new legislation.

To ensure the effective implementation of the modernisation law and the dissemination of its guiding principles across all branches and levels of the state, it is crucial that the national government encourage adherence to the law by the 23 constitutionally independent provinces and the Autonomous City of Buenos Aires. The government could also invite municipalities to adopt the law. The full effect of this legislation will only be achieved if all levels of government co-ordinate and agree on the necessary measures, guidelines and policies stipulated under the modernisation law.

Recommendations

Fostering the effective implementation of the Law on Access to Information

  • Ensure the effective horizontal application of the national Access to Information Law across all branches of the state.

  • Continue formalising co-ordination mechanisms for the various agencies responsible for access to information, as part of the Co-ordinating Roundtable for Access to Public Information and beyond, in order to guarantee a common approach for the full implementation of the national ATI law.

  • Ensure regular meetings of the agencies’ directors and consider creating working groups of the agencies’ technical staff, in order to positively contribute to information exchange at all levels and full collaboration between the autonomous institutions.

  • Promote the adoption and implementation of ATI legislation at the provincial level to guarantee access to information at all levels of the state.

  • Ensure that the Federal Council for Transparency is able to adequately fulfil its co-ordination role and mandate to promote technical co-operation and consultation regarding transparency and access to information policies across all levels of government.

  • Standardise and simplify the process to request information for all public institutions, in order to make access to information more citizen-friendly.

  • Develop a single online request form and publish supporting uniform guidelines on how to request information. To ensure consistency between institutions, make sure that fees for reproduction and potential delivery of information are set centrally and remain the same for each entity providing information.

  • Ensure that a robust and efficient institutional framework for access to information is in place.

  • Ensure that the six agencies has a legal basis to enforce the ATI law and can effectively sanction non-compliance by public entities and officials.

  • Ensure that the access to information agencies enjoy full independence and are provided with sufficient financial resources as well as human capacities to guarantee full implementation of the law.

Elaborating a legal framework for state modernisation

  • Pursue efforts to elaborate and adopt a state modernisation law that includes open government principles as a core building block and strategic enabler of public governance reform.

  • Promote adherence to the state modernisation law by the 23 provinces, the Autonomous City of Buenos Aires and municipalities, once adopted.

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