Legal analysis

Bolivia: access to information draft law

• All references to the “right to access public information” should be replaced by the “right to information” in the draft law.
• The preamble should indicate that the draft law shall be interpreted in accordance with Bolivia’s Constitution and its international legal obligations.
• The general provisions should indicate a presumption that all information held by public bodies is subject to disclosure and that this presumption may be overcome only in very limited circumstances. 
• Article 3(IV) ought to be clarified to define the organisations covered by this provision.
• Article 25(I) paragraph I should assert that “everyone shall have the right to information without distinction on such grounds as gender, race, ethnic origin, age, sexual orientation, nationality ...”
• The definition of information in Article 26(II) should be amended to apply to any recorded information, regardless of its form, source, date of creation, or official status, whether or not it was created by the body that holds it and whether it not it is classified.
• The draft law should state that a body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.
• The draft law should provide that it is possible to submit a request for information in person, by post (or mail) or through a lay or legal representative.
• Article 30 should be amended to state that bodies should have a duty to provide and assistance if a request is unclear or overly broad.
• Article 31(II) should be amended to provide that the period of delivery of a response may be extended by twenty days.
• Article 31(I) should be amended to state that if the requested information is not held by the entity, that body shall transfer the request to the appropriate body within no more than two days and inform the requester of information of that transfer.
• Article 31(IV) should be amended to state that a body should communicate the refusal or rejection of a request for information to the requester and give reasons for its decision.
• Article 31 (VII) should be amended to state that bodies should provide information in the form requested by the requester.
• Article 32 should provide that no reproduction fees should be charged for persons with low income.  In addition, that provision should state that fees should be set by law by a central body established to determine the level of fees.
• The provisions on the Ministry of Institutional Transparency and Combating Corruption should be omitted. 
• The draft law should provide for an independent body, called the Information Commissioner or Ombudsman, specialized in transparency and access to information to resolve disputes concerning the right to information. 
• In terms of appointment, the draft law should set out that the process of nomination for appointment must be open and transparent, the minimum qualifications for appointment; that the appointment must be approved by the legislature and that the appointment is for a fixed term of five years with the possibility of renewal. 
• The draft law should state that the Information Commissioner or Ombudsman should report and be accountable to the legislature, who can remove the post-holder (for criminal violation, serious dereliction of duties, or a clear inability to conduct the job).
• The draft law should state that bodies are required to use language which is clear, accessible and comprehensible for users.
• The draft law should also provide a complaints procedure for failure to comply with the principle of transparency and also provide for a system for increasing the requirements for proactive dissemination of information.  
• The draft law should state that adequate resources should be set aside for the promotion of transparency and implementing the provisions of the legislation. 
• The draft law should provide for administrative and civil sanctions, including fines, for deliberate violations of the law. 
• The draft law should provide for sanctions against bodies for failure to proactively disseminate public information.
• Legal fees and damages should be available to requestors when the oversight body finds that information is being unlawfully withheld. 
• The draft law should provide that sanctions may be directly issued by the oversight body for the law.

• Provisions on “secret, reserved and confidential” information should be replaced to include a narrowly-defined list of types of information which may justify non-disclosure if they pass the harm and public interest tests. 
• The draft law should set the maximum duration of classified information to ten years. 
• The draft should provide protection for whistle-blowers.

 

Downloads

• 11-03-09-MEMO-bolivia.pdf

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• Freedom of information
• Bolivia