Access to Information Act in Colombia, A Citizen Achievement

by Digital Rights LAC on May 5, 2023

On March 6, 2023 the President of Colombia approved the Access to Public Information Act. This norm contains a number of international standards on this fundamental right and stems from an initiative of the civil society alliance, More Information More Rights.

By Emmanuel Vargas*

Access to information in Colombia has been characterized as difficult. It is not for nothing that the latest Antonio Nariño Project’s survey to more than 700 journalists shows that 57% of respondents found administrative barriers to access public information. This adds to a constant culture of secrecy, in which keeping things in the dark is more convenient.

Furthermore, the existence of a large number of rules, in some cases contradictory, has made impractical the exercise of this right for any citizen. Fortunately, the Constitutional Court issued several judgments in which the right was guaranteed and its parameters were clarified.

Given this situation, in April 2009, several civil society organizations working on advocating, promoting or using the right of access to information decided to join forces around the “More Information More Rights” campaign, aimed at making visible the importance of this right and the difficulties for its exercise in Colombia.
The campaign evolved into an alliance after a year of learning. The idea was to keep working together to promote and advocate for the right of access to public information. About the same time, “Transparencia por Colombia” and “Dejusticia,” alliance members, initiated the formulation of a statutory draft law, which would be taken as a priority action for More Information More Rights.

The bill went through different stages and today is the Law No. 1712 of 2014. As a starting point, international standards, criteria and model countries were analyzed, and characteristics and specificities for Colombia were identified. From this, the resulting text was socialized in different forums and working tables with those stakeholders that could have impact and could be interested in participating.

Parallel to this process, the conservative senator, Carlos Barriga Emir, filed his own bill in December 2010. After some dialogues between the Congressman’s team and the alliance members, it was decided that both initiatives could complement each other. A new proposal was submitted before Congress with the support of members of other parties in November 2011. Later, this initiative was accumulated with another bill filed by Senator Juan Manuel Corzo, who, at the time, was president of the Congress and took over as one of the speakers before the Senate.

In the first half of 2012, President Juan Manuel Santos supported the initiative and appointed the Transparency Secretariat of the Presidency of the Republic as the government liaison office. From that moment it began a race against the clock in which four parliamentary debates were carried out between March 21st and June 20th, virtually one per month. In this process, it arose criticisms and difficulties. The alliance’s work, then, was to guide the discussion according to the standards of access to public information and to fight for keeping them.

The main difficulty was deciding which entity would be responsible for ensuring the right of access to public information. The proposal that was initially submitted to Congress established the formation of an independent body, similar to the one existing in Chile and Mexico, which would count with required scope and budget to guarantee access to public information throughout the country.

However, the idea did not prosper because of the costs involved. It was then proposed to set out an office at the Procurator-General of the Nation, which has certain characteristics that could be used to fulfill the functions of the Federal Institute for Access to Information in Mexico or the Council for Transparency in Chile: it is an independent body, responsible for overseeing government officials’ actions and for promoting and protecting human rights, and it is entitled to punish and take preventive measures. Yet, there were political aspects that regarded that the entity would be granted too much power and this had more weight. It was finally decided that the Office of the Public Prosecutor, formed by of the Attorney General, the Municipal Attorneys and the Ombudsman, would have the powers to ensure the right of access to information.

During that same process it was evident the continuing interest of the military in keeping in secret most of its actions. From the third debate, delegates from the Ministry of Defense showed their irrevocable interest to exclude from the norm those subjects of national security and international relations, and they managed to include a paragraph that fulfilled this purpose.

Fortunately, the bill had to be reviewed by the Constitutional Court before entering into force. At that stage, the Alliance focused its efforts on giving arguments that could serve to declare unconstitutional the paragraph imposed by the Ministry of Defense, as well as some other passages added during the debate that could be restrictive later on.

The Court finally decided in May 2013. The judgment was positive in most of the worrisome aspect. Among these, it can be considered as the major victory that the paragraph included by the said Ministry was declared disproportionate and unconstitutional.
It had to pass nearly one year, until February 2014, to know the final text of the Court’s judgment endorsing the bill. After this and few additional steps, the President finally signed the bill on March 6, 2014.

From this moment begab the countdown for incorporating certain measures by the agencies obliged to supply public information (6 months nationwide and one year at regional level). Among the major developments of this standard are the following:

• Principles such as good faith, facilitation, free-of-charge, non-discrimination, speed, efficiency, quality of information, and proactive disclosure are recognized.
• It clarifies what entities are obliged to provide information. There are not just the State entities, but political parties, public service providers, government contractors, among others.
• Guarantees to ethnic and cultural groups to access information of interest are provided.
• The obligation to provide information proactively and related to different aspects of the management and execution of each entity’s resources is created.
• The entities denying public information shall indicate the law in which the exception is covered, the interest they seek to protect that must be related to a specific list, and evidence of the harm being caused by delivering the requested information.
• The possibility of using the right to petition in cases when the information is denied is expanded.
• The creation of public policy on access to information is required.

These developments can now be considered law in Colombia.

* Emmanuel Vargas. Attorney with a specialization in journalism from the University of the Andes. Legal Coordinator of the Foundation for Press Freedom. @EmmanuelVP