PROACTIVE TRANSPARENCY POLICY IN THE MERCOSUR LOCAL GOVERNMENTS: REGULATION VS. SELF-REGULATION.

• Author: Garcia-Tabuyo, Manoli

1. Introduction

   Increasing perceptions among stakeholders that public funds are being mismanaged have eroded confidence in and credibility of public institutions (Tolbert and Mossberger, 2006). To restore this confidence, numerous authors consider that public bodies should be more transparent and allow greater access to public information (Cuillier and Piotrowski, 2009; Relly, 2012), and the development of a legal framework to support such access is of fundamental importance (Spahiu, 2012).

   As regards legal requirements on access to information, two facets of transparency can be distinguished: proactive and reactive (Darbishire, 2010). The first of these is the obligation to disclose public information, without prior request, while the second means that information on government activity will only be provided when specifically requested.

   In this context, Xiao (2010) observed that legislation is placing ever-greater emphasis on the inclusion of policies promoting proactive transparency. According to Relly (2012), such policies benefit citizens and government; stakeholders can thus obtain information more conveniently and at no charge, while public bodies, by making information available at all times, are freed of the burden of responding to numerous requests.

   To implement proactive policies on transparency, new technologies such as internet websites are being used as a means of disseminating information without prior request (Cuillier and Piotrowski, 2009), and this circumstance has led to diverse legislative frameworks being established to regulate and enhance access to public information.

   In Latin America, the Organization of American States (OAS) recently called for information disclosure laws to be adopted, taking into account the benefits of proactive disclosure based on the use of information and communication technologies (ICT). Accordingly, the OAS has issued a Model Inter-American Law (LMI, Spanish initials), as a blueprint for countries wishing to draft a national law in this regard (or to amend an existing one), with the aim of fostering a more homogeneous culture of transparency in Latin America.

   Application of the LMI could make a vital contribution to political, economic and social integration in contexts such as Mercosur, whose goals include the harmonization of legislation within its member countries (Mercosur, 2010). Furthermore, globalization is spurring demands for greater transparency, because economic and financial decisions or events in one area may impact on other countries (Florini, 1999).

   Currently, some Mercosur member countries (for example, Argentina) do not have information disclosure laws, and those that do may not have followed the LMI blueprint; this is the case of Uruguay, which adopted its legislation in this field before the model was published. Therefore, the legal situation regarding proactive policies on transparency varies considerably within the region.

   Another point that should be taken into account is that the LMI, and laws based on it, merely stipulates minimum policy requirements. Information disclosure at this level might be insufficient to achieve the legitimation sought by public bodies, which therefore may decide, voluntarily, to publish complementary information (Neuman, 2006). Thus, public authorities in the Mercosur region may be complying with LMI recommendations on proactive transparency (or exceeding them) even if this is not called for under their national legislation.

   The factors and motivations that could influence self-regulation policies on information disclosure by public bodies vary widely, and have been addressed in many studies, especially in developed countries. However, little is known about the factors that may influence an organization's voluntary decision to apply the proactive transparency policies recommended by supranational bodies, especially when national laws in this respect must also be complied with.

   In view of these considerations, the present study has a threefold objective: first, with regard to facilitating citizen participation in government affairs, to analyze the degree of compliance by local governments in Mercosur countries with national laws on proactive information disclosure. Second, to consider whether these local authorities are voluntarily and homogeneously implementing the proactive information disclosure policies recommended by the OAS, and to identify the measures still to be applied, in order to comply with the LMI guidelines on proactive transparency. Finally, as some of these recommendations may be followed voluntarily, we also examine whether local authorities in countries where the LMI is incorporated into national legislation are more likely to follow it, and whether they are also affected by other factors.

   The fundamental aim of this study, thus, is to contribute to our understanding of mandatory policies on proactive transparency in contrast to self-regulation. In doing so, we present new evidence on the factors that influence a local government's decision to voluntarily apply the proactive transparency policies recommended by supranational bodies.

2. Regulating access to public information: case study of the Mercosur countries

   The national constitutions of many countries include the right of access to public information. However, experience has shown that this right is merely hypothetical in the absence of appropriate legislation, ifstakeholders cannot readily access their constitutional courts (Neuman, 2006).

   The existence of a law on access to public information induces public servants to act in accordance with applicable laws in their area of responsibility (Coglianese, 2009). Therefore, the existence of a law guaranteeing this access can make a major contribution to the democratic development of a country (Piotrowski and Van Ryzin, 2007) .

   Additionally, these laws benefit the economy, as public-sector transparency and information contribute to achieving a climate of trust, because the positive evolution of the market largely depends on the reliable provision of information (Mendel, 2003; Islam, 2006; Spahiu, 2012). Moreover, regulation of this area is a means of combating corruption, since the very act of requiring information alerts public servants that they must act in the public interest and not seek private gain (Bertot, Jaeger and Grimes, 2010).

   However, as each country is sovereign in regulating this right, large asymmetries can arise in terms of legislative content, and various international agencies and NGOs are seeking to overcome this imbalance. In order to support the development of national laws, papers have been presented, focusing on general principles and requirements in this area. Such documents include the Open Society Justice Initiative (2005), Article 19 (2007) and the Council of Europe (2009), together with model laws (OAS, 2010). In many cases, these publications seek to contribute to standardizing the concept of transparency within a specific region (Commonwealth; African Commission on Human and Peoples' Rights).

   In 2009, aware of an absence of harmonization in the content of their laws in this field, the OAS member states approved Resolution AG/RES. 2514, which called for the preparation of a Model Inter-American Law (LMI) on access to information, to provide member states with the legal framework to support this right, together with an implementation guide to ensure its proper functioning. The LMI was also intended to assist countries that had already adopted legislation in this area to harmonize their transparency policy with that of the other countries. After a year of preparation, the LMI was adopted by the OAS (as Resolution AG/RES. 2607 (XL-O/10).

   Among the Mercosur countries--Argentina, Brazil, Uruguay, Venezuela, Paraguay and Bolivia (the latter two, currently in a transitional stage of membership)--not all national constitutions incorporate the right of access to public information (Figure 1). Moreover, despite the important benefits believed to be obtained from information disclosure legislation, not all Mercosur countries have enacted such laws. Thus, only Uruguay (2008), Brazil (2011) and most recently Paraguay (2014), have adopted laws on public access to information. Bolivia regulates access to public information through Supreme Decree 27329/2004, as amended by Supreme Decree 28168/2005.

   Nevertheless, for decades all the Mercosur countries have given international undertakings to guarantee access to public information, by ratifying international agreements in this respect, such as Article 13 of the American Convention on Human Rights (1969), Article 3 of the Inter-American Convention against Corruption (1996) and the UN Convention against Corruption (2003), Article 10 of which obliges each State Party to 'take such measures as may be necessary to enhance transparency in its public administration, including (...) procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration (...)'.

   During the early years of the century, attempts by Mercosur countries to comply with these international commitments led to the parliamentary discussion of access to public information, but little was achieved until late 2006, when the pace quickened. Two events were probably responsible for this acceleration: first, in 2006 the Inter-American Court of Human Rights handed down its first judgment on the subject, ruling against the State (in Claude Reyes vs. Chile); second, the Special Rapporteur for Freedom of Expression, of the Inter-American Commission on Human Rights, required the 32 member countries of the OAS to implement legal mechanisms to guarantee access to public information.

   Paraguay pioneered action in this field, with its Administrative Transparency Act (1728/01). However, this law actually limited freedom of access to information...