Asset Declarations
An ever-growing number of countries have adopted ethics and anti-corruption laws that require public officials to declare their assets and income and, increasingly, the assets and income of their spouses and dependent children. The officials who are required to declare, and the amount of detail required, vary significantly from country to country. While the requirement to declare income and assets generally is imposed by anti-corruption laws, these laws generally do not require that all of the declared information be made public and indeed some laws only require disclosure to a public agency. Interested citizens and NGOs in several countries have started to invoke their countries' ATI laws to obtain such information, but these efforts are in their early stages.
The principal goal of income and asset disclosure systems is to combat corruption. In a growing number of cases, information published in asset declarations has led to the exposure of saffubstantial unjust enrichment. Several countries with detailed disclosure requirements, such as Latvia,[1] have experienced a decline in corruption. Among other benefits, asset disclosure programs enhance the legitimacy of government in the eyes of the public and stimulate foreign direct investment. There is now a growing trend toward requiring financial disclosure by government officials, including publication of asset declarations, in order to combat corruption, foster public confidence in government, and encourage foreign investment.[2] According to a World Bank survey of some 100 countries that receive World Bank assistance, ___ require senior government officials to declare their income and/or assets, of which some __ (about __%) require that the declarations or a summary thereof be made available to the public. [3]
The countries that publicize some or all information included on income and asset disclosure forms tend to do so in one of three ways: (1) some publish the information on the internet, (2) some reproduce the completed forms in the official journal or gazette, and (3) others make the forms physically available at a designated location and allow the public to view and copy them there. This latter is the practice, for instance, of many agencies in the United States.
Latin America
A World Bank survey of 32 countries in Latin America found that full asset declarations by senior officials must be made public in 8 countries: Argentina, Belize, Bolivia, Brazil, Chile, Jamaica, Mexico, and Nicaragua, Paraguay.[4] In Mexico, over 100,000 public declarations are filed every year.[5] In one additional country, the Bahamas, summaries of financial declarations are published in the Gazette. In Ecuador, declarations must either be made public or authenticated by a notary. Financial declarations must include information for spouses, children, and other financial dependants in twelve countries: Belize, Brazil, Chile, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Trinidad and Tobago, and Venezuela. Thus, Belize, Brazil, Chile, Jamaica, and Nicaragua have granted some form of public access to financial declaration information regarding spouses, children, and financial dependants. Following is additional information about specific countries.
Argentina
The Act on Ethics in the Public Office requires every state official, including members of the judiciary, to file a declaration of assets and information, in order to control possible conflicts of interest. The act authorizes access to such information to anyone making a request in writing. The request must include the name of the person requesting the information, the reason for wanting the information, and how the information received will be used.[6] The Act also establishes sanctions if the information received is used for illegal, commercial or solicitation purposes, but those sanctions do not apply for the use of information by the media.
Peru
Article 40 of the Constitution requires periodic publication of the income earned by government officials in relation to their offices and Article 41 requires all public officials including those who administer or manage government funds or organizations to provide a sworn statement as to their income or assets acquired during their terms of service.[7] The Administration Attorney issued an opinion that the public should have access to data concerning the salaries of public officials. According to the Attorney, as the information on salaries is not included in the personal files of each public official, the restriction established on individual files does not apply to such data. The opinion established that the general institutional expenses on salaries (planillas) are public, including data on salaries for each specific position. Access to such information is considered necessary to ensure accountability and citizens' control.[8]
North America
Canada
The Canadian financial disclosure law requires that public officials, from Ministers of Parliament to officers of the Royal Canadian Mounted Police, disclose financial assets.[9] In adopting the Conflict of Interest Code, the Canadian Parliament recognized the paramount importance of transparency:[10]
United States
In response to Watergate and other public scandals and a weakening of the public's trust in government, Congress enacted the Ethics in Government Act of 1978 ("Ethics Act"), which requires detailed financial disclosure by high-level government employees in all three branches of the federal government.[11] This federal legislation is complemented by a host of financial disclosure laws at both the state and local levels. The Ethics Act requires annual disclosure of financial information by the president, vice president, members of Congress, federal judges, presidential appointees, and other officials and employees earning at or above a specified pay-scale or with policymaking responsibilities.[12] The breadth of required disclosures in the U.S. is illustrated by the appended Executive Branch Personnel Public Financial Disclosure Report of the Secretary of the U.S. Department of Transportation for the year 2006 [link to pdf document]. These required disclosures include the nature, source, and amount of income, gifts and reimbursements, assets and liabilities, and transactions in real property and securities.[13] Covered employees must make similar disclosures regarding the finances of their spouses and dependent children.[14] The Ethics Act also requires that the disclosures be publicly accessible in full for six years, with limited exceptions.[15] Today, many of these financial disclosure reports can be found on the Internet.[16]
In upholding financial disclosure laws, U.S. courts have recognized that full, comprehensive disclosure is necessary to combat corruption and foster public confidence in government. For example, in approving a state's executive order that required high level state employees to publicly disclose their financial information, one court noted the connection between "the full disclosure requirements" and the intent of the order to "not only . . . ferret out actual or apparent conflicts of interest but also to disclose to public view all financial data which may be relevant in guarding against corruption and dishonesty in government." [17] The court went on to conclude that it "cannot conceive of a means of tailoring the order which would narrow the scope of disclosure and still preserve the integrity of its purpose."[18] The court recognized that summary or partial disclosure of financial information would not allow members of the public to evaluate the financial information - and thus to determine where possible conflict exist and to become reassured in the integrity of their government - which means that the very objectives of disclosure would be defeated.
Some U.S. agencies have a procedure by which to notify filers when their forms are requested. Typically, the requestor fills out a form showing name, address, office telephone number, occupation, and the name and address of any other person/organization on whose behalf access to the material is sought. U.S. law also provides that forms may not be used for any of the following purposes:
- any commercial purpose, other than by news and communications media for dissemination to the general public;
- determining or establishing the credit rating of any individual;
- the solicitation of money for any political, charitable, or other purpose; or
- any unlawful purpose.
A number of agencies require those requesting access to one or more forms to sign a statement acknowledging these prohibitions.
Europe
Nearly every country in continental Europe has some form of financial disclosure requirement for public officials. The Group of States Against Corruption (GRECO) of the Council of Europe adopted a Model Code of Conduct for Public Officials that includes a requirement for declaration of private interests[19] and a broad definition of conflict of interest, including apparent and potential conflicts of interest.[20] The OECD also asserts that public officials' disclosures should be targeted at all apparent and potential conflicts of interest, rather than limited to direct, current conflicts.[21]
Latvia
Latvia has one of the most comprehensive financial disclosure systems in Europe, which has arguably led to the reduction of once-rampant corruption in this post-Soviet democracy.[22] The basis for Latvia's strong conflict of interest protections is its FOI Law and the Law on Prevention of Conflict of Interest in Activities of Public Officials. Public officials, ranging from the president to notaries, soldiers, and city council members, must disclose their financial and personal interests as well as those of their relatives.[23] The declarations must include information about the public officials' and their relatives' income, property, stock and other securities, savings, transactions performed, debts, and loans given.[24] The only categories of information in this comprehensive disclosure that are not publicly accessible are the official's place of residence and personal identification number.[25] All of the financial interests are disclosed, and declarations of high-ranking officials are published in the government Official Gazette.[26]
Romania
Romania has a robust system of publishing public officials' asset disclosures, grounded in a constitutional right of access to information. All "[p]ersons holding high and official positions," - which generally includes all civil servants, elected officials, and political appointees, and their spouses and dependent children - must disclose their financial and other positions.[27] The latter includes the positions they hold in associations and businesses, paid professional activities, and interests as a shareholder. In addition to personal property and income, financial positions include deposits, claims, bonds, and other income of more than EUR10,000 (about 43,300 PEN), and gifts of more than EUR300 (about 1,300 PEN) resulting from protocol activities. All such disclosures are published on the website of the relevant government agency.[28]
Other former communist countries
Besides Romania and Latvia, countries that require public access to financial interest statements of at least the top government officials include Albania, Bulgaria, Croatia, Georgia, Lithuania, Moldova, Russia, and the Ukraine.[29] The benefits reaped as a result of such democratizing efforts have included increased foreign direct investment, relative political and economic stability, and, for some, EU accession.[30]
Africa
In the Rabat Declaration, the Ministers of Civil Service of 34 African countries proclaimed their belief in "[a] well-performing and transparent public service" and recognized this principle as an "essential prerequisite for private sector growth and Africa's economic recovery."[31]
South Africa
South Africa has implemented a comprehensive conflict of interest policy, and has enacted a number of conflict of interest codes requiring disclosure of financial interests by public officials. Elected officials and senior managers in the civil service, as well as their spouses and dependent children, must publicly disclose nearly all financial interests, including shares and interests in companies, land and property owned, paid outside employment, directorships and partnerships, consultancies, and gifts received from sources other than friends and family.[32] Although limited portions of this information, such as the value of interests in companies and pensions, amounts of remuneration, and details of private residences and family financial interests, are kept confidential,[33] the presumption in South Africa favors disclosure of assets.
Other Countries
A few other countries, including Kenya and Malawi, have passed conflict of interest legislation, but such efforts have not been as comprehensive or as successfully implemented as South Africa's.
Asia and Pacific
Australia
Since 1983, Australia's conflict of interest laws and regulations have required Members of Parliament to disclose their financial interests, including those of their spouses and dependent children.[34] The Australian House of Representatives and Senate have published these disclosures in a registry since 1984 and 1994, respectively.[35]
India
All public servants employed by the central or a state government or any other public authority under their control are required under the relevant civil service rules to submit returns of movable and immovable assets owned by them and their immediate family.[36] Periodicity of submission varies from one year to three years. However, these documents are submitted in sealed cover and are not accessible under any law except by courts. Under the RTI Act, access to such records has been granted by some state information commissions, however other state commissions and the Central Information Commission have ruled against providing access.
Politicians who contest elections to Parliament or a state legislature are subject to a more rigorous regime. A 2002 Supreme Court judgment requires all electoral candidates to submit on oath, details of movable and immovable assets owned by them, their spouses and three dependents, including liabilities like loans from public sector banks and unpaid bills for public utilities such as electricity, water and telephone connections.[37] These affidavits are submitted along with the nomination papers and the Election Commission uploads them on its website in order to educate voters about the background of these candidates.[38] All candidates are required to submit in these affidavits details of any criminal cases pending against them that are at least six months old. A similar declaration of assets and liabilities has become the norm for candidates contesting elections to local self governing bodies in several states. In a 2006 order, the Election Commission made it mandatory for all candidates to submit a statement of expenses relating to their electoral campaigns at least three times during the campaign period. These figures are made public by displaying them on the noticeboards of returning officers.
Upon winning an election, every Member of Parliament and State Legislator is required to submit an annual statement of assets owned by him/her and his/her dependents to the presiding officer of the house.[39] These documents are not made public ordinarily. Access to such records has not been granted under the RTI Act either.
Several states have passed subordinate legislation granting a right of access to the records and documents of panchayat (village) and municipal bodies to (a) the elected representatives, and (b) all adults eligible to vote in the elections to these bodies. For example, Section 9 of the Punjab Panchayati Raj Act 1994 requires the officers of the panchayats at the village level to proactively disclose a statement of income and expenditure at the annual meetings of the village body (gram sabha).
Japan
Senior public officials must file reports on gifts received in excess of ¥5,000 (approx US $45), securities transactions, and income in excess of ¥1,000,000 (US $9,430),[40] parts of which are available for review by the public.[41]
New Zealand
Members of Parliament "must make returns of pecuniary interests," including those of their spouses and dependent children.[42] The interest is broadly defined as "a direct financial benefit that might accrue to a member personally, or to any trust, company or other business entity in which the member holds an appreciable interest."[43] A Standing Order of New Zealand's House of Representatives only requires disclosure of the interest and not its actual value.[44] All such returns are published in the Register of Pecuniary Interest of Members of Parliament within 90 days after a general election.[45]
Philippines
Since 1987, Filipinos have had the right to review financial disclosures of all public officials and employees, including their spouses and unmarried minor children living in their households, pursuant to Section 8 of the Code of Conduct and Ethical Standards for Public Officials and Employees.[46] These financial disclosures, which must be "made available for inspection at reasonable hours,"[47] contain information about all real property, personal property, investments, liabilities, and business interests.[48] This right of the public is reinforced by the Constitution. Article XI (Accountability of Public Officers), Sec. 17 states:
A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice President, the members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.[49]
South Korea
In 1989, the Constitutional Court of South Korea held that South Koreans have a constitutional right of free access to information.[50] South Korea began requiring public disclosure of the financial interests of public officials in 1993.[51] All high-ranking public officials, their spouses, and many of their lineal ascendants and descendants must disclose their ownership of real property, intangible property, and shares in nonpublic business entities.[52] In addition to examination by a Public Ethics Committee,[53] the property declarations of most of these public officials and their families are published in a public bulletin within one month of their submission.[54]
Thailand
All political office-holders and high-ranking public officials must make full disclosure of all assets and liabilities, including those of their spouses and minor children.[55] The National Counter Corruption Commission is responsible for publishing the financial disclosures of a number of the highest ranking public officials in the Government Gazette.[56]
[1] For instance, according to Transparency International's Corruption Perception Index, which measures perceptions of public sector corruption in 180 countries and territories, Latvia's score has increased from 3.4 out of 10 in 1999 to 4.8 out of 10 in 2007.
[2] Anti-Corruption Policies in Asia and the Pacific, Progress in Legal and Institutional Reform in 25 Countries, (2006), available at http://www.oecd.org/document/22/0,3343,en_34982156_34982460_36831894_1_1_1_1,00.html
[3] Rick Messick, Income & Asset Disclosure Requirements for Heads of State & Governments (June 15, 2006), available at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/IncomeAssetDisclosureinWBClientsasofJune62006.pdf
[4] Rick Messick, Income & Asset Disclosure Requirements for Heads of State & Governments (June 15, 2006).
[5] See individual country discussions below.
[6] Ley de Ética en la Función Pública, Ley 25.188 (1999), Art.10.
[7] Constitución Política del Perú 1993, Art. 2 §5. For text see: http://pdba.georgetown.edu/Constitutions/Peru/per93reforms05.html#titIcapI.
[8] Ministerio Público, Procuradora de la Administración, Dictámen C-128, 19 April 2002
[9] Conflict of Interest and Post-Employment Code for Public Office Holders (June 1994) § 4.
[10] The Canadian Federal Courts of Appeal have clarified that the conflict of interest provisions prohibit any apparent conflict of interest. See Threader v. Canada (Treasury Board), [1987] 1 F.C. 41, 43 (Can.).
[11] Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 5 U.S.C. app. §§ 101 et seq.).
[12] 5 U.S.C. app. 4 § 101.
[13] 5 U.S.C. app. 4 § 102.
[14] Ibid.
[15] Ibid. § 105. The limited exceptions apply to (i) members of the intelligence community (if the President finds that disclosure by such persons would compromise national security), and (ii) members of the judiciary. Id. Under the Ethics Act, a member of the judiciary's report may be redacted "only (i) to the extent necessary to protect the individual who filed the report or a family member of that individual; and (ii) for as long as the danger to such individual exists." Id. Whether a danger exists to a reporting individual such that redaction is appropriate is determined by the Judicial Conference, in consultation with the United States Marshall Service. Id. Each year the Administrative Office of the U.S. Courts must submit a report to Congress detailing the requests for redaction, what type of information has been redacted, and what procedures are in place to ensure there is sufficient public disclosure. Ibid.
[16] The full financial disclosure reports for the U.S. President, Vice President, members of Congress, and many Cabinet members are available at, for example, www.opensecrets.org
[17] Kenny v. Byrne, 365 A.2d 211, 217 (N.J. Super. Ct. App. Div. 1976) (noting that "plaintiffs have not offered any alternative means, more limited than the order's full public disclosure, to achieve the legitimate aim of restoring the public's trust in government.").
[18] Ibid.
[19] Council of Europe, Recommendation R (2000)10 of the Committee of Ministers to Member States on Codes of Conduct for Public Officials art. 14 (May 11, 2001).
[20] Ibid. at art. 13.
[21] OECD, Recommendation of the Council on Guidelines for Managing Conflict of Interest in the Public Service 4 (June 2003).
[22] According to Transparency International's Corruption Perception Index, which measures perceptions of public sector corruption in 180 countries and territories, Latvia's score has increased from 3.4 out of 10 (ranked 58th least corrupt country) in 1999 to 4.8 out of 10 (ranked 51st) in 2007.
[23] Law on Prevention of Conflict of Interest in Activities of Public Officials § 21 (May 10, 2002), available at http://www.knab.gov.lv/uploads/eng/on_prevention_of_conflict_of_interest_in_activities_of_public_officials.pdf
[24] Ibid. § 24. Disclosure of the latter four items is required only if each "exceeds twenty minimum monthly wages."
[25] Ibid. § 26.
[26] Ibid.
[27] Law on Statement and Auditing of Property of Dignitaries, Magistrates, Civil Servants and Persons with Leading Positions (1996), as amended by Law on Certain Steps for Assuring Transparency in Performing High Official Positions, Public and Business Positions, for Prevention and Sanctioning the Corruption (2002).
[28] Ibid.
[29] Rick Messick, Income & Asset Disclosure Requirements for Heads of State & Governments (June 15, 2006).
[30] See IMF Data Mapper, http://www.imf.org/external/datamapper/index.php
[31] Rabat Declaration, 3d Pan-African Conference of Ministers of Civil Service, Rabat, Morocco (Dec. 15, 1998).
[32] Code of Conduct for Assembly and Permanent Council Members § 7, available at http://www.pmg.org.za/node/17035 ; Public Service Regulations of 2001 ch. 3, available at http://www.chr.up.ac.za/undp/domestic/docs/legislation_32.pdf
[33] Ibid. § 9.
[34] Public Service Commission, Guidelines on Official Conduct of Commonwealth Public Servants 64 (Canberra 1995), citing Public Service Regulation 8B.
[35] Australian House of Representatives, Declaration and Registration of Members' Interests (Oct. 8, 1984), available at http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?id=159102&table=hansardr; and Australian Senate, Senators: Registration of Interests (Mar. 17, 1994), available at http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?id=307726&table=hansards.
[36] Rule 18, Central Civil Service Conduct Rules, 1964. This applies to officers employed by public authorities under the Central Government. Similar rules operate in all the States.
[37] Union of India (UOI) v. Respondent: Association for Democratic Reforms and Another; with People's Union for Civil Liberties (PUCL) and Another v. Union of India (UOI) and Another, AIR 2002 SC 2112, (2002) 3 MLJ 55(SC), RLW 2002 (4) SC487, (2002)5 SCC 294, [2002]3 SCR696, decided 2 May 2002.
[39] The Members of the Lok Sabha Declaration of Assets Rules, (MLSDAR) 2004 and The Members of the Rajya Sabha Declaration of Assets Rules, (MRSDAR) 2004. According to Rule 4(4) of MLSDAR and MRSDAR, the information on assets and liabilities is entered into a register and treated as confidential. Access is denied unless the presiding officer gives written permission for disclosure. Similar regulations exist in the legislatures of all of India's 28 states and two Union Territories, which are directly administered by the Central Government.
[40] National Public Service Ethics Law, Law No. 129 of 1999, arts. 6-8 (Japan).
[41] Ibid. at art. 9 ("only that part which contains the report on the receipt of gifts or compensation worth more than ¥20,000").
[42] Standing Orders of the House of Representatives, 2005, §§ 164-67.
[43] Ibid. § 165.
[44] Ibid. at app. B, § 8.
[45] Ibid. §§ 11, 15.
[46] Code of Conduct and Ethical Standards for Public Officials and Employees, Rep. Act. No. 6713, § 8 (1987) (Phil.), at www.ombudsman.gov.ph/UserFiles/File/Republic_Act_No_6713.pdf
[47] Ibid. at § 8(C)(1). The Philippine Center for Investigative Journalism has posted the asset declarations of Congress and the Cabinet in an online database at http://i-site.ph
[48] Ibid. at § 8(A).
[49] See Constitution of 1987 (still in force), http://www.gov.ph/aboutphil/constitution.asp
[50] See Section on Constitutional Protections: Korea, discussing Forests Survey Inspection Request case, 1 KCCR 176, 88Hun-ma22, Sept. 4, 1989. Excerpts from the English translation may be found in The First Ten Years of the Korean Constitutional Court [2001], pp. 132-34. A summary of the judgment is available at http://www.ccourt.go.kr/home/english/decisions/rcnt_decision_list.jsp
[51] Public Service Ethics Act, Act No. 4566, Jun 11, 1993 (S. Korea), available at http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN019099.pdf
[52] Intangible property disclosure is limited to (1) cash, deposits, securities, debts, and claims worth more than ten million won (about $10,900); (2) intangible property right that yield more than ten million won per year; (3) gold, platinum, precious stones, curios, and memberships worth more than five million won (about $5,450); and (4) transportation vehicles. Ibid. at Art. 4(2).
[53] See ibid. at Art. 9.
[54] Ibid. at Art. 10. Persons running for certain national and local elected offices must publish their property disclosures immediately upon declaring their candidacy. Ibid. at Art. 10-2.
[55] Organic Act on Counter Corruption, B.E. 2542, § 32 (1999) (Thail.), available at http://www.nacc.go.th/ewt_news.php?nid=943
[56] Ibid. at § 40.
