Administrative Information and Proactive Publication

Overview

In most countries,  public institutions are required proactively to publish information about their administrative functions, including structure and organization (organizational chart, functions, powers); decrees, policies and regulations of general application; budget, procurement and financial information; some information about salary scales; and contact information, at least for the person responsible for providing information to the public.

Recommendation: We (the website’s editors) recommend that laws should expressly require each agency to make information available proactively by maintaining the information in a public office in or near the agency and by posting the information on its website.

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Europe

A Survey of ATI Laws in 26 European Countries found that the following categories of information must be made proactively available in at least the given number of countries:

• Information relating to the organizational structure of a public body, including information on personnel, names and contact information of public officials - at least 17 countries;
• Budget information (projected budget, budget expenditures) - at least 11 countries (others note that publication of budget and other financial information is often available from a centralized source);
• Information on functions, activities, decisions taken and formal acts issued - at least 17 countries;
• Information on decision-making procedures and mechanisms for public participation in decision-making –  at least 17 countries;
• Contact information for the information officer and/or information on the mechanisms for accessing information - at least 18 countries.
• An index or register of information held, or of the classes of information held, by each public body - at least 14 countries.
• Information on public procurement procedures both before and after the issuing of a contract - at least 11 countries under the access to information and/or public procurement laws, with additional countries having requirements of transparency in their public procurement legislation.

Only five of the countries surveyed require no or little proactive publication: the UK (which does not require, but does recommend, proactive disclosure), Sweden (whose law, last updated in 1976, simply does not address proactive disclosure), and Georgia, Germany and Montenegro.

A number of countries have more detailed provisions in their access laws in addition to the broad categories of information mentioned above. These provisions are often complemented by additional requirements of publicity to be found in other legislation, such as e-FOIA laws. The publicity requirements for public procurement are just one example of a growing trend of regulations that require specific aspects of a government’s activities to be made public.

A number of countries in both western and eastern Europe are in the process of reforming the current rules to include greater transparency of information by electronic means with requirements that information be posted on the websites of bodies obliged under the ATI law. An example of this trend is Hungary, which in 2005 adopted an extensive e-FOIA regime. Other countries with longer standing access to information provisions do not have specific requirements for electronic publication, but in practice make large amounts of information public.

State bodies increasingly post the above listed information on their websites. Others publish the information in the official gazette or other media, or make the information available on their premises.

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Latin America

While most countries require publication of procurement procedures and contracts awarded, Ecuador goes considerably further: it requires each institution to publish a list of companies and individuals which have breached contracts with that institution, as well as accountability mechanisms, details of any foreign and national loans, and the source of the resources to repay these loans.

Most countries require publication of salary scales. In addition, Argentina, the DR and Peru require publication of asset declarations; and in Argentina, Colombia and Peru, high level officials are required to publish any economic activities that might present conflicts of interest, although it seems that this information is not actually published in Peru, and not much is published in Argentia. Ecuador has particularly stringent requirements for monitoring travel expenditures, including the publication of per-diems for, reports on, and reasons for approval of, trips of public officials. The DR, Mexico, Peru and Uruguay all require publication of beneficiaries of social programs, subsidies, scholarships and retirement funds.

The ATI laws of the DR and Panama specify that the name and contact information of the person responsible for ensuring access to information must be published, and Mexico also requires publication of the location of the unit responsible for providing information to the public, as well as of citizen participation mechanisms and any other relevant information to answer the public’s most frequently asked questions.

Most countries require their institutions, including the judiciary and legislature, to publish their decrees, policies and regulations of general application.

Laws on Public Contracts require agencies to comply with general obligations of transparency concerning procurements.

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Argentina

Information on acquisitions of goods and services is regulated by the general norms of administrative contracts, of which publicity is one of the main principles to ensure efficacy and efficiency of contracts, and the Law on State contracts. This law includes provisions to ensure transparent procedures, such as the publicity of the inclusion and changes to the providers’ registry[1], and the possibility for anyone to assist to the act of opening of offers[2] and the announcement of decisions of purchase.[3] Procurement law requires public announcement of the procedure, and the opening of offers in a public meeting.[4]

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Dominican Republic

The ATI Law and its implementing regulations require all state institutions (including the judicial branch) to ensure that official websites include information on structure, staff, norms, projects, management and databases.[5] The Law also requires state institutions to appoint a responsible person to ensure access to information (known as RAI) and to organize an Office for Access to Public Information (OAIP),[6] as well as to make the individual’s contact information available on the website and through other media.[7] The ATI Law’s implementing regulations make more specific the obligation to post information on the institution’s website concerning budgets and expenditures, procurement, contracts, and information about all personnel, including their salaries and assets declarations of those officials who are required to submit them.[8] The web site should also provide information explaining how to file complaints, make suggestions and ask questions, and initiate particular procedures or transactions.[9]

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Ecuador

The ATI Law requires all public institutions – including the judicial branch – to provide a minimum set of information on their website. This information includes, among other matters:

• the organization’s basic information, such as its structure, its functions, its basic laws, internal proceedings, goals and objectives of its bodies, the services it provides, hours, forms, and any other information necessary for exercising rights;
• its directory and names of staff;
• staff’s income;
• annual budget, income, expenses, and other financial information, as well as detailed and complete information on public contracts, procurement, purchases, leasing, etc., along with a list of companies and individuals who have breached contracts with that institution;
• internal and governmental audits,
• the institution’s plans and programs;
• details of any foreign and national loans, as well as the source of the resources to repay these loans;
• accountability mechanisms;
• Per-diems for, reports on, and reasons for approval of, trips of national and international authorities, heads of state and public officials.

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Honduras

The TAIA requires every institution—including the judicial branch—to disseminate, by electronic means if possible: (a) basic administrative information, including information on its organization, regulations, policies, salaries and budgets, among many other items, (b) services provided, as well at its laws, regulations, internal decisions, projects and programs; (c) financial reports, budgets and expenditures, and any public contracts and procurement processes, and salaries. The Law on State Contracts establishes provisions to make contract procedures public, such as information regarding purchase procedures.[10] The TAIA specifically provides that offers by companies that participate in procurement proceedings are confidential until the moment they are made public.[11] All public contracts and selection of offers are to be published on the website of the Normative Body of Contracts and Acquisitions (Oficina Normativa de Contratación y Adquisiciones).[12]

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Mexico

The LFTAI (Federal ATI Law) requires that all public institutions – including the judicial branch – make available information related to their organization, management and administration.[13] This information should be provided through electronic means and the institution should offer the use of computers so that the public may access such information.[14] The following information should be published on the website:[15]

• organizational structure;
• duties of and services provided by each administrative unit,
• directory of public officials and their monthly income;
• location of the unit that provides access to information;
• goals and objectives of the administrative units;
• proceedings, requirements and forms;
• information on budget allocations and expenditures,
• audits;
• subsidy programs and beneficiaries of social programs,
• concessions, permits and authorizations,
• public contracts, including their destination (infrastructure, goods purchased or leased, services required), the price, the contractor, and the terms of contract,
• the relevant legal framework;
• the reports they have to issue according to the law;
• citizen participation mechanisms; and
• any other relevant information to answer the questions most frequently asked by the public.

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Panama

The ATI Act requires state institutions to make information available to the public, through different media, including the Internet.[16] It particularly requires the publication of information related to the institution’s internal regulations,[17] general policies, procedural manuals, organizational structure, recordkeeping and filing practices, as well as personnel in charge of the information.[18] The law clearly establishes an obligation for the State to provide information to anyone inquiring about the functioning of the institution, its decisions, programs, budget and statistics, as well as public contracts.[19]

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Peru

Article 5 of the ATI Law requires that all administrative entities in accordance with their budgetary restrictions, must post the following information on their websites:[20]

1. general information about the administrative entity including its communications and administrative orders, organizational structure, procedures, and its legal framework and any corresponding administrative procedures act;
2. budgetary information including data on all expenses, investment projects, salaries, raises, and benefits of all employees including high-level officials;
3. information on any purchases of goods or services (the publication of this information will include details on allocated resources, suppliers, and the quantity and quality of any acquired goods and services);
4. past or planned official activities of high-level officials of each administrative entity, the titles of those in charge of said activities as well as their superiors;
5. any additional information deemed pertinent.[21]

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United States

The US Government is required to, and does in fact, publish considerable information on its various website. One website that is particularly noteworthy is www.USAspending.gov established pursuant to the Federal Funding Accountability and Transparency Act of 2006, which  requires a single searchable website, accessible by the public for free that includes for each Federal award - whether a contract, grant or other form– the following information:

1. the name of the entity receiving the award;
2. the amount of the award;
3. information on the award including transaction type, funding agency, etc;
4. the location of the entity receiving the award; and
5. a unique identifier of the entity receiving the award.

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Selection and Disciplinary Procedures and Criteria

Panama

Panama’s ATI Act establishes the public character of information related to appointments, benefits and travel costs of any public official, including judges, but defines as confidential any information concerning public officials (such as medical or educational information) kept in individual records and human resources files and not relevant to appointment, benefits or travel.[22]

The relationship between these two provisions was clarified by the Administration Attorney (Procuradora de la Administración). In response to a request by a director of a public health facility, the Attorney emphasized that the ATI Act requires the State to disclose the reasoning behind any decision to ensure accountability. Therefore, while the documents containing personal data are considered to be restricted, any document that includes information relating to appointment decisions and criteria should be deemed public.[23]

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Mexico

Any public official’s disciplinary hearing is considered reserved until a decision is reached; however, the reserve does not apply in the case of gross violations of fundamental rights or crimes against humanity.[24]

For selection procedures concerning members of the judiciary in Latin America see Judiciary: Selection Procedures and Criteria. For information regarding discipline of judges, see section on Judiciary: Discipline.

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