Freedom of Information: A Comparative Legal Survey - Federation of ...

mostly relating to the police and justice system; Article 17 deals with ‘confi dential information’, which
includes a range of other types of exceptions; and Article 18 places conditions on these exceptions.
According to Article 18, Articles 15-17 provide the only grounds upon which a refusal of access may be
based, they may not be overridden by a “norm of a lesser scale” and they should be interpreted in a
restrictive manner. These are progressive general rules. Article 17(6), however, provides for an exception
for all information which is protected by legislation approved by Congress or the Constitution. Article 17(2)
goes even further, rendering confi dential information protected by legal rules in various areas such as
banking, tax and so on. 240 As a result, the RTI Law fails to override secrecy provisions contained not only in
other laws passed by Congress but also lower order legal rules.
The Peruvian RTI Law establishes a complex relationship with classifi cation systems. It states that only
heads of departments, or offi cials nominated by them, may classify information. It then goes on to list the
cases in which information might be classifi ed, which constitute the bulk of the exceptions. Presumably
information classifi ed in breach of these rules would still be subject to disclosure.
Many of the exceptions in the RTI Law do include a specifi c harm requirement. However, the intelligence
and counter-intelligence activities of the National Intelligence Council (Consejo Nacional de Inteligencia,
CNI) appear to be excluded entirely from the ambit of the law, without regard to specifi c harm (Article 15).
Furthermore, most of the exceptions relating to national defence, described as military classifi cation in
the Law, do not include a harm test, although some do. This category, for example, includes defence plans
for military bases, technical developments relating to national security, and so on, regardless of whether
or not the disclosure of this information would cause any harm. In comparison, exceptions relating to
intelligence (with the exception of the CNI, as noted above), as well as the categories of reserved and
confi dential information, mostly refer to some sort of harm, although in some cases the standard is low,
as in ‘could endanger’ or ‘could put at risk’.
Signifi cantly, the exception in favour of internal deliberations does not include a harm test, so that all
information that contains advice, recommendations or opinions as part of the deliberative process is
confi dential. This exception is ‘terminated’ once the decision is made, but only if the public body makes
reference to the advice, recommendation or opinion. As a result, background documents may remain
confi dential even once the matter to which they relate has been completed.
The RTI Law does not include a general public interest override. Article 18 does, however, include two
specifi c overrides of a public interest nature. First, it provides that any information relating to violations
of human rights or the Geneva Conventions of 1949 cannot be considered confi dential. Furthermore, the
exceptions may not be used to undermine provisions in the Peruvian Constitution.
Second, various actors – the Congress, the judiciary, the General Controller (Contralor), and the Human
Rights Ombudsman (Defensor del Pueblo) – have a right to access even exempt information under various
circumstances, mainly relating to the proper exercise of their functions. Judges, for example, may access
confi dential information when exercising jurisdiction in a particular case and where it is required to get to
the truth and the Ombudsman can access information where pertinent to the defence of human rights.
Article 19 of the RTI Law establishes a rule of severability, whereby that part of a document which is not
exempt must be disclosed even if part of the document is confi dential.
Article 15 establishes a rule of historical disclosure, but apparently only for exempt information falling
within its ambit, namely defence and intelligence information. The system provides that a request for
information which has been classifi ed for fi ve years or more may be satisfi ed if the head of the relevant
department declares that disclosure will not harm security, territorial integrity or democracy. If a request
for such information is denied, the head must provide reasons for this in writing, which must be forwarded
to the Council of Ministers, who may declassify the information.
The specifi c exceptions established by the Peruvian RTI Law are as follows:
information classifi ed for military reasons, with several sub-categories elaborated (Article 15(1));
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