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

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Peru
Introduction
The 1993 Peruvian Constitution guarantees the right to access information held by public bodies. 236
The guarantee stipulates that no reasons need to be given for requesting information but it is limited to
‘required’ information. The Constitution also gives broad protection to “banking secrecy and confi dentiality
concerning taxes”, as well as private and family information. 237 The Law of Transparency and Access to
Public Information, adopted in August 2002, which gives legislative effect to this constitutional guarantee,
is not limited to required information. 238 It was, however, criticised, in particular for its very broad regime
of exceptions, and was also subjected to a legal challenge by the Ombudsman Offi ce. 239 As a result,
amendments to the Law were promulgated in February 2003, just after it had come into force, to help
address these concerns.
The Peruvian RTI Law is a progressive one, which includes all of the key characteristics required to give
effect to the right to information in accordance with the principle of maximum disclosure. In some areas,
its provisions, while appropriate, are rather brief, leaving out some details which are found other laws. On
the other hand, its provisions on the proactive disclosure of information are perhaps the most detailed to
be found in any RTI law, particularly in relation to fi nancial information.
The Right of Access
The Peruvian RTI Law clearly establishes a right of access to information held by public bodies. Article 1
describes the purpose of the law as being to “promote transparency of acts of State” and to regulate the
right to information as provided for in the Constitution. Article 7 provides that every individual has the right
to request and receive information from public bodies. Article 3 supports this, providing that all information
held by the State, other than that covered by the exceptions, is presumed to be public and that the State
is obliged to provide information upon request, in accordance with the “Principle of Public Disclosure”.
The Law does not elaborate in specifi c detail on its purpose, over and above these general, albeit strong,
statements in favour of openness.
Article 10 is the main provision elaborating on the scope of information covered by the RTI Law. It notes
that public bodies are obliged to release information whether held in “written documents, photographs,
recordings, magnetic or digital devices or any other format”, but only if the information was created or
obtained by the entity and is under its possession or control. Furthermore, any documentation fi nanced by
the public budget, based on decisions of an administrative nature, is public information, including records
of offi cial meetings. Article 3 elaborates on this by providing that all activities and regulations of public
bodies are subject to the Principle of Public Disclosure.
This is a broad defi nition, although it is not entirely clear what effect the limitations it contains might have.
‘Created or obtained’ by the entity would appear to cover most information which might be considered to
be public. The requirement that the information must be under the possession or control of a public body
is also reasonable, as long as even information archived with a private body is considered to be under the
control of the public body which so archived it, as long as it remains accessible to the public body.
Article 2 of the RTI Law defi nes public bodies as those included in Article 1 of Preliminary Law No. 27.444,
the Law of General Administrative Procedures. This Law defi nes public bodies as all three branches of
government – the executive, including ministries and decentralised public bodies, the legislature and the
judiciary – as well as regional and local governments, any bodies upon which the constitution or another