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

law confer autonomy, other “bodies, organs, projects and programmes of the State whose activities are
carried out by virtue of administrative power” and private legal bodies which provide public services or
serve in a administrative capacity “by virtue of concession, delegation or authorisation of the State”.
Article 8 further provides that State owned enterprises are also “subject to the procedures established
in this Law”, while Article 9 provides that private legal entities, “as described in Article 1, clause 8 of the
Preliminary Title of Law 27.444,” (see above) “are obliged to inform about the characteristics, costs and
administrative functions of the public services they perform.” This is a more limited set of obligations than
applies to other public bodies.
As noted, the right of access extends to everyone (see Article 7). In case this was not suffi ciently clear,
Article 13 specifi cally provides that a request for information cannot be denied based on the ‘identity’ of
the applicant.
Procedural Guarantees
Requests for information should normally be directed to the offi cial designated by the public body for
this purpose, provided that where no individual has been so designated, the request shall be directed to
the offi cial who holds the information or to his or her immediate superior (Article 11(a)). No reasons are
required to be provided for a request for information (Article 7). The requirement to direct a request to the
offi cial who holds the information may prove problematical, since applicants will often not know who this
is.
Requests shall normally be responded to within seven working days, although this may be extended for
another fi ve working days when it is unusually diffi cult to gather the information. In this case, the public
body must inform the applicant in writing before the expiry of the original seven days (Article 11(b)). These
are very short timelines in comparison to most other RTI laws; indeed they might be criticised for being
unduly short and therefore diffi cult to comply with. Where either deadline is breached, the request is
deemed to have been refused (Article 11(b), (d) and (e)). This is also the case where the response of the
public body is so ambiguous that a request may be considered not to have been fulfi lled (Article 13). Where a
public body does not hold the information but knows where it may be obtained, it shall inform the applicant
of this (Article 11(b)).
Article 13 provides that any denial of access to information must be based on the exceptions contained
in Articles 15-17 and that the reasons for any denial, along with the time during which the information
will remain confi dential, must be communicated to the applicant. These are positive, particularly the
requirement of specifying the time the information will remain confi dential. At the same time, like some
other procedural provisions in the Peruvian RTI Law, they could be more detailed, for example by specifying
in more detail what must be included in any notice refusing access to information. Furthermore, in practice
they are often honoured as much in the breach as many requests are simply met with mute refusals.
Article 20 of the Law sets out the rules relating to fees. Applicants must bear the cost of reproducing
the information requested, but any additional costs shall be considered to be a restriction on the right of
access, subject to sanctions (see below). Every public body must elaborate on the amount of fees allowed
to be charged in its “Rules of Administrative Procedures (Texto Unico de Procedimientos Administrativos—
TUPA)”. These are very progressive rules on fees inasmuch as charges are limited to the cost of reproducing
the information. At the same time, a central schedule of fees would prevent different fees being charged by
different public bodies and fee waivers could have been considered, for example for the poor.
The Peruvian RTI Law makes explicit what many RTI laws leave unclear, namely that public bodies are not
required to create or produce information they do not have or are not obliged to have, although in this case
they must inform the applicant of this fact. Public bodies are also not required to provide an evaluation
or analysis of information (Article 13). This is not unreasonable, but it might be relied upon as a basis for
refusing to perform even quite mechanical operations, such as extracting information in a particular form
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