On Thursday, 16 May 2024, the new Regulation of the Law on Transparency and Access to Public Information (Supreme Decree No. 007-2024-JUS) was published in the official gazette El Peruano. This rule replaces the previous regulation approved in 2003, which received only some partial modifications in 2013, 2017 and 2018. In this alert, we tell you what is new.
The approved regulation develops Law No. 27806 (Law on Transparency and Access to Public Information), whose Sole Ordered Text was approved by Supreme Decree No. 021-2019-JUS. Its purpose is to establish guidelines and rules to promote transparency in the acts of the state and the exercise of the fundamental right of access to public information.
Among the novelties is the incorporation of a Preliminary Title, which contains key definitions (Article III) and cases not included within the scope of application of the regulation (Article V). In this regard, it is important to point out that the regulation does not apply to the following, among others:
Requests for information between public entities, which are governed by the duty of collaboration enshrined in the General Administrative Procedure Law (V.5.1).
Requests from public entities for a hearing, interview or consultation with the entities on the matters under their responsibility or the “sense of the regulations,” which are governed by the “consultative petition” procedure provided for in the General Administrative Procedure Law (V.5.4).
Requests for certified and authenticated copies, which are governed by the procedure established by each entity in accordance with the General Administrative Procedure Law (V.5.7).
The highest authority of each public entity must (i) designate the official responsible for handling requests for access to information and (ii) designate the official responsible for implementing and updating the Transparency Portal. A new rule is that the head of the entity now delegates this power of designation to the secretary-general “or whoever acts in their stead.” The highest authority of each entity must also guarantee access to public information “considering the cultural diversity of the country” (Article 1.9) and promote “access to information disaggregated by sex, age, ethnic self-identification, mother tongue, disability, geographic area of origin, among others” (Article 1.10).
Another relevant new rule refers to transferring requests for access to public information to other entities. Previously, when a request for access to public information was made to the wrong entity, the request was rejected outright. Now, it is clearly established that “the entity that is not competent transfers the request to the obliged entity or to the entity that holds the information within a maximum term of four working days, counted from the day following the day of receipt of the request, plus the term of the distance. The external transfer of the request is accredited with the reception charge and/or entry registration”.
On the other hand, it is also established that if the public entity receives the request and is unable to comply with the request within the seven working days required by law, the following rules apply:
If the entity is going to communicate an extension, it must do so until the second business day after the request was submitted (Article 23.1).
In the communication of the extension, the entity must indicate (i) what will be the single date of delivery of the information or (ii) the schedule of partial deliveries (Article 23.2).
If the extension exceeds 30 working days from the date the request was submitted, the entity must include a schedule of partial and progressive delivery of the information. If any date is not met, this constitutes a denial (Article 23.3).
The considerations for which the extension is appropriate include: (i) lack of logistical capacity or insufficient means to reproduce the information (Article 24.1.1); (ii) lack of operational capacity, such as computer support or internet line (Article 24.1.2); (iii) lack of human resources or personnel capacity (Article 24.1.3); or (iv) when the request is voluminous and includes extensive information that requires more time for its search, selection, accessibility evaluation, application of protection mechanisms, etc. (Article 24.1.4). The conditions of Articles 24.1.1, 24.1.2 and 24.1.3 must be stated in a management instrument or internal administrative act dated prior to the request, in order for the extension to be valid.
Another new rule is that access to institutional emails of former officials and former public servants is regulated (Article 37). When the official leaves the entity, “they are obliged to hand over the information contained in the assigned institutional email account” (Article 37.2). In addition, it is established that the information in the institutional email accounts must be kept and transferred “following the guidelines and directives issued for this purpose by the National Archive System, with the coordination and favorable opinion of the Secretariat of Government and Digital Transformation of the Presidency of the Council of Ministers” (Article 37.5).
The new regulation also establishes improvements in the procedure to make predictable the transit through the Court of Transparency and Access to Information, when the request for information is denied. This includes setting a maximum term for the admission of the appeal, as well as for the compliance of the resolutions that declare an appeal founded and the possibility for the court to exceptionally admit the appeals filed before the entities and when the appellant informs that they are not raised by these.
Finally, in Chapter III, the regulation also establishes how the sanctioning procedure against legal entities under the private regime is handled: (i) the Directorate of Transparency and Access to Public Information is in charge of the investigation phase; and (ii) the General Directorate of Transparency, Access to Public Information and Protection of Personal Data is in charge of the sanctioning phase.
In addition, the following infractions are established:
Article 64 — very serious infringements
The following behaviors constitute very serious infringements:
64.
64.1. Subtracting, destroying, misplacing, altering and/or mutilating, totally or partially, the requests for access to information to which it is obliged to deliver in accordance with Article 9 of the Law on Transparency and Access to Public Information.
64.2. Issuing regulations, directives, instructions or orders that contravene the legal regime of access to information or that have the effect of non-compliance with the obligations contained in the regime to which it is bound.
64.3. Failing to comply with the orders of the Court of Transparency and Access to Public Information in the exercise of its functions.
64.4. Denying requests for access to information without stating reasons or with apparent motivation.
Article 65 — very serious infringements
The following behaviors constitute serious infractions:
65.
65.1. Refusing to receive requests for access to information.
65.2. Attending to requests for access to public information outside the legal term or the date established in the extension, without any justification whatsoever.
65.3. Handling requests for information by delivering outdated, incomplete and inaccurate information.
65.4. Demanding different or additional requirements to those contemplated by law in order to respond to requests for information.
65.5. Approving or making additional charges that are not related to the cost of reproduction of the information, if applicable.
65.6. Not attending to requests for access to public information.
65.7. Denying information by unduly attributing to it the quality of information classified as secret, reserved or confidential.
65.8. Making improper use of the extension regulated in subsection g) of Article 11 of the Law, alleging assumptions not contemplated there and/or establishing unreasonable dates for the delivery of information.
65.9. Failing to designate the employee responsible for responding to requests for access to information.
65.10. Unjustifiably failing to comply with the deadlines and actions established in Article 26 of these rules.
65.11. Failing to submit the appeal to the Court of Transparency and Access to Public Information within the established term.
Article 66 — minor infractions
The following behaviors constitute minor infractions:
66.
66.1. Failing to channel requests for access to public information referred to in subparagraphs a) and b) of Article 11 of the Law.
66.2. Failing to communicate the use of the time period referred to in Article 11(g) of the Law.
These violations may result in the following penalties:
Article 67 — administrative sanctions
67.
67.1. In accordance with paragraph 35.2 of Article 35 of the Law, legal persons are subject to the sanction of a fine.
67.2. According to the classification of the infraction, the competent authority applies the following fines, observing the incremental set forth in Law No. 27444 (General Administrative Procedure Law):
67.2.1. Minor infractions are sanctioned with a fine of up to one UIT.
67.2.2. Serious infractions are sanctioned with a fine of not less than one UIT and up to three UIT.
67.2.3. Very serious violations are sanctioned with a fine of not less than three UIT and up to five UIT.
Finally, and according to the information provided by MINJUS, within the framework of its promotional and fostering function, the National Authority of Transparency and Access to Public Information will initiate a series of training actions, workshops and conferences at the national level to make the scope and novelties of the new regulation known.
We hope that this information will be useful to you and your company. If you have any questions or concerns, please do not hesitate to contact us.
* * * * *
© 2024 Estudio Echecopar. All rights reserved. Estudio Echecopar is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.
