Access to Public Information in Social Security and ...

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Access to Public Information in Social Security and Public Healthcare Institutions* Issa LUNA PLA Abstract In this article Issa Luna Pla analyzes the impact and effects of international legislation on the right to access public information in social security and public healthcare institutions, in view of the latter’s contribution to modern democratic systems. Initially, the she explores the consequences of transparency in government, before going on to analyze its results in legislative reform processes. Finally, Luna Pla emphasizes the importance of adopting legislation and policies to protect personal data that complement the right to public information and which are essential in social security and public health care institutions.

Resumen Issa Luna Pla analiza en este artículo el impacto y efectos de la legislación internacional del derecho de acceso a la información pública en las instituciones de seguridad social, a la luz de su contribución a los sistemas democráticos modernos. Inicialmente expone las consecuencias de la transparencia en los gobiernos, para después analizar las mismas en los procesos de reforma legislativa, y finalmente, enfatiza en la relevancia de legislar y adoptar políticas de protección de datos personales complementarias al derecho a la información pública y esenciales en las instituciones de seguridad social.

* This article was prepared for and originally published in the magazine Seguridad Social, No. 245.

Comparative Media Law Journal Number 3, January-June 2004

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Over the years at least 45 countries throughout the world have adopted laws on access to public information or have now constitutional provisions that legislate freedom of information. This tendency to regulate the right to access information intensified as of the 1960s, which means that most of the international legislation in the field is relatively recent. Without ignoring the limited legal materials existing on the subject, the doctrine and jurisdiction in comparative experiences have contributed to outlining effective formulas to guarantee this fundamental right and, in turn, to identify some of its consequences to the advantage of both citizens and governments. In this article I seek to present the right to access information from the point of view of its implications on government (or good government)1 and in promoting legislative reforms in countries with democratic systems. I shall conclude by analyzing the protection of personal data as a limitation to the scope of the right to access information, with special emphasis on social security and public healthcare institutions. The right to access public information is the fundamental right of an individual to know information and documents held by public entities, that is, to be able to obtain such material. On a second level is the right to be opportunely and truthfully informed by public institutions.2 In a modern 1 See World Development Report 2002 Building Institutions for Markets, Part III, Chapter 5: ‘‘Good governance also means the absence of corruption, which can subvert the goals of policy and undermine the legitimacy of the public insti tutions that support markets’’. 2 This right is derived from the historical evolution of freedom of speech and freedom of information, both of which were established in international law, mainly in Article 19 of the Universal Declaration on Human Rights: ‘‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’’. The International Covenant on Civil and Political Rights also establishes both rights in Article 19: 1. Everyone

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interpretation of this universal guarantee, the objective of the right to access public information is to grant the power derived from public information to individuals for daily decision-making in the different social sectors, as well as to place at people’s disposal the information that helps them exercise their political rights and improve their quality of life. However, it is well known that access to public information also contributes to making the public administration through government institutions transparent, favors economic growth and above all, strengthens relations of confidence between government and the governed. This ambivalence between guaranteeing a fundamental right and implementing policies of transparency is what I shall be interested in considering throughout this essay. At this point it is important to mention that the freedom of information, as in the case of all universal rights, is not absolute. It is possible to find a consensus in democratic theory acknowledging the need for secrecy in government. According to comparative jurisprudence, legislation on the question considers information to be reserved in exceptional circumstances, in cases when it: a) compromises national and public security or national defense; b) affects international relations and negotiations; c) involves financial, economic and monetary stability; d) jeopardizes people’s life, safety and/or physical integrity or privacy; e) can cause serious damage to law enforcement efforts; f) concerns court cases, tax payments, immigration control opshall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are neces sary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals". 5

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erations or procedural strategies in judicial or administrative processes (as long as the rulings do not effect ongoing litigation).3 1. Access to Public and Government Information It is interesting to note that laws on access to public information are usually the first ones to be adopted as an initial social commitment on the part of governments that are entering modern democratic processes.4 In Eastern European countries such as Hungary (1992), Latvia (1998), Bulgaria (2000), the Czech Republic (1999), Romania (2001) and Slovakia (2000) the democratic transitions from socialist governments have involved the establishment of new rules of the game, with laws adopted on access to information. Latin America has gone through this same process following the fall of its authoritarian or dictatorial regimes, also adopting the corresponding legislation. This has been the case in Argentina (1998), Mexico (2002), Panama (2002) and Peru (2002). However, the legislative reform processes in these countries have not been gratuitous; they not only had to reconcile the necessary political conditions, but the parties involved also had to reach a thorough understanding of the fact that these laws are not a nicety conceded to the communications media by virtue of which their journalists 3 Through laws on access to information, both secrecy and openness can be justified in the understanding that they contribute to ‘‘good government’’, which in principle should be seen in terms of democracy. For this reason, the right to access information is not an absolute right. Its limits involve common sense and the rights of third parties. Thus, secrecy (or covering up information) is necessary for planning projects, not only to protect their preparation, but also for their development and implementation. 4 A feasible explanation for this phenomenon is that the more centralized and clearly hierarchical a power structure is, the greater the incentive to favor secrecy will be. The more decentralized and horizontal a power structure is, the greater the incentive to favor access will be (Robertson, 1999).

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can keep themselves informed and obtain data for their readers. The right to access information is currently interpreted as a fundamental right for all individuals and proof of this is the abundance of legislation in effect in the field.5 Indeed, the laws on access to information seem to result in important and concrete political benefits, since they are considered a decisive step in consolidating a participatory democracy. They favor government accountability, promote the maintenance and systematizing of public archives, make the public administration more efficient and facilitate timely decision-making. Such laws also allow the population to make better informed decisions and to improve the quality of their lives by exercising their rights. When economic data held by the government become available, access to information contributes to promoting a culture of openness and transparency, which strengthens a climate of confidence for economic, political and social decisions, ensuring that constant flows of communication are maintained among the participants involved. As a result, countries with laws on access to information have lower levels of corruption, since access helps fight that corruption, as can be seen in Figure 1.

5 According to Luigi Ferrajoly, ‘‘(fundamental rights) do not represent a selflimitation that can always be revoked by the sovereign power, but, on the contrary, they are a system of limits and ties above (the state). Therefore, we are not dealing with the ’ rights of the state", ‘ for the state’’ or ‘ in the interests of the state’’, as Geber or Jallinek write, but of rights in relation to and if necessary, against the state, that is, against the public powers although the latter might be democratic or represent the majority" (Ferrajolly, 2002, p. 53).

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Figure 1

OECD Countries 3

Denmark Switzerlan d

2

UE

Corruption

2

1

1

Korea 1-

Turkey

1-

Mexico

0 0

Transparency and Accountability 1

1

2

2

Source: World Bank – Kaufmann et. al. Working Paper 2196 1-

Countries with Freedom of Information Laws

Nor is the implementation of policies on transparency and government accountability new to international financial institutions. The International Monetary Fund adopted the Code of Good Practice on Transparency in Monetary and Financial Policies: Declaration of Principles on September 26, 1999, in which these principles are designed both for financial institutions and central banks. In September 1998, the International Financial Corporation (IFC) issued its IFC Policy on Access to Information. As of 1994, the World Bank anticipated the need to make a larger amount of information public, and in 2001, following the results of a public consultation, drafted its policy on access to information, which was further revised in 2002. Although these policies are not exactly the example of a greater opening or the maximum norms that should be reproduced in legislation on transparency and access to information in all countries, they represent significant efforts that set the 8

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standard for advances in the economic and social development of the international democracies.6 In terms of the administrative development of government, it is common knowledge that ’collective practices of concealment’ or organizational cover-up, are particularly dangerous when those that employ them hold power and, in the absence of responsibility and safeguards, concealment makes them even more powerful.7 One can identify the administrative benefits in adopting laws on access to information when they: a) motivate the compilation of clear and precise data; b) force the public administration to adopt policies to systematize, organize, and maintain archives. Figure 2 shows government efficiency among Organization for Economic Cooperation and Development (OECD) member countries with laws on access to information. In fact, the opening up of access to information exposes government errors to public scrutiny and encourages joint activities to promote effective practices. In a recent study carried out by Roumeen Islam, the Kaufmann, Kraay, and Zoido-Lobaton index is used to plot government effectiveness in countries with laws on access to information and in others without such legislation. In the Islam study, both indexes (in KKZ and ICRG) demonstrate that the more access there is to information, the better the quality of government will be and, therefore, countries with laws on access to information tend to govern well. 6 "For one, the public can judge their governments" ability to make sound policy by looking at such data [economic data]. The ability to judge leaders ac cording to how they perform in the economic sphere can affect the level of support the government has and determines how long they stay in power. In countries where different constituents are able to gauge economic performance, and where citizens are well informed, people are more likely to demand governments that govern better and governments have more of an incentive to do well. These governments become more accountable to their people" (Islam, 2003, p. 5). 7 Philosophically outlined in the book Secrets by Siessa Bok, quoted by K.G. Robertson.

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Figure 2

OECD Countries 3

Switzerlan d 2

Government Efficiency

Denmark 2

UE 1

Mexico

1

Korea 0

1-

1-

0

Turkey

1

1

2

Transparency and Accountability

2

1-

Source: World Bank – Kaufmann et. al. Working Paper 2196 1-

Countries with Freedom of Informationa Laws

Economic theory has confirmed, from different angles, that information and the flow and exchange of that information leads to better decisions, to the monitoring of participants in the economic process and to establishing a system of rewards and sanctions in accordance with public data. This is related to governments because if the administration does not begin to place substantial economic information at the disposal of the economic agents for the purpose of decision-making, if it does not organize and systematize this information for its subsequent publication, the conditions under which the agents participate will be inferior and they will have less capacity to supervise the processes. These theories reveal that there is an important relationship between information flows and the speed at which the economies grow.8 8 Authors of material on the subject include B. Chowdhry and A. Goyal; S.J. Grossman and O.D. Hart; Tullio Jappelli; Marco Pagano; and Tony Wirjanto.

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2. Access to Public Information and Legislative Reforms The relationship between public information and legislative reforms has not been thoroughly studied, specifically in terms of defining the contribution that laws on access to public information can make to the complex processes of state reform. Slovakia’s law, for example, allows any person to access drafts of legislative bills that are before Congress and offer comments on the proposals in the parliamentary debate. Such opinions are usually taken into account by the legislators. This case provides a formula for citizen participation that naturally legitimates the reforms, although it has yet to be proved whether it speeds up or slows down the process of achieving a consensus. On this point the most valuable aspect of legitimizing the legal reforms takes place through early and opportune publicity on the contextual information and the legislative bills that are in the process of being negotiated. Another line of analysis regarding this relationship concerns the flows of information between the public powers involved in the reforms. By having clear rules on access to information, the public powers face the same conditions to obtain data that lead to political agreements and informed decisions. Often parliaments lack sufficient information on the Executive Branch’s expenditure on social security and public healthcare, and therefore, legislators are reluctant to approve substantial reforms that could lead to a better use of the resources earmarked for this area. In other words, laws on access to information sometimes lead to a reduction of existing restrictions on the flow of information, but also contribute towards strengthening confidence among public powers. 11

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A further example is the US legislation on access to information that establishes the figure of ’public hearings’, parliamentary meetings that provide space to the communications media and society in general during legislative sessions. However, as in the case of Slovakia, scientific studies have yet to prove that there are concrete benefits, beyond the implicit guarantee of freedom of information, which in and of itself is important. 3. Social Security and Public Healthcare in Context In its Global Report on Corruption in 2003, the non-governmental organization Transparency International affirmed that if confidence is to be restored in public and private institutions, access must be guaranteed to information in order to promote transparency, and this perhaps is the most powerful weapon against corruption. But it will also ensure the credibility of such institutions and, as has already been mentioned in this essay, their prosperous economic and social development. Indeed, when citizens are better informed on the subject of savings and retirement funds, it is more likely than the decisions that they take will be more solid and will be sustained longer, thus favoring stability in the institutions’ services and administration. The access to information in healthcare systems reduces corruption, but also it allows people to have information on their medical files and, at the same time, raises their valuation and appreciation of the services. In addition, considering the importance of reliability in healthcare institutions, administrative transparency clearly can boost support for legal reforms, while keeping the taxpayers satisfied. 12

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In general, decision-making in social security and public healthcare institutions in designing public policies in such areas as birth control, workplace accidents and approval of sick leave, among others, can be efficient and effective. But it does not only guarantee benefits for the institutions. In the previously mentioned issues, and especially with respect to the implementation of birth control policies, access to public information (taken as the right to access information and the corresponding obligation of the government to inform) contributes to the respect for human rights, since it places in the individual’s hands the informed possibility of choosing in favor or against one or another method of contraception (or retirement plan, or the advisability of selecting one or another job), forging transparent and, above all, reliable, social security and healthcare policies. In short, legislation on access to public information through specific laws seems to be the best option for the consolidation of institutions and public policies in accordance with democratic standards. However, this still leaves the question of the appropriate application of the principle of access to information when, at the other end of the scale, one is seeking the implementation of security social policies for the misinformed, uninformed or illiterate. In countries such as India, or African nations living in extreme poverty, or even in the indigenous communities of Latin America, the communications media often carries reports of the implementation of health and reproductive care programs against the will of the affected populations although such policies may well resolve some of the immediate problems of the respective governments. At the same time, a crucial aspect of legislation on access to public information implemented in social security and public health care institutions involves the protection 13

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of personal data. Medical histories, retirement funds, sick leave, all involve information files concerning individuals, that is, personal data. The countries that have laws on access to information usually adopt regulations concerning the protection of personal data.9 Personal data icomprises information concerning an individual or company, identified or identifiable, capable of revealing data about their personality, their affective and family relationships, their ethnic or racial origin, or that refers to their physical, moral, sociological or emotional characteristics, their physical and e-mail addresses, national ID card number, telephone number, properties and assets, ideology and political opinions, religious or philosophical beliefs and convictions, physical or mental health, sexual preferences, genetic code, or other similar data of a private or intimate nature.10 The laws on protection of personal data regulate the compilation, administration and treatment of personal data held by state agencies and they guarantee access to interested parties (those who are the subject of the information) or to third parties when those affected have granted their prior consent. In addition, these laws establish policies regulating the storage and national and international transfer of databases containing personal information. With this understanding, the European Parliament has defined the concept of ’Treatment of Personal Data’ as any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation 9 See http://www.privacyinternational.org for a review of countries with laws protecting personal data. 10 This definition was recently adopted in the Heredia Internet and Legal System Seminar-Workshop, Minimum Rrules for the Circulation of Legal Information on the Internet, 8-9 July 2003, Costa Rica.

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or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Different legislations therefore establish a ’comptroller’, the individual or entity that determines the purposes of providing access to the personal data, and which makes and implements decisions in relation to this information and authorizes the person in charge of the data to use it. Concretely, the scope of the personal data implies an obligation on the part of the individual responsible for that information to conserve the accuracy and truthfulness of the data, to provide the technical security for its treatment and storage, as well as to notify the control or supervisory authorities of the existence of personal databases. Those who are the subject of the information therefore have the right to be informed of the purpose for compiling their data and how it will be treated, of the procedure to access such data, to correct, modify or eliminate the data concerning their person. The right to protect personal data is not an absolute right. Indeed, in comparative experiences, exceptions are contemplated: 1. Access on the part of other individuals to personal data that does not concern them; in this case, access is restricted and is subject to the prior authorization of the subject of the information. The reasons for a negative response in this regard would be: a) Protecting the subject of the information or the rights of third parties; b) Due to secrecy concerns medical, banking, commercial, state, and genetic; 2. The exceptions generally considered for compiling personal data without the consent of the individual involved proceed when such data is to be used in current cases in relation to: a) public and national security; b) military defense; c) activities of the State in the judicial field. In all these cases, the legal authorities should 15

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adopt measures of extreme security to compile, process, and store personal data. In the United States, through the Privacy Act, during 2002 the Social Security Administration (SSA) reported having received 268,488 requests for public information, of which 2,643 were classified as clearly representing an unjustified invasion of individual privacy, since the law requires the consent of the persons involved for such data to be released. 4. Conclusions 1. Adopting regulations on access to public information legitimizes the government’s control over such data, while at the same time it guarantees people’s fundamental right to know. 2. The credibility of the social security and public healthcare institutions, their effectiveness and efficiency, are benefited by administrative transparency. 3. Access to information legitimizes legislative reform processes and promotes a favorable and informed environment for achieving political consensus. 4. The value of secrecy and openness should be judged in terms of their contribution to democracy and not for their political benefit or for their importance in implementing policies with a limited scope. 5. Laws for the protection of personal data represent complementary legislation and are inherent to the question of access to public information and by nature are of key importance for social security and public health care institutions.

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5. References Directive 95/46/EC of the European Parliament and the European Council, 24 October 1995, concerning the protection of individuals in relation to personal data and the free circulation of such data, Official Journal of the European Communities, no. L 281/31. FERRAJOLI, Luigi, Derechos y garantías. La ley del más débil, third edition, translated by Andrés Ibáñez and Andrea Greppi, Madrid, Editorial Trotta, 2000. Freedom of Information Activities (FOIA) Annual Report of the Social Security Administration (SSA) for 2002, Social Security Online, www.socialsecurity.gov Internet and Legal System Seminar-Workshop, Minimum Rules for the Circulation of Legal Information on the Internet, 89, July 2003, Costa Rica. ISLAM, Roumeen, Do More Transparent Governments Govern Better?, Policy Research Working Paper 3077, The World Bank, World Bank Institute, Poverty Reduction and Economic Management Division, June, 2003. JAPPELLI , Tullio and PAGANO , Marco, Information Sharing, Lending and Defaults: Cross-Country Evidence, Working Paper 22, Centre for Studies in Economics and Finance, May, 1999. ROBERTSON, K. G., Secrecy and Open Government. Why Governments Want you to Know, Basingstoke, Macmillan, 1999. Transparency International, Global Corruption Report 2003, http://www.globalcorruptionreport.org/download.shtml. World Bank, World Development Report 2002 Building Institutions for Markets, Washington, DC, http://wwwwds.worldbank.org

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