The usefulness of the asset declarations; a challenge for the Peruvian State.

Javier Casas

Lawyer and member of @sumaciudadana

The idea that public policies are essentially, if not exclusively, State matters is deeply anchored in the consciousness of Peruvian civil servants. Citizen participation in public policies has always been a misunderstood matter by policy makers and the administration. Civil servants do not have a clear idea about what citizen participation is, and how they could handle it to improve their work. In the anti-corruption field this is a problem with dramatic consequences, if we summarize what happened during the last 25 years regarding the lack of transparency of the asset declarations that designated officials must send by law to the Comptroller Office.

The Peruvian Constitution establishes in 1993, for the first time, the publication of the asset declarations in the official gazette, something forgotten by its maker, the Fujimori regime. In 2001, during the transitional government, the Congress passed a law to publish the asset declarations. The aim of this law was to give information to citizens to highlight possible cases of irregular increase of assets, and to promote the integrity of civil servants.

In the spirit of the law transparency is understood as an end, not a means. Law makers thought that opening information would be sufficient to create an environment of honesty. At the same time no one knew how this would happen, and state entities feared that the assets, once made public, would only be abused by the wrong people. That explain why the transitional government introduced important restrictions on access to public information through the regulation of this law, with the argument of personal and familial security. To date, only a short and useless summary of the asset declarations gets published in the official gazette.

When the case of access to asset declarations was sent to the Court, the main discussion was limited to determining if it was acceptable a restriction on access to information established by a lower norm than law. For the Court it was acceptable. The Court recognized that maximum transparency of the assets strongly discourages corruption, but also stated that requests about all the details of the goods go beyond the public interest, thus not protected by the Constitution. In this sense, the judges concluded that the security of the civil servants needed urgently be addressed by strengthening their privacy, even by a lower norm than law. The Court also concluded that having specialized State agency (the General Comptroller Office) in charge of overseeing the asset declarations makes citizen participation, at least at some level, unnecessary. Finally, the Court said that the reasonable standard of public information about asset declarations should allow just access to data already available in public registers.

In 2010 Suma Ciudadana organized a meeting to discuss the judgement of the Court. The debate concluded with two important findings. First, asset declarations were qualified as absolutely useless tools to fight corruption (and this perception persists to date). Nobody in the public administration, including the Comptroller’s Office, used asset declarations due important The distrust in the quality of the information. Second, civil servants were unwilling and resistant, to provide asset information to citizens. They agreed to promote citizen denunciation of suspicious increases of assets, but without providing access to relevant information, arguing security of public officials would be threatened.

The result was also a paradox: How to qualify something ‘useless’, if it is not used at all? In this sense, the meeting led to some changes at the Comptroller Office, which began to follow the criteria of the Constitutional Court, and started to provide requestors details about the goods declared by public officers. No other public entity followed this practice. Most information provided by the Comptroller Office allowed Suma Ciudadana to process the information for the first time. We requested information from the mayors of Lima, for the period 2003- 2012, from The Comptroller Office and each municipality. We processed the data and we built an app to track it.

As an example of some kind of crowdsourcing, the analysis provided to us capacity to identify improvements. The value of the goods has not significance in order to do an oversight because the declarant can choose how to give it to each good. In that regard, the summary is absolutely useless because it shows just the total value of the different categories of assets. Three kinds of public information are relevant: 1. The description of the goods: a house, an apartment, a yacht, a car, nominative shares, bank accounts, etc. 2. Where the goods are registered, including the address, and 3. The purchase value or how the good entered in the declarant’s asset. Finally, how to monitor the accuracy of the information? Promoting citizen participation.

We also concluded that the goods of the relatives of the civil servants should be declared and published. However in Peru this will be soon impossibly because in 2014, during the debate to pass a new law, the Congress vetoed this possibility.

To promote citizen participation implies to clarify a point before: Are request for access to all the assets a legitimate public interest or just curiosity of the people? The Court said that it is just curiosity, but really it depends on the level of the State commitment to fight corruption. It depends on how the State (particularly politicians in charge and judges) accepts or not the fact that it needs help and whether it recognizes that citizens have a unique capacity to denounce suspicious assets of civil servants. Through citizen participation government can monitor if officials have declared the truth, receiving information from the people about possible non declared assets. The State should take a political decision balancing access to information, privacy and security, in order to ensure the efficiency of its anticorruption policy.

Reduce transparency obliges to analyze the risks of insecurity with rigor, not with biases. Then, the data does not play against the transparency. In Peru the threat to personal insecurity is focused in robberies in the streets. All the regional surveys put Peru inside the average Latin-American level on extortions, thefts with weapon, and kidnappings, though the sensation of insecurity is very high. In that regard, empirical evidence indicates that cases where assets are opened (as officers of Peru’s northern Lambayeque in 2006 or the mayors of Lima in 2014) were not risky for civil servants. And no one of them considered the publication as illegitimate. On the contrary, in the case of the mayors of Lima, to releasing the data allowed some of them to find inaccuracies and they asked the Comptroller Office to do corrections.

But, if to guarantee the adequate level of transparency of the assets involves a special effort of the State, citizen participation requires another one. Through transparency, the State must promote citizen denunciation in order to reach tangible goals. Then, the State should build its capacity to effectively respond to eventually big amounts of information sent by citizens. There has to be clarity about friendly communication channels and who processes the information sent by citizens. The anonymity of those sending information should also be guaranteed, and the State has to require only reasonable documentation or evidences from citizens (for example just a picture).

However, in Peru the transparency of the asset declarations –the first level of the policy- is still a non solved issue. In November 2015 the Comptroller Office closed the public access to details of the assets of civil servants, just when journalists asked it in the context of the presidential election. The entity declared that it did not was authorized by officials and politicians to disclose details of their assets, contrary to the mandate of the Peruvians Personal Data Protection law, Freedom of Information law, and the standard of transparency set by the Constitutional Court.

@javiercasas

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