Municipality of Quito requires mandatory confidentiality clauses, but workers report that it is an attempt to restrict access to public information

At 12:14 on October 20, 2021, the Quito Municipality Human Resources Directorate sent a statement, through the internal communication system (Sitra), informing all municipal officials that they had to sign a confidentiality agreement and a declaration of conflict of interest.

Circular DRMH-2021-00067-C, which contains six attached documents, it was sent to secretaries, rectors of educational institutions, agencies, companies, firefighters, zonal administrations, institutes, foundations and councilors. That is to say, It reached all the authorities of the Municipality of Quito, in order for them to forward it to the rest of the officials, middle and low knobs.

This caused an internal controversy, due to the immediate claim of the municipal workers union, since it is a public institution whose information is not subject to secrecy, except in express cases indicated in the law (personal data or those related to national security, for example).

The confidentiality agreement, to which this Journal had access, establishes the criteria for the reservation of the information of the Municipality and its disclosure. It has eleven clauses in which it commits officials to compliance during the time of their employment relationship and up to two years after leaving the institution.

The main points of the six-page agreement that generated questioning by municipal officials are:

1. The reserve. The official “freely and voluntarily undertakes and obliges not to reveal, disclose or facilitate (…) and not to use for his own benefit or for the benefit of a third party or all the information generated during the term of this instrument, as well as that which belongs (to the Municipality) ”. In addition, it prohibits producing, modifying or making the information public.
2. Information ownership. The parties agree and know that “all the information, studies, results, products, services, among others, that are generated by the official will be the property of the GAD DMQ (Municipality of Quito).”
3. Sanctions In the event that any information is revealed, disclosed or used by an official “in a way other than the object of this instrument, maliciously or by mere negligence”, penalties are contemplated “in accordance with the laws in force for that purpose, considering it as a serious misconduct. due to alteration of the institutional legal regime, without prejudice to the civil, administrative or criminal responsibilities that may arise ”.
4. Criminal field. The Municipality is empowered to institute and / or implement legal actions for damages caused, as well as to become the plaintiff of a criminal, civil and administrative complaint against the official ”.
5. Restricted use. Municipal officials declare that they will use the information of the Municipality “only for the purposes for which access has been allowed, and they must keep said data, information and / or documentation in absolute confidentiality, so they must protect it in accordance with current legislation” .

Faced with these demands, the Association of Municipal Servants of Quito presented a claim on October 21, since they consider that these Agreements violate the rights of workers and undermine the disclosure of public information. The document was sent to Mayor Santiago Guarderas and the President of Quito Honesto, Mauricio Riofrío. It also had a copy sent to the Office of the Ombudsman, the Metropolitan Human Resources Directorate and the Ecuadorian Labor Parliament.

The arguments of the workers to oppose the agreements are:

1. Prior ignorance. The content of the confidentiality documents has not been previously shared with the officials, who, however, are required to sign it.
2. The information belongs to the citizens. According to article 4 of the Law of Transparency and Access to Public Information (Lotaip), “public information belongs to citizens. The State and the private institutions that are depositories of public archives are its administrators and are obliged to guarantee access to information ”.
3. Principle of publicity and disclosure. In the same article of the Lotaip it is established that “the exercise of the public function is subject to the principle of opening and publicizing its actions. This principle extends to those private law entities that exercise state authority and manage public resources ”.
4. Responsibilities for concealment. Article 10 of the Lotaip maintains, on the custody of information, that “those who administer, handle, file or preserve public information will be personally liable, jointly and severally with the authority of the agency to which said information and / or documentation belongs, for the civil, administrative or criminal consequences that may arise, due to their actions or omissions, in the concealment, alteration, loss and / or dismemberment of documentation and public information ”.
5. Reservation contradicts the law. Regarding the obligatory nature of the reservation, the workers point out that in the current legal framework, “the information is public, by legal provision, therefore a contradiction with the law is incurred by declaring the information of the public entity confidential.”

Fausto Delgado, President of the Association of Municipal Servants of Quito, informed this newspaper that the officials continue to be pressured by the zonal authorities to sign this document.

He explained that he held a meeting with the president of Quito Honesto (municipal body), Mauricio Riofrío, and that an agreement was reached to establish working groups before defining the fate of the agreements, in such a way that a middle point can be found that guarantees the security of the institution’s sensitive information and that, at the same time, do not violate the right of workers and citizens to access public information.

For the councilor Juan Carlos Fiallo (RC), “if the rules are not made clear, an official who abides by the supervision of a councilor could respond that cannot deliver the requested information because it is confidential ”.

Suspension and pressures

After the claims of the workers, on October 29, the mayor Santiago Guarderas rescinded, for 30 days, Resolution AQ 006-2021-A, of October 6, 2021, which served as the main input for signing the agreements.

Mauricio Riofrío, for his part, he confirmed that has already prepared a new model agreement that it would only be directed to managers, secretaries, authorities of corporations, agencies and those in charge of important information, such as coercive processes.

Reactions

According Daniela Chacon, coordinator of the Quito Como Vamos Observatory, the preparation of this document, in the first instance, intended to generate a measure of political restriction internally, “As a kind of internal threat, instead of using the legal tools at its disposal.”

He also emphasized that the parameters to define restricted information have to be established by means of a resolution attached to the law. For example, about the operatives.

For its part, Simon Jaramillo, Deputy Director of the Citizen Participation Corporation, stated that the law does provide for the existence of reserved information in the public sectorHowever, he added that this does not mean that public institutions have an open letter to declare any type of information reserved or confidential.

Added that the terms must be very clear, because otherwise there may be serious misinterpretations. (I)