General Guidelines for Classification and Declassification as Reserved Information of the Institute for Access to Information

SCOPE. These guidelines shall be mandatory for compliance by the Institutions Obligated under the Law of Transparency and Access to Public Information, including within the same:

• A)

  The Legislative Branch, the Judicial Branch, the Executive Branch, autonomous institutions, municipalities and other organs and institutions of the State including Political Parties, Institute of Access to Public Information, Public Ministry, Office of the Procurator General of the Republic, National Commission of Banks and Insurance, Superior Court of Accounts, Supreme Electoral Tribunal, National Commissioner of Human Rights, universities and educational institutions of the State;

• B)

  Non-Governmental Organizations (NGOs), Private Development Organizations (PDOs) and, in general, all those natural or legal persons that, in any capacity, receive or administer public funds, any other that is national or foreign or whether by itself or on behalf of the State or where this has been guarantor, and all those trade organizations that receive income from the issuance of stamps from the retention of goods or that are exempt from the payment of taxes. In this scope shall be included all persons or entities of the private sector that are obligated by the creation of special laws.

DEFINITIONS. In addition to the definitions contained in article 3 of the Law of Transparency and Access to Public Information, for the purposes of application of these guidelines, the definitions established in article 4 of the Regulations of the aforementioned Law shall be considered. CHAPTER II ON CLASSIFICATION

To classify information as reserved or confidential, the heads of the Institutions Obligated shall comply with the provisions of articles 17, 18 and 19 of the Law of Transparency and Access to Public Information, articles 25, 26 and 27 of its Regulations, as well as the provisions of these Guidelines.

The Institutions Obligated, by reason of their nature and specialty, may issue specific criteria for classification, in accordance with what is provided in article 28 of the Regulations of the Law of Transparency and Access to Public Information. A copy of the aforementioned specific criteria shall be forwarded to the Institute by the Head of the Obligated Institution, before the implementation thereof. The Institute shall formulate the necessary observations if the case warrants it.

To substantiate the classification of information as reserved before the Institute, the Obligated Institution shall, through its head, indicate the legal ordinances, articles, sections, subsections and paragraphs that are expressly linked to the legal justification of such reservation. It shall also indicate and justify the period of reservation of the information.

Upon initiating the classification proceedings as reserved of the information, based on one of the assumptions established in article 17 of the law, it shall not be sufficient that the content thereof is directly related to the matters listed in said article, but the Obligated Institution interested in the reservation must also consider and present the existence of objective elements that allow determining whether the disclosure of the information would cause present, probable and specific damage to the legal interests protected by the aforementioned provisions.

Information shall be classified as reserved based on numeral 1 of article 17 of the law, when it refers to aspects that guarantee the integrity, stability and permanence of the State, governance, external defense and internal security of Honduras, and that are directed toward the welfare of society, without negatively affecting the respect, promotion and protection of human rights of the members of the population. For such purpose, the following elements must be addressed: a) Actions destined to protect the integrity and permanence of the State of Honduras are placed at risk when the disclosure of the information could undermine or injure the capacity to defend national territory with respect to other States or subjects of international law. b) Actions destined to protect the stability of the Institutions of the State of Honduras are placed at risk when the disclosure of the information may jeopardize the physical integrity of the highest authorities of the three Branches of State and the organs with constitutional rank. c) Actions destined to protect democratic governance are placed at risk when the disclosure of the information may: 1.- Prevent the right to vote and to be elected; or, 2.- Obstruct the holding of internal and general elections. d) Actions destined to protect the external defense of the State of Honduras are placed at risk when the disclosure of the information could obstruct or block the actions of prevention and defense carried out by the State against other States or subjects of international law. e) Actions destined to protect the internal security of the State of Honduras are placed at risk when the disclosure of the information may:

• 1)

  Obstruct or block military, police or naval operations as organized;

• 2)

  Obstruct or block intelligence and counterintelligence activities;

• 3)

  Undermine or hinder strategies or actions against organized crime;

• 4)

  Undermine or hinder strategies to combat the commission of crimes against State security, provided for in National legislation;

• 5)

  Cause risk of destruction or uninhabitability of infrastructure of an indispensable character for the provision of public goods or services of drinking water, general means of communication or emergency services;

• 6)

  Obstruct or block actions aimed at preventing or combating epidemics or diseases in the country;

• 7)

  Obstruct migration control operations, in the event that the disclosure of the information could prevent or obstruct the actions of organization, coordination, operation and execution of migration services, which are carried out for the entry and departure of nationals and foreigners, as well as the legal stay of the latter in national territory.

Information shall be classified as reserved based on numeral 2 of article 17 of the law, when its disclosure is susceptible to causing serious prejudice to the life, security or health of any person, humanitarian aid, legally protected interests in favor of children and other persons or by the guarantee of Habeas Data. For the foregoing, humanitarian aid shall be understood as: A form of urgent solidarity assistance destined exclusively to save lives, alleviate suffering and preserve human dignity during and after humanitarian or natural crises, as well as to prevent and strengthen preparations related to the eventual occurrence of such situations.

Information shall be classified as reserved based on numeral 3 of Article 17 of the law, when its disclosure is susceptible to causing serious prejudice to: I. The activities of verification of compliance with laws in the event that the disclosure of the information could prevent or obstruct the actions; II. of inspection, supervision, surveillance or oversight that competent authorities conduct to monitor adequate compliance with the various obligations established in legal provisions; III. The activities of prevention or prosecution of crimes, in the event that the disclosure of the information could prevent or obstruct the actions modeled and implemented to avoid the commission of these, or the attributions exercised by the Public Ministry during the preliminary investigation and before the courts of the Judicial Branch; IV. The administration of justice, in the event that the disclosure of the information could prevent or obstruct the function incumbent on the courts to hear and resolve regarding trials, disputes, controversies in accordance with the terms, forms and procedures established in the laws; Likewise, information held by the entities subject to reservation in their actions of decisions implemented by the subjects that intervene in the various stages of judicial, administrative or arbitral proceedings, as well as those that are conducted before international courts, shall be considered reserved until the respective resolution has become final or executable; For the foregoing, each file subject to reservation shall contain a reasoned order that establishes the foundation.

Information shall be classified as reserved based on numeral 4 of the article of the law, when its disclosure is susceptible to causing serious prejudice to 1.- The Guarantees and rights established in the Constitution of the Republic. 2.- The Guarantees and rights established by Special Laws.

Information shall be classified as reserved based on numeral 5 of the article of the law, when its disclosure is susceptible to causing serious prejudice to the conduct of negotiations and international relations entered into by the State of Honduras, this context includes all information from international organizations or other States, received in the character of confidential by the State of Honduras. Excluded from this scope is everything that may violate norms contained in the Constitution of the Republic or in existing Treaties.

Information shall be classified as reserved based on numeral 6 of article 17 of the law, when its disclosure is susceptible to causing serious prejudice to the collection of contributions, prevent or obstruct the activities of collection, compensation of tax income carried out by the authorities empowered to do so, or in any other way may affect the collection of said income. Likewise, and linked to the foregoing paragraph, information relating to the technical procedures in charge of the Central Bank of Honduras, by means of which paper money is elaborated, shall be reserved.

The heads of the Institutions Obligated and the Public Information Officers (OIP) shall have knowledge and maintain a record of the public files that by the nature of their attributions have access to the Files and documents classified as reserved or that contain confidential information. Likewise, they shall ensure that said public servants have knowledge of the importance and responsibility that the handling of such information implies.

In the absence of the heads of the Institutions Obligated, the classification proceedings of the information shall be initiated before the Institute by the public servant who substitutes them in accordance with the Law, Regulation and Statute that precisely is applicable to the Obligated Institution in question.

In accordance with articles 18 of the Law, and 27 of its Regulation, any Classification Agreement issued by the Institutions Obligated in controversy or resolution by the Institute shall be null and void ab initio. If the Institute approves the classification petition, the Obligated Institution shall issue the corresponding Agreement duly motivated explaining clearly the reasons of fact and of Law on which it bases the classification of the information as reserved. Of the Agreement issued the Obligated Institution shall remit a copy to the Institute immediately upon proceeding to the issuance thereof.

Information shall be considered reserved, even if it has not been subject to the classification process established by the Law of Transparency and Access to Public Information, when it has been declared as such by a competent Judge and is contained in judicial files or in administrative procedures conducted in the form of litigation, relating to those actions: diligences proper to the respective litigation or procedure in accordance with applicable legislation; said reserve shall subsist as long as these processes have not become final or enforceable. CHAPTER III OF PUBLIC VERSIONS OF RESERVED INFORMATION

In accordance with the provisions of the second paragraph of Article 28 of the Regulation of the Law, in files and documents that contain reserved or confidential parts or sections, the heads of the Obligated Institutions, through the OIP, shall indicate those parts or sections that may be made available by omitting them.

Likewise, it shall reproduce the public version of the files or documents in case of receiving a request regarding them, without prejudice to the fact that the Obligated Institutions may determine when public versions are created at any time, or when organizing their archives. The reproduction of files and documents that are delivered shall constitute the Public versions thereof. CHAPTER IV OF THE PERIOD OF RESERVE OF INFORMATION

The maximum period of reserve shall be ten years; the heads of the Obligated Institutions shall endeavor to determine that the period of reserve be strictly necessary during which the causes that gave rise to the classification procedure subsist. To establish said period, the heads of the Obligated Institutions shall take into account the circumstances of manner, time, and place related to the information at the time of its classification.

The period of reserve, regardless of what it may be, shall run from the date on which the corresponding Agreement is published in the Official Gazette "La Gaceta".

In the case of information classified as reserved, the Obligated Institutions shall review the corresponding Classification Agreement at the time of receipt of a request for information, for the purpose of determining whether the requested information falls within the content of said Agreement, in which case the delivery thereof shall be denied on the basis of such circumstance.

When in the judgment of an Obligated Institution it is necessary to extend the period of reserve of a file or document, it shall make the corresponding request to the Institute, duly substantiated, at least three months prior to the expiration of the period of reserve in question. The Institute shall resolve by issuing the corresponding Resolution. CHAPTER V FORMAL ASPECTS OF RESERVED INFORMATION

The legend or caption on files and documents classified as reserved shall indicate: I. The date of classification by means of Administrative Agreement, and the date of approval of the classification by the Institute via Resolution; II. The name of the Administrative Unit in charge of which the information is kept in the Obligated Institution; III. The character of reserved or confidential; IV. The reserved or confidential parts or sections, in case the documentation contains public sections; V. The number of the Agreement that established the reserve; VI. The period of reserve; and, VII. The signature of the head of the Administrative Unit in charge of which the information is kept in the Obligated Institution. Said files shall also be properly folioed and contain an index of their content.

In the case of files where public and reserved information subsists, it shall be indicated in their legend or caption, as appropriate, the parts or pages of the document that are classified as reserved, which shall not be available to the public. When information about this type of files is requested, the provisions of Article 19 of these guidelines shall be observed.

The Institute shall prepare and approve a format in which the data alluded to in the foregoing articles may be established by way of Law and legend or caption. The Institute shall distribute said formats to the Obligated Institutions once these guidelines are in effect. CHAPTER VI OF DECLASSIFICATION

Information shall be declassified as reserved in any of the following cases:

• A)

  When the cause that gave rise to its classification has been extinguished;

• B)

  When the period of reserve authorized by the Institute to the Obligated Institution has elapsed;

• C)

  When the maximum period of ten years has elapsed;

• D)

  When there is a judicial order, in which case, the declassification shall be limited to the specific case, under reserve of exclusive use in said case. This information shall be maintained as reserved with respect to the general Public and shall not be available in the judicial file; the Courts of Justice shall have access to reserved or confidential information when it is essential to resolve a matter or when the same has been submitted to trial.

Declassification may be carried out by: I. The head of the Obligated Institution, after prior notification to the Institute; II. The Institute, on its own motion. In both cases, the Institute shall issue the corresponding Resolution.

If, once the files have been declassified for the causes established in Article 24, documents remain that have the character of reserved or confidential, they shall be marked as such, clearly indicating the public and reserved parts of the file once the declassification has been carried out. CHAPTER VII OF CONFIDENTIAL INFORMATION

Documents and files classified as confidential may not be disclosed to any media in each case, without the consent of the holder of said information, without prejudice to the exceptions established in the Law, the Regulation, and these Guidelines. Said consent may be requested in accordance with Article 43 of the Regulation.

Information delivered by private parties to the State shall be confidential, to which the law attributes such character, as well as information relating to confidential personal data defined in numeral 7 of Article 3 of the Law.

Personal data shall be confidential regardless of whether it has been obtained directly from its holder or by any other means.

Personal data relating to a deceased person shall be considered confidential, to which only the following may have access and the right to request its correction: relatives in the fourth degree of consanguinity and second degree of affinity. When the holder of personal data has deceased, and the Obligated Institution that holds them receives a request for access or correction of the same presented by a person other than those mentioned in the preceding paragraph, it may request the consent of any of these under the same procedure established by Article 43 of the Regulation.

In accordance with Article 44 of the Regulation, the authorization of its holder or relatives shall not be required when personal data:

• 1)

  Are necessary for statistical, scientific, or general interest reasons provided by law, prior to consent by which personal data cannot be associated with the individual to whom they will serve;

• 2)

  When transmitted between Obligated Institutions, provided that the data are used in the exercise of their own attributions and functions;

• 3)

  When there is a judicial order;

• 4)

  To third parties, when contracting the provision of a service that requires the processing of personal data. Such third parties may not use personal data for purposes other than those for which they were transmitted; and, 5. In the other cases established by law.

Outside of the previous cases, confidential personal information shall remain as such for an indefinite period of time.

In the exercise of the Right of Habeas Data, interested persons or their representatives may, upon accreditation, request from the corresponding Obligated Institutions the correction of their personal data, indicating for this purpose the system or database of personal data where the correction must be made. The Obligated Institution shall resolve within a period of 30 business days counting from the date of submission of the request, for which it must deliver or request a communication that documents the modifications or inform them in a reasoned and motivated manner of the reasons why the modification is not appropriate. CHAPTER VIII FINAL PROVISIONS

Any other administrative provision regarding access to information that is contrary to these Guidelines is hereby repealed.

These Guidelines shall enter into force as of the day following their publication in the Official Gazette "La Gaceta". Tegucigalpa M.D.C., given in the plenary session hall of the Board of Commissioners of the Public Information Access Institute on the thirteenth day of the month of April 2010. BE IT ENACTED. GUADALUPE JEREZANO MEJIA, PRESIDENT COMMISSIONER. CLAUDIA AGURCIA VALENCIA, COMMISSIONER. ARTURO ECHENIQUE SANTOS, COMMISSIONER. IRIS RODAS GAMERO GENERAL SECRETARY