The legal and institutional enabling environment for open government in Costa Rica: Towards an open state

Robust institutional and legal frameworks are at the heart of a successful implementation of open government policies and initiatives. They provide the basis for inter-institutional co-operation and the effective transformation of national policy objectives into good practices. In terms of its legal framework for open government, Costa Rica has made important progress over the past years. Like in many OECD countries and in other Latin American countries, in Costa Rica the principles of an open, participatory and transparent government are enshrined at the highest legal level. The Costa Rican Constitution from 1949 includes a wide range of articles that lay the constitutional groundwork for an open state. The country has also recently introduced legislation on digital government, anti-corruption and transparency, and the Municipal Code sets out the legal basis for open government at the local level.

For the time being, only a limited number of OECD countries are involving the Judiciary and the Legislature in their open government processes. Costa Rica is a pioneer in this area. Costa Rica’s Judiciary was involved in the elaboration of the second OGP Action Plan and is elaborating its own “Open Judiciary” policies. The same applies to the Legislative Assembly, which is working on an “Open Legislature” initiative.

In order to further improve the legal and institutional enabling environment for the open state, the Review recommends that the country:

1. Pass an Access to Information Law, ensuring that it is applicable to the whole public sector, including the institutionally decentralised sector (eg. semiautonomous and autonomous bodies). The right to access government information is a necessary legal foundation for transparency, accountability and citizen participation in policy making (OECD, 2014). It is the cornerstone of an open and inclusive government. Access to public information is a crucial element to increase accountability, contribute to the efforts to reduce corruption and deepen mutual trust among citizens and their governments. Furthermore, access to public information allows citizens to better understand the role of government and the decisions made on their behalf; to hold governments accountable for their decisions and policies; and to choose their representatives more effectively. Costa Rica does not currently have an Access to Information Law, and the draft version from 2014 assessed in the Review, while is generally in line with

OECD practices, only applies to those institutions that depend on the central government.

  • 2. Draft a law on citizen participation to enhance the quantity and quality of engagement opportunities provided. The various constitutional provisions foreseen in this area do not seem to be sufficient to establish an effective degree of participation of all relevant stakeholders in the policy cycle. Formal opportunities defined by the Constitution and by law, such as referenda and the popular initiative, appear not to have achieved their intended effect, and they appear to be often underutilised. Despite these challenges, Costa Rica has managed to create various informal mechanisms to ensure citizen involvement in public affairs, such as ad hoc or permanent mechanisms that, although they are not necessarily institutionalised, have been used extensively by citizens to influence the decision-making processes, not only at the national but at the local level. By unifying all formal and informal participation mechanisms under a sole legal instrument, as done for example by the Government of Colombia, Costa Rica would increase their use and maximise their impact.
  • 3. Consider creating a national network of civil society organisations focused on open government in order to increase the number of stakeholders participating in the Open Government National Commission and, therefore, improve its inclusiveness and representativeness. The network could also play a key role in promoting open government principles and practices at the local level.
  • 4. Consider creating an Open State Commission with the representatives of the four powers with the aim of promoting the implementation of an open state through concrete actions. Due to the key role played by the office of the Ombudsman, Costa Rica could consider its inclusion in the Commission.
 
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