Case Summary and Outcome

The Supreme Court of El Salvador ordered the Legislative Assembly to deliver information regarding the purchase of specific goods (artworks, Christmas presents, and beverages), with their respective invoices, and the internal processes that led to their acquisition. The Legislative Assembly had previously rejected a formal access to information request made by a citizen, arguing that the documents were confidential. The Court argued that the decision to classify the documents was not properly justified since the information requested was public by nature.

Facts

Mr. José Roberto Burgos submitted an access to information request to the Public Information Office at El Salvador’s Legislative Assembly. He demanded: (i) a copy of the Board of Directors’ resolutions regarding the decision to purchase works of art, Christmas presents, and alcoholic beverages in 2012; (ii) a list of the purchased goods, with copies of their invoices; and (iii) to be informed about the origin of the funds used for the acquisition of these goods.

The Legislative Assembly responded that the Board’s resolutions were classified as confidential information and that there were no lists of acquired goods. The entity did not address the last request about the origin of the funds.

The plaintiff filed a claim (amparo action). He considered his right of access to public information was violated due to the lack of constitutional motivation and omissions in the responses from the Legislative Assembly.

The Supreme Court of El Salvador, as a precautionary measure, ordered the Legislative Assembly to deliver the requested information to the plaintiff. However, the public office repeated that the agreements of the Board of Directors were confidential. In addition, it informed that while the requested list of goods did not exist, an inventory on the works of art acquired since 1996 began to be prepared, as a result of the petitioner’s request. Finally, in relation to the funds used for the acquisition of the goods, the Legislative Assembly highlighted that the information was contained in the respective Board of Directors resolutions, which were confidential.

Decision Overview

The Supreme Court of El Salvador had to analyze whether the Legislative Assembly violated the right of access to public information of Mr. Burgos by: (i) refusing to deliver a copy of the Board of Directors’ resolutions which authorized the purchase of works of art, Christmas gifts, and alcoholic beverages; (ii) not providing the plaintiff with a list of the referred goods, together with their invoices; and (iii) not responding to the plaintiff’s request regarding the origin of the funds used to purchase the goods.

In the first place, the Court found that the plaintiff had standing to file the claim, due to his general interest as a taxpayer. The Court explained that it is not required to demonstrate a particular interest different from knowing how public functions are exercised or how public spending is managed.

The Court highlighted that the right of access to information creates a duty on public officials to respond to the requests. It also recalled that freedom of expression allows everyone to express and disseminate their thoughts and that one of the prerequisites for its exercise is freedom of information, for example, the right to investigate, seek and receive public or private information that is of public interest. In this sense, the Court stated that the right of access to public information has two manifestations, one consisting of freely communicating information, and, the other, in accessing public information. Regarding the latter, it explained that it is mainly materialized in the constitutional protection of the right to seek and demand information from public authorities and from any entity or person that administers public resources or executes acts of the administration.

The Court held that, in accordance with the Law of Access to Public Information (LAIP), the principles of timeliness, transparency, and equality of conditions must guide the right of access to public information; the persons who exercise this right must have at their disposal fast, simple and short procedures for the materialization of their right. The Court further explained the scenarios in which a violation of this right is configured. In its opinion, the fundamental right of access to information is violated when: “(i) in an unjustified or discriminatory manner, public information generated, administered or in charge of the requested entity is denied or omitted to be delivered to whoever requires it; (ii) the authority provides the requested data incompletely or after the legal deadline; (iii) the procedures established to provide the information are complex, excessively burdensome or generate unreasonable obstacles; (iv) the public officer or entity to whom the request is erroneously addressed fails to indicate the interested party which institution is in charge of the requested data” [p.6]. 

The Court recalled that a document cannot be classified as confidential without a constitutional basis to support this decision. In this regard, it pointed out that the inclusion in a public document of elements that are classified by law as confidential, for example, personal names, is not enough for the document to be classified as confidential. The confidentiality of personal names is intended to protect information that individuals provide to the State, but not to hide the persons who make decisions within the state.

To analyze the Legislative Assembly’s first argument, regarding the confidentiality of the Board’s resolutions, the Court recalled that access to information may be restricted only in two cases: (i) when the public information is expressly and temporarily restricted for reasons of general interest, and (ii) when the information is of private origin and is classified as confidential to protect personal interests.

The Court considered that the resolutions should not be classified as confidential because, firstly, the documents only contained the names of the public officials who made the decisions, and, secondly, because even if such resolutions had confidential information, there is a duty of the administration to prepare public versions of documents that have classified information.

Regarding the Legislative Assembly’s second argument, which is, that the list of purchased goods did not exist, the Court analyzed the documents submitted by the public office (in compliance with the precautionary measure) and found that the information was indeed within the institution. In addition, it criticized the Legislative Assembly for not taking the necessary steps to locate the required information.

The Court considered that the Legislative Assembly also violated the plaintiff’s right of access to information by not answering his third request, concerning the origin of the funds used for the acquisition of the goods. 

To conclude, the Court held that the declaration of confidentiality was illegitimate and ordered the Board of Directors of the Legislative Assembly to disclose a public version of the resolutions containing the decisions to acquire the aforementioned goods and the information about the origin of the funds for their purchase. Additionally, it stated that the plaintiff must be provided with a list of the works of art, Christmas gifts, and alcoholic beverages acquired by the Board of Directors since it was proven that the information did exist.