Access to Public Information
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The Agency for Access to Public Information (Agencia de Acceso a la Información Pública) ordered the Ministry of Health to deliver information about mental health institutions to the Civil Association for Equality and Justice (ACIJ). ACIJ requested information from the Ministry of Health of Argentina regarding the existing mental health institutions operating in the country (i.e., amount of mental health institutions and people hospitalized in such institutions, etc.). The Ministry of Health did not comply with all of ACIJ’s requests because it considered that the information should be requested from other governmental areas and jurisdictions. The Agency held that the Ministry of Health failed to provide reasonable reasons to deny access to the information requested. The Agency also held that the Ministry of Health was obliged to provide the information requested by ACIJ because it was information related to public policies and that the lack of a complete response was an unjustified denial.
On February 5, 2018, the Civil Association for Equality and Justice (ACIJ) requested information from the Ministry of Health of Argentine on various issues related to mental health institutions operating in the country. Specifically, it requested information from 2011 to the present on the amount of existing mental health institutions, the amount of patients admitted in them, the amount of beds for patients, amount of deaths in such institutions, protocols for the confinement of persons and their rehabilitation, inspections, and evaluations of mental health institutions, sanctions applied to such institutions, sums of money that are reimbursed to social security entities, and alternatives other than the confinement of a person in a mental health institution.
After having filed two appeals to the Agency for Access to Public Information due to the Ministry of Health’s failure to provide a complete response to its request, on October 12, 2018, ACIJ lodged a third appeal because the government failed to respond to several of the questions posed in the original request. In particular, ACIJ considered that the Ministry of Health failed to provide information on four issues: the amount of existing mental health institutions, the amount of beds for people with mental health conditions and the percentage of beds occupied, the number of deaths in mental health institutions, and the amount of beds available.
The Agency for Access to Public Information had to decide whether the Ministry of Health’s latest response to ACIJ’s request for information on mental health institutions was complete or not, and whether it violated the plaintiff’s right of access to information.
The Ministry of Health argued that ACIJ should ask the information regarding mental health institutions to other governmental areas in the national and local jurisdictions. On the other hand, ACIJ claimed that the Ministry did not fully respond to all its queries. It argued that in the various responses provided by the Government, the information regarding the amount of mental health institutions, the amount of beds for the hospitalization of patients from 2011 to the present, and their occupancy rate were not answered. Specifically, ACIJ contended that the Ministry mentioned the existence of other governmental areas that have the requested information but has not given them due intervention in its claim. In addition, it claimed that no information was provided on the mental health institutions that are actually under national jurisdiction.
The Agency for Access to Public Information took into consideration that the Inter-American Juridical Committee held that “all information is accessible in principle. Access to information is a fundamental human right that establishes that every person may access information held by public bodies, subject only to a limited regime of exceptions (CJI/RES 147 – LXXIII-0/08)” [para. 6]. It also held that Article 1 of Law 27.275 establishes that “limitations to access must be interpreted in a restrictive manner, and in the event of a refusal to provide information, it must be well-structured, and the agency must demonstrate the validity of any restriction” [para. 9].
The Agency highlighted the existence of the “principle of facilitation” which implies that the parties bound by Law 27.275 must express whether a document or information is in their possession. The Agency also emphasized that the Inter-American Court of Human Rights held that the “State cannot rely on the lack of proof of the existence of the requested documents but, on the contrary, must justify the refusal to provide them, demonstrating that it has taken all measures within its power to prove that the requested information does not exist” (IACtHR, Gomes Lund et al (Guerrilla do Araguaia) v. Brazil, judgment 24/12/2010). Likewise, the Agency took into consideration the report of the Office of the Special Rapporteur for Freedom of Expression on “The Right of Access to Public Information in the Americas” (December 30, 2011). This report recognizes that the state “has the obligation to produce or capture the information it needs to fulfill its duties, as established by international, constitutional or legal norms” [para. 43].
Moreover, the Agency noted that Article 13 of Law 27.275 establishes that in cases in which a government authority rejects an access to information request, it must do so in a detailed reasoning by its highest authority. Further, the Agency held that according to Article 10 of Law 27.275 on Access to Public Information, a request of public information cannot be denied based on the fact that other areas of government should be involved. From this point of view, the Agency established that ACIJ’s appeal is justified because on the various occasions that the Ministry of Health was consulted, it failed to provide information on mental health institutions within the national jurisdiction, merely alleging that in order to obtain such information, other governmental areas should be involved.
The Agency stated that despite several requests from ACIJ, the “Ministry of Health kept absolute silent on the matter; at no time did it inform the applicant that other areas had been involved, nor did it state whether the requested information existed or if any of the exceptions on the disclosure of information applied to the case” [para. 33]. Taking this into consideration, the Agency concluded that the Ministry of Health violated Law 27.275 on access to public information. Specifically, the Agency held that Article 13 was violated. This article establishes that “the silence of the obligated subject, after the deadlines set forth in Article 11 of the law, as well as ambiguity, inaccuracy or incomplete delivery, shall be considered as an unjustified refusal to provide information” [para. 35]. According to these premises, the Agency held that “the lack of a complete response by the Ministry in relation to the four points that are the subject of this claim must be assimilated to an unjustified refusal to provide the requested information since it is not supported by any of the exceptions provided for in Article 8 of Law 27.275.” [para. 36].
In addition, the Agency held that the information related to the operation of mental health institutions is subsumed in the type of information that Argentina must provide, and that Law 27.275 was not respected because the Ministry of Health “did not check the existence of the information requested and explain the measures adopted to find it” [para. 44].
Consequently, it was resolved that the Ministry of Health violated the rules of Law 27.275 on access to public information and that ACIJ be given the requested information on February 5, 2018 within 10 days.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its decision, the Agency for Access to Public Information held that the Ministry of Health could not deny information regarding the operation of Mental Health institutions merely on the grounds that such information should be requested from other governmental areas or local jurisdictions. The Agency strengthened the right of access to public information by obliging the Government to give due intervention to all the necessary governmental areas in order to provide the petitioner with a complete answer regarding the operation of the country’s mental health institutions. The Agency also applied the Inter-American standards on access to public information developed by the Inter-American Court of Human Rights and the Inter-American Commission on Freedom of Expression.
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