Access to Public Information, Privacy, Data Protection and Retention, Commercial Speech
Hashavim H.P.S. Business Data v. Directorate of Courts
Closed Contracts Expression
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The Constitutional Chamber of the Supreme Court dismissed an action to enforce constitutional rights (amparo) filed by the Espacio Público Civic Association against the refusal from the Office of the Comptroller General of the Republic to provide information about the salaries of public officials working at the institution. The Court based its decision on its analysis that the information was part of the officials’ realm of “economic privacy” and that the appellants had not shown their legitimate and sufficient interest in attaining information belonging to this realm of privacy.
The Espacio Público Civic Association (Espacio Público) is a non-governmental organization dedicated to the protection and advocacy of the right of freedom of expression and information in Venezuela. Espacio Público asked the Office of the Comptroller General of the Republic for information regarding the salary of the Comptroller General and the staff working at the institution. This request was denied, on the grounds that providing the requested information would involve “an invasion of the privacy of government officials, who are protected, like any citizen, by the right to honor and privacy.” (par. IV).
Espacio Público filed an action to enforce constitutional rights (amparo) against the decision to refuse access to the requested information. The Association alleged that, the information should be public because it is essential in order for society to exercise oversight of the manner in which the institution’s funds are used. The association argued that the contested decision disregards the right of access to information enshrined in Article 58 of the Constitution and in the ACHR.
The Court held that the requested information is protected pursuant to the government officials’ right to privacy, and particularly their right to “economic privacy.” [section IV, para. 21]. In the Court’s opinion, it would not be proportionate to accept an “invasion” of officials’ privacy of such “magnitude” for reasons of transparency in fiscal management. Accordingly, it decided to dismiss the appeal because, in its opinion, the alleged violation of the right of access to information had not occurred.
Judge Carmen Zuleta de Merchán delivered the opinion of the Constitutional Chamber of the Supreme Court.
In this case, the Constitutional Chamber had to determine whether information on the salaries received by officials at the Office of the Comptroller General of the Republic of Venezuela constitutes public information that must be provided to any citizen who requests it.
The Court began by indicating that there is no law in Venezuela that defines limits to the right to request information, set forth in Article 143 of the Constitution. Therefore, defining the scope of this right is the responsibility of judges. In this regard, it found that “given that there is no law specifically dealing with this matter, in order to ensure compliance with the limits to the exercise of the fundamental right to information, i) the party requesting the information must expressly state the reasons or purposes for which this party is requesting the information; and ii) the scope of the information requested must be proportionate to the utilization and use intended for the requested information.” (para. IV).
Specifically, with regard to public salaries, the Court found that in principle this information is part of officials’ realm of “economic privacy,” given that there is no law ordering them to be made public. The Court further stated that European constitutional case law has repeatedly declared that the decisive criteria for determining when economic data is private is whether they are directly related to the data subject’s private and family life. In this case, in the Court’s opinion, this condition was met. The Court stated that the desire to exercise oversight of the State’s fiscal management through a request for information on government officials’ salaries was not “proportionate” with “tolerating an invasion of the constitutional right to privacy” of officials. In this regard, it explained that the interference with the right to privacy was not justified, since the plaintiff did not demonstrate how the information requested – the salary of the Comptroller and other officials at the institution – would be useful in meeting the interests of transparency and oversight of the use of public funds.
Finally, citing comparative law, the Court applied the rule that private information is controlled by the data subject, and therefore it is “the official who is responsible for deciding, at his or her discretion, whether or not to provide information about him or herself.” (para. IV).
Based on the above, the Court found that the action to enforce constitutional rights was inadmissible because the Office of the Comptroller General had adequately justified its decision to maintain the secrecy of the requested information, and this decision did not violate any fundamental right.
Judge Rondón Haaz dissented from the majority opinion, arguing that information on government officials’ salaries is not part of their realm of privacy, but rather is public and falls within the scope of citizens’ right to information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment departs from the implicit premise that the Court’s task is not to ensure the multiplying effect of the right of access to information – enshrined in the Constitution and in international treaties ratified by Venezuela – but rather to expand the scope of limitations to this right. Although the judgment refers to comparative law that provides substantive and methodological criteria for prioritizing the principle of maximum disclosure, the Court uses these tools to attempt to justify restrictions on this right that are incompatible with international standards in this area.
In this regard, for example, the Court ignores the principles established by Inter-American legal doctrine and case law, according to which any limits to the right of access to information must be established by a law; without this, the primacy of the right of access must be presumed. On this matter, the Inter-American Court of Human Rights, in the case of Claude Reyes v. Chile, states that the “right of access to information should be governed by the ‘principle of maximum disclosure’” that “establishes the presumption that all information is accessible, subject to a limited system of exceptions.” Furthermore, the Venezuelan Court shifts to the petitioner the obligation to declare its interest and to demonstrate that such interest adequately justifies the alleged interference with the officials’ right to privacy. This burden of proof directly contradicts the Inter-American Court’s decision in the aforementioned case of Claude Reyes v. Chile, as well as reports by the Special Rapporteur for Freedom of Expression of the IACHR. For these reasons, the Rapporteur has stated that the Supreme Court’s judgment “ignores the principle of ‘maximum disclosure’ which must govern access to information held by the state.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Constitutional Chamber of the Supreme Court is the highest court in Venezuela.
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