Access to Public Information
Bubon v. Russia
Closed Expands Expression
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The Supreme Court of the Province of Buenos Aires in Argentina protected the Association for Civil Rights’ right to access public information. The Court ordered the General Directorate of Culture and Education to provide the information requested —which was originally denied by the aforementioned authority—, regarding the number of days that students from different schools did not have classes due to the absence of teaching personnel. According to the Court, the Directorate failed to justify why it failed to respond to the plaintiff’s request and denied the request.
The Association for Civil Rights of Argentina (hereinafter ADC) requested the General Directorate of Culture and Education to provide information on the number of days that students in certain schools in the country did not have classes due to the absence of teachers during the school term. The public authority did not respond to the request.
Due to a lack of response from the public authority, ADC filed an amparo action to protect its right to access public information. The General Directorate of Culture and Education responded to the amparo action indicating that the data requested by the plaintiff was in the process of being updated, which had prevented it from responding to the request.
The first and second instance judges decided not to protect ADC’s right of access to information. According to them, the information requested by the plaintiff was being updated, which entailed compiling the data of 36 educational establishments, a task that required more time than that allowed by law to respond to requests for access to information.
In light of this situation, ADC filed an extraordinary appeal of inapplicability of the law. According to the Association, the second instance judge, in their decision, established an uncertain deadline for responding to the request for access to information – since they argued that providing the requested data depended on the public authority’s ability to obtain it and its difficulty. Secondly, the plaintiff stated that public institutions are obligated to respond to access to information requests. Therefore, if the defendant had any difficulty in collecting the requested data, it was their duty to inform the applicant in the response and not during the judicial process.
The Supreme Court of the Province of Buenos Aires decided to uphold the right of the ADC. In its opinion, public authorities have the obligation to respond to access to information requests and to inform, when the request is denied, the legitimate reasons that justify the decision.
The Court had to decide whether the right of access to information of a legal person was violated, due to the lack of response by a public authority to a request asking for the number of days that students of certain schools in the country did not have classes due to the absence of teaching personnel during the school term.
The judge in charge of the case, who was joined by the majority of the Court, stated that the right of access to information is indispensable for a democratic society. This right allows citizens to hold their representatives accountable, a fundamental condition for the functioning of the state. The judge argued that, according to the Constitution, all persons are entitled to the right of access to public information, which is in line with the standards enshrined in Article 13 of the American Convention on Human Rights, Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant on Civil and Political Rights.
For the judge, the proper exercise of this right “contributes to the transparency of public administration, strengthens trust between citizens and the state, enables the control of public management, and encourages the efficiency and effectiveness of the administration. While opacity and extreme secrecy–which are at odds with these principles–bring forth dysfunctionalities that are incompatible with the rule of law” [p. 18]. The Court also declared that, in addition to being a fundamental right in itself, the right of access to information is indispensable for guaranteeing the right to freedom of expression. In support of this point, it cited the Claude Reyes v. Chile judgment of the Inter-American Court of Human Rights.
According to the Court, although there is a law that states that whoever requests public information must state a legitimate interest, that law must be interpreted in conjunction with the National Constitution and the international treaties ratified by the Argentine State. Taking this into account, the correct interpretation of this law “grants any person access to administrative documents of a public nature…’without the need to assert any basis or cause or accredit any right or interest’” [p. 19].
When the public authority considers that the requested information cannot be delivered, it is responsible for explaining, in a clear and concrete manner, the reasons for the refusal. It is presumed that the information controlled by public authorities is of public nature. Therefore, when for some legitimate reason the information cannot be delivered, the entity has the burden of proving the reasons why the presumption of publicity does not apply to the specific case. In support of this point, the Court cited the 2004 Annual Report of the Office of the Rapporteur for Freedom of Expression.
Regarding the specific case, the Court noted that the respondent violated the plaintiff’s right of access to information “as the administrative authority plainly and simply [refused] to respond to the request for information and failed to explain the reasons that justified a longer period of time to provide the response” [p. 20]. The Court stated that existing laws regulate this issue and are clear on the deadline for authorities to respond to access to information requests (30 working days). Likewise, the law also establishes an extension of 10 days in cases where the public authority is in a situation that hinders the delivery of the information, as long as the applicant is informed of this. Therefore, according to the Court, it was unacceptable for the General Directorate of Culture and Education to simply not respond to the request and argue that the data was being updated and that processing the request in such a short period of time was too time-consuming.
Thus, the Court decided to revoke the second instance’s decision and to protect the plaintiff’s right of access to information. It ordered the General Directorate of Culture and Education to provide the information requested by the plaintiff within 15 days.
Judge Genoud disagreed with the majority decision. In his opinion, since the data requested by the plaintiff was being updated, the authority “was not obliged to explicitly mention the exceptional circumstances that prevented it from providing the information, because the reasons why the provision of such information required a longer processing time were not exceptional but derived from the content of the request itself. The deadlines set forth in Article 14 of Annex I of Decree 2549/2004 [the law that regulates the issue of deadlines on the right of access to information] refer to existing administrative documents and not to those that require processing as in the instant case” [p. 8]. According to the judge, if the plaintiff needed the information “urgently,” they should have conveyed so to the administrative authority.
Judges Negri and Pettigiani joined Judge Genoud’s arguments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the scope of the right of freedom of expression and access to information insofar as it establishes that whoever requests information of a public nature need not state any interest before the administrative authority that controls it. It also establishes that administrative authorities must justify why they are unable to provide the requested information, and in such cases, they must inform the applicants of this situation.
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.
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