Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The National Institute of Social Services for Retirees and Pensioners of Argentina (Instituto Nacional de Servicios Sociales para jubilados y pensionados de Argentina, the Institute) denied the Association for Civil Rights (Asociación por los Derechos Civiles de Argentina, ADC) access to information on the Institute’s advertising budget spent in 2009. The trial judge granted access to the information; the Supreme Court upheld the ruling and ordered the Institute to deliver, in a detailed and complete fashion, all of the requested information.
The Association for Civil Rights of Argentina (Asociación por los Derechos Civiles de Argentina, ADC) requested the National Institute of Social Services for Retirees and Pensioners (Instituto Nacional de Servicios Sociales para jubilados y pensionados de Argentina) information on the Institute’s budget for institutional advertising for the months of May and June 2009, including the type of campaign corresponding to each advertisement and the advertising agency or intermediary through which the advertising medium was contracted. The Institute refused to provide this information. The ADC filed an action to enforce constitutional rights (amparo) to protect its constitutional right of access to public information.
The trial judge granted the action to enforce constitutional rights and ordered the defendant to provide the requested information within ten days. The defendant appealed the decision, arguing that it had no obligation to provide the information because it was not a government body subject to the Access to Information Rules, and claiming that an action to enforce constitutional rights was not the appropriate procedural remedy for the matter. Meanwhile, it provided the requested material in incomplete form. The appeals judge rejected the appeal, upheld the judgment, and ordered the Institute to provide full and complete information. The defendant then filed an extraordinary appeal against this ruling. The Supreme Court heard the extraordinary appeal and upheld the previous two rulings.
The Court had to decide two issues. First, whether the National Institute of Social Services for Retirees and Pensioners was required to provide detailed, disaggregated information on its budget spent on advertising, despite being a private entity that performs public functions. Secondly, it had to decide whether an action to enforce constitutional rights was the appropriate procedural remedy for demanding the right of access to information.
According to the Court, the Institute had the obligation to provide the information on institutional advertising in a complete fashion, because it is governed by existing regulations on access to information despite not being a public entity. In the opinion of the Court, even though the defendant was not a government body, international case law has established that all private entities exercising public functions or utilizing public funds are required to guarantee the right of access to information. In this regard, the Court stated: “[I]n terms of legal standing, it should be noted that for States to fulfill their general obligation of harmonizing their domestic legislation with the American Convention [with regard to the right of access to information], they must guarantee this right not only in the strictly administrative sphere of institutions connected to the Executive Branch, but for all entities representing public authority. In this respect, the [Inter-American] Court’s earlier decisions allow us to assert that, in regulating and supervising institutions performing public functions, States must take into account both public and private entities performing these functions (IACtHR, Case of Ximenes Lopez, judgment of July 2006. Series C. No. 149, paragraphs 141, 80, and 90)” [p. 14].
Moreover, the Court explained that access to information held by the State consists of the right of every person, whether an individual or a legal entity, to know how their government leaders and public officials are performing and are managing the government budget, which is everyone’s budget. In this case, the Institute must be regarded as an entity subject to the right of access to information, because it has received grants or contributions from the government and it performs public functions. The Court cited the principle of maximum disclosure, which establishes the presumption that all information from entities that perform public functions or utilize public funds must be accessible, with a limited system of exceptions. According to the Court, public documents are precisely documents that belong to all, not to the State.
With respect to the action to enforce constitutional rights as a mechanism to demand the right of access, the Court recalled that the Inter-American Commission of Human Rights has expressed the need for a simple, fast, and effective remedy to ensure access to information. In this regard, under Argentinian law the action to enforce constitutional rights is the appropriate remedy to make this kind of claim, because it is the remedy used to quickly, easily, and effectively protect constitutional rights.
It is important to mention that for the Court, the right to freedom of thought and expression includes the freedom to seek, receive and impart information, and therefore, it is not necessary to prove a special individual right or legitimate interest in the request for information. Institutions may only refuse to provide information if they produce a resolution proving that the information does not exist or is included within one of the exceptions provided for in Article 13 of the American Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court makes a significant effort for its judgment to reflect international standards and case law on freedom of expression. In particular, it focuses on the case of Claude Reyes v. Chile, applying the legal doctrine established by such judgment to its conclusions in the case under review. It explains that international standards have established that any entity that performs public functions or receives any kind of contributions from public funds must guarantee access to its documents. The Court also cited multiple international law texts explaining that there must be an effective and simple mechanism for guaranteeing access to information, and used this doctrine to show that an action to enforce constitutional rights is a valid manner to request the protection of the right of access to information.
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 Supreme Court of Justice is the highest court in Argentina and its judgments are binding.
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