Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Constitutional Court of Colombia held that citizens’ right of access to information was violated when the National Police determined it would not provide requested information on the identity of the police agents who were present in the place and at the time that several crimes including a murder were perpetrated. The two citizens had filed an action to enforce their constitutional rights (acción de tutela) against the National Police. The Court concluded that the National Police possessed the requested information because two official memoranda in the court file certified this fact. Furthermore, the Court explained that public information did not stop being public only because it was evidence in criminal proceedings. Additionally, the Court considered the requested information did not endanger the integrity of the police agents or their families, since the events occurred in an area of the country that was not affected by serious security problems.
A citizen was kidnapped, tortured and later killed. On the day, time and place where the abduction took place, a security video recorded a police patrol passing through the area. Days later, the director of a human rights organization requested, from the General Directorate of the National Police, information on the name and the nature of the activities that were being carried out by the patrols that were passing through the place where the victim disappeared. She explained the information was requested with the purpose of being forwarded to the Inter-American Commission on Human Rights, an organization that was reviewing case involving the citizen’s kidnapping and death.
The National Police replied to the petitioner’s request and stated the information had been forwarded to the Office of the Attorney General, the entity that was investigating the crimes. Therefore, it recommended the petitioner to direct her request to the Office of the Attorney General “since the requested information was under legal reserve” because it was part of an investigation [p. 5].
The Attorney General’s Office replied to the request stating, “there is no information concerning the identity of the patrols that are recorded in the security cameras” [p. 4]. Based on that response, the petitioner filed an action to enforce constitutional rights (acción de tutela) against the National Police on the grounds that it had violated her right of petition, which had been denied by every instance.
Some time later, another citizen requested information on the name and nature of the activities of the patrol persons who were transiting through the area on the day and time of the crimes. Several months later, the police answered through the human rights organization which had requested the same information earlier, and said that the material had been forwarded to the Office of the Attorney General but that, in any case, “the photographic material lacked clarity, since it did not allow identification of the patrols, making it impossible to determine which agents were [there]” [p. 5].
In view of this situation, the second petitioner filed an action to enforce constitutional rights (acción de tutela) against the National Police so that it would provide the information. The court of first instance denied the petition. It considered the National Police had provided an answer to the petition and, in any event, that information was reserved since it was part of a judicial investigation. The petitioner appealed the decision.
The court of second instance upheld the ruling. It considered that if the plaintiff needed the information to resort to international justice, she should submit her request directly to the Office of the Attorney General.
The Constitutional Court, after finding the National Police was in possession of the information, decided to revoke the lower courts’ decision and grant access to the requested information.
The Constitutional Court had to determine whether the citizens’ right of access to information was violated when the National Police determined it would not provide the requested information on the identity of the police agents who were present in the place and at the time that several crimes were perpetrated.
The Court began by establishing the content of the right of access to information, based on the Constitution and various international instruments such as the American Convention on Human Rights (ACHR), the International Covenant on Civil and Political Rights and the Declaration of Principles on Freedom of Expression of the Inter-American Commission Human Rights. The Court stated every person has a fundamental human right to be provided with the public information they have previously requested or to receive a response to a specific request for information [p. 12]. The Court further stated, this right is guided by the principles of “maximum dissemination, publicity and transparency,” and so the State has “a government obligation to produce information, preserve and make it available to the interested public ex officio (on its own initiative)” [p. 13]. For the Court, this right’s importance is highlighted in cases that involve human rights violations, because it allows the satisfaction of victims’ right to truth and it supports the creation a historical memory for society.
However, the Court indicated this right could be subjected to legitimate restrictions, provided that: (i) they had been previously established by law; and (ii) they pursued a legitimate purpose “in light of the American Convention [on] Human Rights” such as “the rights or reputation of others, national security, public order, public health or morals” [p.13].
With respect to the national security standard, the Court considered that Principle 8 of the Lima Principles should be taken into account. This principle sets forth that “restrictions on the right of access for reasons of national security are only valid when they are directed at protecting the territorial integrity of the country and in exceptional circumstances of extreme violence that pose a real and imminent danger of collapse of the democratic order” [p. 13]. In addition to the two requirements above, the restriction must also fulfill the following requirements to be legitimate: (iii) the denial of access to information must be proportionate and necessary for attaining the legitimate purpose; (iv) the grounds for denial must be set forth in writing; and (v) “the limitation […] should be temporary or conditioned to the disappearance of its cause” [p. 13].
Furthermore, considering limitations placed upon the exercise of the right of access to information should be reasoned, the explanation or reasoning must explicitly reference the rule that justifies the reserve. In this regard, the Court stated, “generic or vague rules that restrict the right of access to information are not admissible because they could become a general authorization of sorts that enables the authorities to keep secret any information they, at their own discretion, deem appropriate. The law should establish with complete clarity and precision (i) the type of information that may be the object of reserve, (ii) the conditions under which such reserve may be sustained before citizens, (iii) the authorities that may invoke it and (iv) control systems that apply to the activities that have been subjected to reserve for this reason” [p. 15].
That said, when faced with requests involving the personal data of individuals belonging to the security forces, it is necessary to consider if the personal data in question endangers their personal safety or the personal safety of their families. The Court further argued, considering the violent circumstances facing the country at that time, it was possible that such data could be used for criminal purposes. Nevertheless, the institution had the obligation to certify the risk factors affecting the members of the public forces and explain the information would not be disclosed to protect the integrity of the agents or their families, always taking into consideration other options that would be less harmful to the citizen’s right of access to information.
Concerning the case under review, the Court concluded that the National Police possessed the requested information because two official memoranda in the court file certified this fact. Furthermore, the Court explained that public information did not stop being public only because it was evidence in criminal proceedings. Additionally, the Court considered the requested information did not endanger the integrity of the police agents or their families, since the events occurred in an area of the country that was not affected by serious security problems.
As a result, the Court decided to revoke the second instance judgment and ordered the institution to supply the information to the petitioners.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the scope of the right of access to public information because it declared that restrictions placed upon this right will only be legitimate when they are based on very strict legal causes that complement international standards, particularly when they relate to restrictive interpretations of the exceptions related to the protection of public order and national security.
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