Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Supreme Court of El Salvador held that information regarding the trips of high-ranking government officials was of a public nature. A Salvadorean citizen filed an amparo recourse against the Institute of Access to Public Information (IAIP) for refusing to provide information regarding the expenses on advertising campaigns, trips and protocol activities of the then-president of El Salvador, Carlos Funes Cartagena, between 2009 and 2014. On September 1, 2016, the Supreme Court of Justice of El Salvador ordered the IAIP and the President’s office to publish the information requested by the plaintiff.
On October 23, 2017, the Supreme Court, after receiving a request for clarification and compliance with the judgment, filed by a journalist and a citizen, reviewed the compliance to the ruling and concluded that the defendants had not fully complied with its orders since they had only published that which concerned the expenses of advertising campaigns.
In its decision, the Court clarified that the information at issue was related only to the official international trips made by the former President and his wife rather than the private trips they made since the plaintiff had not requested the latter. Furthermore, the Court ordered the Court of Accounts of the Republic to carry out an audit and submit the findings on the matters discussed in the amparo that had not been published by the defendants and ordered the delivery of the information requested by the journalist who participated in the proceeding, noting that judicial information was information of public access.
Herbert Danilo Vega Cruz filed an amparo against the Institute of Access to Public Information (IAIP), alleging the entity had violated his rights, and that of the citizens, to access information and to non-jurisdictional protection.
On September 1, 2016, the Supreme Court of Justice of El Salvador, through the Constitutional Chamber, granted the amparo, leaving without effect the IAIP Resolutions – dated December 18, 2014, and August 19, 2015- and ordered the Presidency of the Republic to publish on its website:
Furthermore, the Court urged the President’s Office to publish all information related to similar matters on its website and to prepare the information and documentation regarding similar issues so that when citizens request it, it be provided without any delays and qualms. Likewise, the Court advised the President’s Office to implement a system of identification and control of such information and instructed other public institutions to use analogous mechanisms to guarantee citizens full access to information.
During the compliance phase of the ruling, the President’s Office submitted a report indicating that it did not keep records regarding international travel expenses and stated that it had instructed public entities that from then on, they had to identify and preserve such information.
Matilde Rosales, an interested third party in the amparo, requested the Court to clarify whether: a) the international trips the President and his wife made- financed with public and private funds- were considered public information, and b) the order for the President’s Office to publish information on its website should also include the President’s private trips. Additionally, journalist Jackeline Cáceres requested copies of the reports from the Supreme Court.
As part of the process of verifying compliance and clarifying the judgment, the Supreme Court of Justice of El Salvador examined four issues. i) the nature of the information related to the private international travel of high-ranking public officials, ii) whether there was a duty to provide information not only on official international trips but also on private trips; iii) the state of compliance with the judgment, and iv) the scope of the right to access information in judicial processes.
Concerning the first issue, the Court pointed out that private travel of high-ranking public officials is of public interest, except for the data that is considered confidential by law. The Court noted that the publicity of such information allows monitoring the absences of these officials and ensures accountability and transparency. In the Court’s opinion, exercising this type of oversight through the right of access to information strengthens democracy.
Regarding the second issue, the Court specified that although the information on the President’s private international trips was public and should be made available, it could not order its publication since such information was beyond the scope of the case at issue. Therefore, under the principle of procedural consistency, the Court held that the President’s Office could not be burdened with disseminating such information.
Concerning the overall compliance with the decision, the Court noted that the President’s Office and the IAIP were still required to comply with their pending judicial commitments. The Court indicated that the obligation to publish the information and guarantee its access does not imply a systematized or processed delivery of the information; therefore, the administrative authorities comply with their constitutional responsibilities once they deliver or publish the information. Nevertheless, the Court remarked that disseminating information can be an obstacle to enjoying and exercising the right of access to information. Thus, the Court underscored the importance of centralizing and establishing jurisdiction for the dissemination of information was essential to guarantee the right to access information.
Finally, concerning the petition of journalist Jackeline Cáceres, the Court indicated that information regarding judicial proceedings had to be requested according to the Code of Civil and Commercial Procedure, not the provisions of the Law on Access to Public Information. Moreover, the Court noted that the nature of the information was public since there was no summary procedure.
Taking into consideration each of the issues analyzed, the Court:
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court, issued within the framework of a follow-up order, advances the understanding of the right of access to information in three aspects:
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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