Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The Peruvian Constitutional Tribunal held that senior public officials must disclose asset declarations concerning their income and other benefits paid by the public sector, as well as their real estate interests and movable property recorded in a public register. The Court noted that under the Constitution unlawful enrichment is a crime, and that this gave the fight against corruption a constitutional dimension. However, the Court also recognized the “high levels of organized crime in the country” and ruled that in order to protect officials’ privacy, information on officials’ income derived from private sources need not be disclosed.
This case analysis was contributed by Right2Info.org.
In December 2003, the Peruvian organization Press and Society Institute (IPYS) requested access to the asset declarations of the minister and deputy minister of the Ministry of Transportation and Telecommunications. The Ministry denied access to the full asset declarations, relying on a June 2001 executive decree, which stated that only a brief summary of the declarations should be made public and that the detailed breakdown of the data provided by the officials should remain confidential.
IPYS filed legal proceedings, and the First instance and Appellate Courts found in favour of the Ministry on the ground that the requested information was private. In June 2007, IPYS lodged a constitutional complaint arguing that public officials have less privacy rights than ordinary citizens when it comes to their financial assets, and provided evidence that other ministries had provided access to full asset declarations.
The Constitutional Tribunal held that detailed asset declaration information of senior officials must be disclosed with respect to the income and other benefits paid by the public sector. The Tribunal also held that the officials’ real estate interests and movable property which are recorded in a public register must be disclosed. The Tribunal noted that all other detailed data (private sector income; property not recorded; savings, deposits and investments; debts and obligations) should not be disclosed.
The Tribunal recognized that the fight against corruption has a constitutional dimension, based on article 39 (public officials are servants of the nation) and article 41 (obligation to declare assets, unlawful enrichment is a crime) of the Constitution. However, it acknowledged that officials’ income derived from private sources – such as bank account holdings and investments – raise issues of the right to privacy and of personal security “given the high levels of organized crime in the country”. The Tribunal held that, given that all detailed asset declarations are made available to the national audit agency and a summary to the public, it is not strictly necessary for all details to be made fully public.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Constitutional Tribunal ruled that there should be access to information related to public officials’ public income, it did indicate that information related to income from private sources should not be publicly available.
Case significance refers to how influential the case is and how its significance changes over time.
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