Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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The Supreme Court of Argentina ordered the State to provide information requested from the Ministry of Social Development (Ministerio de Desarrollo Social) by the The Center for the Implementation of Public Policies Promoting Equity and Growth (Centro de Implementación de Políticas Públicas para la Equidad y el Crecimiento, CIPPEC) namely information regarding the public assistance that had been provided to legal entities and individuals in 2006 and 2007; this request was denied. The Supreme Court ordered the State to provide the requested information on the ground that information regarding the recipients of public assistance and the content of these programs is not sensitive information, but rather information of public interest that facilitates scrutiny of the way in which authorities use public funds.
On July 1st, 2008 the Center for the Implementation of Public Policies Promoting Equity and Growth (Centro de Implementación de Políticas Públicas para la Equidad y el Crecimiento, CIPPEC) asked the Ministry of Social Development (Ministerio de Desarrollo Social) to provide it with access to: (i) lists of the individuals receiving public assistance; (ii) information on the social programs providing benefits to legal entities in 2006 and 2007; and (iii) information on the territorial scope of the benefits and the people and organizations involved in the process of providing benefits, as well as the intermediaries that provide the plans for these social programs. In addition, it asked the Ministry to put in place the mechanisms needed to create a transparency and information policy regarding the management of social programs administered in 2006 and 2007.
The request was denied, leading the Center to file an action to enforce constitutional rights (amparo), which was granted in the second instance. That judgment ordered the Ministry of Social Development to provide the requested information, whereupon the defendant filed an appeal against the judgment before the Supreme Court. In the view of the Ministry of Social Development, identifying the recipients of public assistance would infringe on their privacy, since participation in these programs constitutes sensitive information.
The Supreme Court, in a judgment on March 26, 2014, upheld the decision issued in the second instance, because it considered that the information regarding recipients of public assistance and the nature of these programs does not contain sensitive data, and that disseminating such information does not violate the rights to privacy or honor. According to the Court, public knowledge of this information facilitates society’s of the way in which the State uses public funds.
The Court had to decide whether access to information on recipients of public assistance provided by the State constitutes an exception to the right of access to information, given the implications for the right to privacy and the fact that the disclosure thereof could affect other rights; or whether the public has a right of access to such information.
For the Supreme Court, information regarding recipients of public assistance provided by the State must be made public, given that this information is not sensitive and the disclosure thereof would not undermine an individuals’ honor or privacy. On the contrary, the disclosure of this information facilitates society’s oversight of the functioning of the State.
To support this argument, the Court began by reaffirming the importance of freedom of information and identified it as a fundamental human right based on United Nations General Assembly resolutions and Article 19 of the ICCPR. It also referred to resolutions of the General Assembly of the Organization of American States and the Declaration of Principles of the IACmHR. The Supreme Court also referred to the IACtHR judgment in the case of Claude Reyes et al v. Chile, regarding the “fundamental nature” of the right of access to information “in its dual role, as an individual right of every person as established by the word ‘seek,’ and as a positive obligation of States to guarantee the right to ‘receive’ the requested information”. [p. 9].
The Supreme Court went on to state that the right of access to public information ensures broad legal standing for persons wishing to exercise this right, because the person requesting the information need not have a special interest in obtaining it, as this information does not belong to the State but rather to the public. In this regard, the Court noted that although the case at hand deals with the personal information of recipients of public assistance, this information is part of public administration and is of interest to the public. Therefore, the petitioner may not be required to demonstrate an interest in obtaining the information. Furthermore, the Court explains why it would not be appropriate to require special legal standing to exercise the right of access to public information, by citing the Rules on Access to Public Information for the National Executive Branch (Reglamento de Acceso a la Información Pública para el Poder Ejecutivo Nacional) and several international instruments that recognize every person’s right of access to public information, without the need to justify a particular interest.
After addressing the issue of legal standing, the Court noted that in accordance with the General Rules on Access to Public Information for the National Executive Branch (Decree No. 1172, 2003, Appendix VII, Art. 2) public institutions may only refuse to provide the required information when the law so provides or, for example, in the case of sensitive personal data. On this point, the Court recalled that in accordance with the Protection of Personal Data Act (Law No. 25326 of 2000, Art. 2) sensitive personal data is that which reveals “racial and ethnic origin, political opinions, religious, philosophical, or moral beliefs, trade union membership, and information concerning health or sex life”. [p.16].
Therefore, the Court concluded that since the lists do not contain such information in this case, the State may not invoke protection of the privacy of public assistance recipients in order to refuse to provide the information. In addition, the Court argued that it is unacceptable for the State to refuse to provide the information on the ground that although it is not sensitive, it could become sensitive due to the context in which it is requested. First, because in dealing with legal entities and information relating to the territorial scope of the programs and the amount of the payments, there is no data involving privacy and honor to be protected. Second, because with respect to individuals, the Ministry is ignoring the fact that the requested information constitutes personal data but not sensitive data; the limit to the protection of individuals’ right to privacy lies in this distinction.
Although the reasons given by the Ministry did not constitute valid grounds for denying the release of the information, the Court then turned to analyzing whether there are any constitutional grounds for the refusal in light of the principle of reasonableness. In this regard, it found that in this case, the request for information was not intended to intrude into the private lives of the recipients of public assistance, and thus, the principle of maximum disclosure should prevail. This is necessary to carry out social oversight of the functioning of the State, particularly with regard to the use of public funds. The Supreme Court cited here the Model Inter-American Law on Access to Information, which notes in Article 11 that a list of public assistance provided by the State is essential information that must be disseminated by government authorities.
Finally, the Court showed that different government institutions have adopted contradictory positions on the scope of the right of access to information. Therefore, it argued that the legislature must issue general guidelines to ensure the realization of this right and provide legal certainty with respect to the exercise thereof. The Court warned that the State must promptly pass a law that guarantees the right to information, upholds international standards, and enforces the principle of reasonableness. The Court’s arguments regarding the State’s duty to enact a law on access to information were based on recommendations in this regard issued by the General Assembly of the OAS (AG/re. 2811 (XLIII-0/13)) and by some United Nations member States (A/HRC/22/4 Distr. General; A/HRC/DEC/22/102).
The Court considered that a society’s commitment to the weakest groups in society is strengthened by transparency in handling information on the State’s social policies, and that this commitment is weakened when the authorities responsible for such information show reluctance and a lack of transparency.
The judges Highton, Petracchi, and Argibay agreed with the arguments presented in the judgment, adding that the defendant’s actions violated the principle of maximum disclosure. They also noted that the defendant justified the breach of its duty to provide the information by contriving supposedly altruistic exceptions.
 Some of the instruments cited were the Inter-American Model Law on Access to Public Information, approved by the OAS General Assembly; Recommendations on Access to Information prepared by the Committee on Juridical and Political Affairs of the OAS Permanent Council; and the Inter-American Convention against Corruption.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the Supreme Court applies international laws and standards guaranteeing the disclosure of information regarding recipients of public assistance and social program payments. Yet beyond that, the impact of the decision lies in the fact that the Court emphasizes the importance of the right to information on the use of public funds and harmonizes it with the interests of public assistance recipients. The Court clearly explains that, contrary to the arguments presented by the State, transparency is the principle that allows public assistance to be effectively delivered, while secrecy contributes to inefficiency, ineffectiveness, and even corruption in the use of public funds.
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 decisions are binding.
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