Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
In Progress Expands Expression
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The Center for Investigative Journalism submitted a writ of mandamus against the Government of Puerto Rico and the Government Development Bank requesting access to information regarding the identities of the hedge fund companies that bought bonds from the government, and the identities of the members of the Ad Hoc Committee. The state refused because the information did not constitute public information and because they did not have information about the identities of the hedge fund companies. The Court of Appeals of Puerto Rico reversed the lower court’s decision and determined that the information does in fact constitute public information. The court ordered the lower court to conduct an evidentiary hearing to determine which documents the appellants could examine.
The Center for Investigative Journalism (Centro de Periodismo Investigative or “CPI”) is an independent and non-profit entity, which encourages and advocates for the right to access to information through investigative journalism, education and the promotion of transparency in the private and public sector. The CPI, alongside one of its journalists, requested detailed information regarding (1) the identity of the hedge fund companies who obtained state bonds in March 2014; (2) the amount of bonds that each company acquired; (3) the proposal sent to the Governor of Puerto Rico by the Ad Hoc Executive Committee of Bondholders (Ad Hoc Committee); (4) identities of each member of the Ad Hoc Committee and (5) the entirety of economist Anne Kruger’s report concerning the economic and fiscal situation of Puerto Rico. The state and the Government Development Bank (Banco Gubernamental de Fomento or “GDB”) asserted that the government did not actively seek to sell its bonds as neither the government nor the GDB were directly involved in the secondary market. The state sold its bonds in the primary market to Barclays, Inc., and they alleged that only Barclays must have information on the identities of the investors who bought the bonds in the secondary market.
The First Instance court determined that (1) the information requested by the appellants did not constitute a public document as defined by the Law of Administration of Public Documents; (2) that it was not demonstrated that the requested information was in the state’s possession and that the information is easily disclosable, pursuant to the right of access to information; and (3) the information is possessed by a third party and not within the control of the GDB. The CPI submitted a writ of mandamus in the First Instance court against the Governor of Puerto Rico and the President of the GDB.
Judge Sigfrido Steidel Figueroa delivered the opinion of the Puerto Rico Court of Appeals.
The main issue before the court was whether the information requested by the CPI constituted public information. Specifically, the court considered whether the information surrounding the composition of the Ad Hoc Committee and the identities of the hedge fund companies constituted public information in the hands of the state. The court also discussed the contours of what constitutes public information in Puerto Rico. The court concluded that the information was in fact public information. Judge Steidel also ordered the lower court to conduct an evidentiary hearing in which the state would have to demonstrate the detrimental effect of revealing the identities of the hedge fund companies and of the members of the Ad Hoc Committee. The proposal sent to the Governor and Krueger’s report were made available to the appellants.
The Court first considered the contours of what constitutes public information and the right of access to information in Puerto Rico. Judge Steidel highlighted the constitutional status of the right of access to information, its relation with the right to freedom of expression and its importance in the democratic processes. The judge furthered that the right of access to information is not absolute and that the Legislative Assembly can limit its scope if it deems that it affects a criminal investigation or other public security matters. The court established that, to accept access to information, it must determine (1) whether the information is public; and (2) whether a law prohibits access to the requested information.
The court readily explained what constituted a public document. According to Article 1 of the Administration of Documents Law, a public document is every document originated, conserved or received in any government agency or that pertains to public management. [p. 9]. Moreover, it implicated this definition to its definition of a document, which includes any informative material regardless its form or physical characteristics. [p. 9]. Judge Steidel further found that when a document falls within the scope of these definitions, the common citizen has a right of access to the information in the document. However, there are certain exceptions in which the state can refuse to grant the right of access: 1) when a law expressly prohibits it; 2) when the communication is prohibited by one of the evidentiary privileges; 3) when the revealed information could harm the rights of a third person; 4) when the information concerns the identity of an informant; and 5) official information according to the Rules of Evidence. According to Judge Steidel, if the state refuses to provide the requested public information, it must justify its position in accordance with one of these exceptions.
The court established that neither the state nor the GDB alleged that the information was confidential, protected by an evidentiary privilege or that its disclosure could hurt the rights of a third party. The court did not agree with the state’s stance that a public document has to be exclusively tangible or in paper form. [p. 18]. The court considered that the physical condition of a public document cannot impede a citizen from exercising his or her right of access to the information in the document. [p. 18].
Judge Steidel then determined that the composition of the Ad Hoc Committee, the identities of the hedge fund companies, and the terms and conditions of the final governmental transaction are all public information open to all interested citizens. [p. 20]. Moreover, Judge Steidel deemed that the requested information pertains to matters of public management and governmental functions that concern not only the media, but all the members of the Puerto Rican society. According to the court, the GDB alleged that they only have information regarding the companies who bought the bonds after the March 2014 emission in the primary market, but not in the secondary market because the government does not participate in that market. The court, however, agreed with the appellants, because the “hiring of a third party in charge of the distribution and selling of the bonds issued on March 2014 does not eliminate the fact that the requested information is of a public nature”. [p. 24]. The court went on to say that the government cannot disassociate itself from the transactions that Barclays and the other companies made as part of the initial transaction. More importantly, the subsequent distribution and selling that Barclays and the other companies make in the secondary market must be in accordance with its prior agreement with the government of Puerto Rico. [p. 24].
Finally, Judge Steidel ordered the First Instance Court to request an evidentiary hearing in which the state will have the opportunity to demonstrate that it constitutes a heavy burden to reveal the information requested by the appellants. [p. 31]. The First Instance Court, according to Steidel, must also examine the documents concerning the terms and conditions of the final government transaction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it determines that the requested information is public. The court affirmed the importance of the right of access to information and its relation to the right to freedom of expression. The court also reiterated the definition of a public document as the government tried to establish that a public document must be in paper form exclusively. This judgment was issued in the midst of the Puerto Rican financial crisis, and it remains to be seen how the First Instance Court now grapples with the evidentiary hearing as ordered by the Court of Appeals.
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 Court of Appeals of Puerto Rico can review decisions of the First Instance Court. Its decisions can be subsequently appealed to the Supreme Court. However, the judgments of the Court of Appeals are binding upon the First Instance Court.
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