Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Agency for Access to Public Information (AAIP) granted an access to information request regarding who benefited from export reimbursements in Patagonian ports during the period between 2012-2018. The Civil Association for Equality and Justice (ACIJ) submitted an access to information request before the Federal Public Revenue Administration (AFIP), requiring the aforementioned information. The AFIP answered the request by pointing out that between 2015-2016, 149 exporters received benefits. Later on, the AFIP explained that some information was confidential because of its private nature. The ACIJ filed a claim before the AAIP, arguing that the AFIP denied it access to the requested information, thus breaching its right of access to information. The Agency for Access to Public Information considered that the state’s denial was unjustified. The AAIP held that, although the AFIP invoked tax confidentiality, it failed to justify why the protection of private interests outweighed the public interest in accessing the requested information. For the AAIP, the refusal to an access to information request must be exceptional. The Agency concluded that the information requested should be made available to the interested party within ten (10) working days.
On February 19, 2018, the Civil Association for Equality and Justice (ACIJ) requested information regarding the reimbursements for exports in Patagonian ports, as provided by Law No. 23.018 and Decree No. 2229/15. Specifically, it requested disaggregated information during the period between 2012-2018 regarding how many were the beneficiaries of each expense; the individuals and legal entities that benefited from each expense, and the amount of benefit received by each of them; what amount and/or percentage each expense benefited each decile and/or quintile of the population. The ACIJ added that if the last information was unavailable, it requested any information related to “the incidence of each one of the tax expenditures, or with the socioeconomic profile of its beneficiaries” [p. 1]. The AFIP answered the request by saying that during the period between 2015-2016, 149 exporters received benefits. Additionally, it maintained that “regarding the amounts or percentages of the benefit to each decile and/or quintile of the population, it is reported that the AFIP does not have said calculation” [p. 2-3].
The ACIJ made an identical request for information on August 21, 2018, before the Ministry of Production, who answered, on October 2, 2018, that the Federal Public Revenue Administration was the competent authority to fulfill the request.
On November 7, 2018, the ACIJ submitted again, before the AFIP, an access to information request. On November 29, 2018, the AFIP answered stating that it would need an extension to fulfill the request.
Finally, on January 28, 2019, the authority decided to partially deny the request under the argument that the exception provided for in article 8, paragraph i) of Law No. 27.275 protected personal data, in accordance with Law No. 25.326.
On March 25, 2019, ACIJ filed a claim before the Agency for Access to Public Information (AAIP), arguing that the AFIP’s decision breached its right of access to information.
The Agency for Access to Public Information had to determine whether the decision to deny an access to information request —regarding who benefited from export reimbursements in Patagonian ports during the period between 2012-2018— based on the argument that such information can’t be disclosed in order to protect personal data, was correct.
During proceedings, the AFIP added that it denied the plaintiff’s request in order to protect the tax confidentiality of the persons who received benefits during the aforementioned periods.
The Agency started its argument by stating that the defendant’s justification —added during the proceedings— was extemporaneous and could not be used to justify the authority’s original decision since the applicant was not informed of it at the time.
Subsequently, the AAIP held that the AFIP’s decision to deny access to the requested information was unjustified. As enshrined in Article 13, Paragraph 3, of Law No. 27.275 —the AAIP noted—, the silence, ambiguity, inaccuracy, or incomplete delivery of information provided by an authority, is considered as an unjustified refusal to provide the information
Furthermore, the Agency referred to the Inter-American Model Law on Access to Public Information AG/RES. 2607 (XL-O/10), which requires authorities, who deny access to information, to properly and fully explain the reasons that justify such a decision.
The AAIP then analyzed the legal difference between personal data and sensitive data. According to Article 2 of Law 25.326, the first category refers to “information of any kind referring to certain or determinable natural or legal persons,” [p.4] while the second refers to those “…that reveal racial and ethnic origin, political opinions, religious, philosophical or moral convictions, trade union affiliation and information regarding health or sexual life” [p.4]. This difference is not minor since the latter category benefits from special protection due to the possibility of using this information with discriminatory intentions.
The Agency then explained that the requested information was about export refunds and tax benefits, which although cannot be considered sensitive data is still worthy of some degree of legal protection since the information referred to the assets of certain individuals and legal persons.
Nonetheless, the Agency took into account that tax exemptions and benefits contradict the general principle of equality in taxation. As such, information about these matters had a reduced expectation of privacy when it comes to disclosing the patrimonial data that justifies a different treatment. The AAIP noted that, in the case at hand, those who received a tax benefit delivered their information to the AFIP with full knowledge their information would be treated under the general principle of publicity of all the state’s acts of management.
Therefore, the Agency held that the expectation of privacy of the aforementioned personal data was not more important than the active transparency obligations that require the AFIP to openly disclose the management of its public resources.
The Agency then referred to the Inter-American Commission on Human Rights Report on Poverty and Human Rights in the Americas (2017), which highlights accountability, transparency, and access to information as fundamental principles that are fully applicable to tax policies. The report also underscored the active role that States must play by taking necessary measures to guarantee the dissemination of said policies.
The Agency also mentioned the case law of the Inter-American Court of Human Rights as set forth in Claude Reyes et al. v. Chile. According to this case, the State must abide by the principles of publicity and transparency when it comes to public administration and management. In turn, this allows the citizenry to exercise democratic control and oversight over the State’s actions, so that they can question, inquire and consider whether public functions are being adequately performed.
In light of the above, the Agency concluded that the requested information was of public interest, which entailed that the decision to deny it, issued by the AFIP, was incorrect, even when disclosing the required information could affect private interests. Additionally, the Agency also considered that the AFIP failed to properly explain under which exemption it decided to conceal the information since the authority gave vague and unsubstantiated justifications in its original answer. Consequently, since the decision to keep the information confidential lacked legal support, the AAI ordered the AFIP to deliver the requested information within 10 working days.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded freedom of expression as it guaranteed access to government-held information of public interest. In this decision, the AAIP upheld international standards regarding access to information and concluded that even personal data can be disclosed when it entails a public interest — for example, information on tax exemptions and benefits.
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.
This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.
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