Case Summary and Outcome

The Agency for Access to Public Information (AAIP) ordered Telefónica de Argentina SA (TASA), a phone company, to deliver information regarding its provision of fixed telephony and internet services in different polygons and the number of people who received these services, disaggregated by polygon. Sebastián Pilo, co-director of the Civil Association for Equality and Justice (ACIJ) requested the aforementioned information from Telefónica, who failed to respond. ACIJ lodged a claim before the AAIP, arguing that its right of access to information was breached. For the AAIP, Telefónica was obligated to provide the requested information since it is a company that provides public services, a matter of public interest. Although the AAIP ordered the delivery of the information requested by ACIJ, it also said that all personal data of users had to redacted. This decision was later upheld by the judiciary in the case of Civil Association for Equality and Justice v. Telefónica de Argentina S.A.

Facts

On February 26, 2019, the Civil Association for Equality and Justice (ACIJ) made an access to information request in which it asked Telefónica de Argentina SA (TASA) for a report regarding: 

“…. 1) Amount of users to whom it currently provides fixed telephony services within each of the polygons detailed below; 2) Amount of users to whom it currently provides Internet services within each of the polygons; 3) Whether the company currently offers fixed telephony service coverage to any new users who request it, disaggregating the information by polygon. […];4) If the company currently offers internet service coverage to any new users who request it” [p.2].

TASA did not respond to ACIJ’s request. On May 22, 2019, ACIJ filed a complaint before the AAIP, considering that its right of access to information was breached. Upon request by the AAIP, TASA explained that it did not respond to the access to information request because internet services are not a public service, thus it was not obligated to issue an answer.

Decision Overview

The Agency for Access to Public Information (AAIP) had to decide whether TASA’s decision, denying access to the information regarding the provision of fixed telephony and internet services, was justified.

The Agency started its argumentation by mentioning that TASA is a licensee company within the sector of Information and Communication Technologies (ICT), as defined in Article 6, paragraph g) of the Argentina Digital Law No. 27. 078. Therefore, pursuant to Article 1 of Law No. 27,078, its regulation and operation are matters of public interest. Furthermore, the AAIP noted that ICT users have the right to access all information regarding the provision and offering of these services, as enshrined in Article 59 (c) of Law No. 27,078.

In light of this legal framework, the Agency held that Telefónica was obligated by law to respond to access to information requests and that it should do so following the principle of maximum disclosure and transparency (i.e. with the highest degree of detail, through all possible channels and through accessible electronic and open formats that allow for easy processing).

The AAIP then referred to the case law issued by the Supreme Court of Justice of Argentina in the case of Rubén Héctor Giustiniani v. Y.P.F. S.A., Nov. 2015, to explain that access to information requests can be denied or rejected, if the authority manages to prove with sufficient specificity and detail that granting the request could harm a legitimately protected interest. 

Moreover, the Agency also referred to the Model Inter-American Law on Access to Public Information (AG/RES. 2607 (XL-O/10). According to it, people have the right to receive requested documents expeditiously. Similarly, The AAIP also said, following the precedent laid out in the case of Claude Reyes et al. v. Chile, that the State is obligated to provide requested information and justify, in a proper manner, any decision denying access to information requests. 

The Agency also mentioned that according to Resolution 2220 of September 3, 2012, issued by the National Communications Commission, the company is required by law to produce information in which it quantifies the provision of telephonic and internet services. 

The AAIP noted that since personal data from users could be present in the requested information, it was necessary to redact such information to avoid a violation of the Personal Data Law No. 25,326.

Taking this into consideration the AAIP concluded that TASA had the obligation to provide the information requested by the plaintiff, redacting any personal data there included, and thus ordered Telefónica to provide it within ten working days.