Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Federal Administrative Chamber of Argentina upheld a lower court ruling ordering Telefónica de Argentina—a phone company—to disclose information regarding the provision of fixed telephony and internet service in slums and settlements in Buenos Aires, Argentina. On appeal, TASA argued that it was a private company and that the internet service was not a public service and therefore it was not obliged to provide such information. The Chamber upheld the lower court decision reasoning that the internet service was a public service and that private institutions that provide public services are obligated to properly answer access to information requests.
On February 26, 2019, the Civil Association for Equality and Justice (ACIJ) requested information from the company Telefónica de Argentina S.A (TASA). regarding the provision of fixed telephony and internet services in slums and settlements in Buenos Aires. Telefónica refrained from answering the request the first time. On a second occasion, it delivered incomplete and irrelevant information.
Unsatisfied with the response it got, the ACIJ filed a claim before the Agency for Access to Public Information (AAIP). On October 31, 2019, the AAIP ordered Telefónica to deliver the requested information within 10 days.
On August 19, 2021, a first-instance judge accepted an acción de amparo lodged by the Civil Association for Equality and Justice against Telefónica de Argentina S.A. seeking compliance with the decision issued by the AAIP, since the plaintiff considered that TASA did not comply with the order given by the AAIP.
On September 1, 2021, the amparo was granted. Telefónica filed an appeal against this decision before the Federal Administrative Chamber of Argentina. The company argued that it was not a public company—rather it was a private one—, that the data requested was confidential, and that the provision of the internet is not a public service.
The main issue that the Federal Contentious-Administrative Chamber had to decide upon was whether Telefónica—a privately owned company—was obliged to disclose information about the provision of internet and phone services in Buenos Aires, Argentina.
The Chamber first referred to the case law of the Supreme Court of Argentina in Decision 335:239, which stated that when regulating or overseeing institutions that exercise public functions, states must take into consideration both public and private institutions or companies. This means that private institutions are also obligated to deliver information regarding the public functions they fulfill.
Furthermore, the Chamber noted that Law 27.078 established that Information and Communication Technologies (ICT)—and the resources associated with them—are a matter of public interest. In turn, article 59, c, of the aforementioned law also established that users of ICT have the right to access information regarding the offer and provision of such services.
In light of this legal framework, the Chamber concluded that Telefónica provided a public service, and thus, it was obliged to provide clear, necessary, truthful, timely, sufficient, certain, and free information about the essential characteristics of its services.
Moreover, the Chamber also mentioned that Law 27.275, following the principle of maximum disclosure, established an in dubio pro petitor principle. This means that in access to information requests the law must be interpreted, in case of doubt, always in favor of the requester and expanding the scope of the right to information.
Hence, The Chamber rejected Telefonica’s appeal and upheld the lower court decision, which ordered the telephone company to deliver the information requested by the plaintiff.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression as it guarantees access to unjustifiably held information of public interest. The ruling explained that if a legal or natural person—privately owned or public—provides a public service, information on the provision of such service must be public. Additionally, it applied the in dubio pro petitor principle, which meant that the law must be interpreted, in case of doubt, in favor of the information requester.
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