Case Summary and Outcome

The Constitutional Court of Colombia held that the draft Law on Transparency and Access to Public Information was in accordance with the local Constitution and international human rights law standards. In an extensive judgment, the Court reflected on the main issues of the right of access to public information. For example, it reaffirmed that restrictions should be motivated and never arbitrary, established by a clear and precise law, temporary, necessary, and proportional to avoid an actual, probable, specific, and significative damage against a fundamental right or public interests. Furthermore, the Court considered that the administrative and judicial mechanisms established in the draft law were adequate, simple, quick, and effective. Additionally, it elaborated on the principles of maximum disclosure, publicity, transparency, and good faith, and emphasized that the right of access to public information was crucial for a constitutional regime and democratic participation.

Facts

On June 27, 2012, the Senate of Colombia sent the draft Law on Transparency and Access to Public Information to the Constitutional Court for its legal consideration, according to articles 153 and 241.8 of the Constitution of Colombia. 

On July 19, 2012, the Court requested from Congress all files and documents related to the debates and parliamentary sessions regarding the draft law. On October 16, 2012, the Court declared the opening of the revision process and invited Ministries, public offices, and civil society to participate in the deliberations. 

The Court received opinions from the Ministry of Housing, Habitat and Territory, the Ministry of Communications and Technology, the Ministry of Internal Affairs, the Ministry of Justice and Law, the Ministry of Finance, the Ministry of Education, the Ministry of Defense, the Ministry of Health, the Secretary of Transparency, the Superintendency of Industry and Commerce, the Central Bank of Colombia, the Special Administrative Unit for Land Restitution, the General Accounting Office, the National Statistics Department, the General Archive of the Nation, the Office of the Auditor General, the Administrative Department for Social Prosperity, the Office of the Comptroller General, the Ombudsperson’s Office, and the Attorney General’s Office. 

As for civil society, the Court acknowledged the intervention of the following organizations: José Alvear Restrepo Lawyers Collective, Open Society Justice Initiative, Dejusticia, Freedom of the Press Foundation, Transparency for Colombia, Ocasa Corporation, Antonio Nariño & Gómez Pinzón Zuleta Project, Colombian Commission of Jurists, Antonio Nariño University, and Santo Tomás University. There were also citizens who participated on an individual basis: Daniel Samper Pizano, Alberto Donadío, Ernesto Rey Cantor, Luisa Fernanda Castañeda Quintana, Ramiro Bejarano Guzmán, and Armando Benedetti.

Decision Overview

The Constitutional Court of Colombia had to determine whether the draft Law on Transparency and Access to Public Information was in accordance with the local Constitution and international human rights law standards. Firstly, the Court described the legislative process of the proposed law and the debates in both Chambers of Congress. It concluded that, from a formal aspect, the law complied with all the legal and constitutional requisites. Then, the Court analyzed, one by one, the constitutionality of each of the draft law’s articles, while addressing the correspondent comments made by the intervening parties. 

The Court held that every person was entitled to access public information, without having to demonstrate any particular interest. In this sense, it recalled that, in principle, every administrative act should be publicly available. In other words, the general rule is that every citizen can access any public document. The Court emphasized that access to public information had, at least, three main functions: i) it guarantees democratic participation and the exercise of political rights; ii) it is an instrument for protecting other human rights, such as the right to truth and the right to historical memory; and iii) it fosters transparency and oversight of public affairs and contributes to the fight against corruption.

Moreover, the Court also affirmed that the right of access to public information includes the right to disseminate, share and publish the data responsibly; this means, respecting the content, providing the context in which the information was produced, and without the purpose of creating confusion. Still, there is no obligation to confirm the veracity of the information, as it is presumed to be accurate. Here, the Court identified two main duties on behalf of the State, regarding the right of access to information. Firstly, public offices must deliver accurate information in a clear, complete, and updated manner to whoever requests it; and secondly, they must safely keep and preserve the information related to their activities. 

The Court also analyzed the possible limitations to the right of access to information. It explained that these exceptions must be narrowly interpreted and that any refusal to deliver data must be duly justified and established by law. Plus, the limitation must be necessary, adequate, and proportional to protect fundamental rights or guarantee national security, public order, public health, or the prosecution of crimes. Furthermore, the Court argued that every rejection to disclose data must prove that the requested information has a real, probable, and specific possibility of significantly damaging those interests. The Court held that exceptions to the right of access to information are not allowed regarding crimes against humanity or human rights violations. 

Thus, the Court considered, for example, that the wording of paragraph 2, Article 5 of the Law on Transparency and Access to Public Information did not abide by the Constitution, since it established an overly broad generic, and vague restriction on access to all information regarding national security, defense, public order, and international relations. The Constitutional Tribunal held that these types of blanket restrictions foster secrecy and are anti-democratic. The Court reiterated that the classification of information is exceptional and must be properly justified.

For the Court, restrictions to the right of access to information should be precise and clear, and indicate which are the public authorities that can determine the limitation. They should also be temporary, and the duration of the measure must be reasonable and proportional. Additionally, the Court warned that restrictions to the right of access to information can only refer to the content of a public document, but not to the existence of the document itself. 

The Court gave examples of personal data and the right to privacy as possible grounds for an admissible restriction to the right of access to information. In this sense, it elaborated that when the disclosure of public information could potentially compromise the life, integrity, or security of a citizen, it was acceptable to classify the data as confidential. Still, the Court held that the tension between the right of access to information and confidential data should be analyzed case by case. Also, the Court considered that in case journalists have access to confidential information, they can still publish it. In other words, the classification of confidential data is binding only for public servants, but it does not prevent the press from disseminating it if they already have it.

Plus, the Court affirmed that, in every case, the restrictive measure must interfere to the least extent possible with the right of access to information. For example, the Court sustained that public authorities must create public versions of those documents that contain both, public information and confidential information, ensuring that only the classified part is excluded; this would consolidate the principles of maximum disclosure, transparency, and good faith. The refusal to disclose information must never have the intention to impede oversight and social control over the public administration. To conclude, the Court held that “the restriction of the right of access to information is not a discretional measure, but a restrictive, necessary and controllable one” [p. 21]. In the present decision, the Court declared the unconstitutionality of some restrictions established in the draft law because they were too vague and not precise enough. 

Another relevant point of the Court’s analysis is related to accessibility. The Court held that special measures should be adopted to guarantee that different ethnic and cultural groups of the country, indigenous peoples, and persons with a disability could access information. In this sense, relevant public information should be translated into different languages and be in accessible formats. This is particularly important when the information may directly affect these groups’ interests. 

The Court also considered that the administrative and judicial mechanisms established by the draft law to ensure the right of access to information were adequate. In the Court’s opinion, they should be simple, easily accessible to people, free of charge, and with short-term but reasonable deadlines for public authorities to deliver the requested data. Finally, the Court ordered public entities to allocate the necessary budget and human resources to implement these mechanisms and ensure that information is publicly available. 

The decision had concurring votes from Judges Mauricio González Cuervo, Jorge Iván Palacio Palacio, Luis Ernesto Vargas Silva, Gabriel Eduardo Mendoza Martelo, and María Victoria Calle Correa. While they all agreed with most of the decision, they disagreed with specific aspects of the analysis regarding the legislative process and some parts of certain articles.