Case Summary and Outcome

On December 8, 2021, the Constitutional Court of Ecuador found that the Ministry of Health had partially complied with a ruling issued by a Court of Criminal Guarantees that had resolved a motion for access to public information filed by the Defensoría del Pueblo (Ombudsman’s Office) regarding the issuance of disability cards. Among other things, the Defensoría del Pueblo had asked the Ministry of Health for documentation regarding the authorities involved in the disability qualification process, and the cards issued broken down by qualification unit and date of delivery, a comprehensive assessment made in each case, and the cards issued during the COVID-19 pandemic. In its decision, the Constitutional Court determined that the Ministry of Health had not fully complied with the judicial order and thus ordered it to immediately and fully deliver the pending information. 

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Facts

On October 23, 2020, the General Coordinator of Prevention and Promotion of Human Rights of the Defensoría del Pueblo (Ombudsman Office) filed an access to public information request before the Minister of Public Health requesting documentation related to the issuance of disability cards. 

On November 23, 2020, the Criminal Guarantees Court of Iñaquito in the District of Quito issued a judgment accepting the request and ordered the Ministry of Health to deliver the required documentation. 

On December 1, 2020, in compliance with the Court’s ruling, the Ministry of Health partially submitted the requested documentation. On January 26, 2021, the Ministry of Health submitted additional records in light of the Ombudsman’s claim that the information had not been delivered in full. However, a day later, the Defensoría del Pueblo filed a non-compliance action since it considered that the Ministry had failed to provide the requested information in full. On February 9 of the same year, the Ministry of Health submitted additional documentation again. 

After the Ombudsman’s Office delivered its observations on the second submission, the Court cautioned the Ministry of Health that if it did not submit the pending documentation within 72 hours, it would declare non-compliance with the judgment. On February 24, 2021, the Ministry indicated that it had delivered all the required information. 

On February 25, 2021, the Defensoría del Pueblo argued that the inconsistencies and observations made to the information persisted. Consequently, on March 5, 2021, the Court declared partial non-compliance and submitted the case to the Constitutional Court. 

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Decision Overview

The main issue for the Constitutional Court of Ecuador to examine was whether the Minister of Health had complied with the judgment of November 23, 2020, regarding the Defensoría del Pueblo’s access to the information request. 

The Ombudsman’s Office pleaded with the Court to declare non-compliance with the judgment of November 23, 2020, to establish measures of satisfaction, guarantees of non-repetition, and the immediate and complete delivery of the requested information. In turn, the Ministry of Health presented a report explaining how it had complied with the judgment of November 23, 2020.  

The Court divided the case analysis in light of each issue regarding the requested information that the Defensoría del Pueblo deemed incomplete. 

Issue I.  Number of disability cards issued at the national level 

The Defensoría del Pueblo contended that it had requested information regarding the number of cards issued in the previous five years for each province and the qualifying unit, disaggregated by type of disability; however, it argued that the information was incomplete since the Ministry of Health failed to disaggregate the data based on the requested parameters. In turn, the Ministry claimed that in an electronic file provided to the Ombudsman’s Office, this information was, in fact, disaggregated by, among other criteria, province, physician, health facility, and type of disability. After analyzing the documentation submitted by the Minister of Health, the Court corroborated that the requested information had been answered in full. 

 Issue II. Disability qualification process  

The Defensoría del Pueblo argued that while it had requested the Ministry of Health information about the disability qualification process, its normative justification, and the responsible parties, it had not received any documentation, including the names of the individuals responsible for controlling and implementing the regulations, nor their positions. The Ministry of Health stated that the qualification and requalification processes were based on the regulation for the qualification, requalification, and accreditation of persons with disabilities or with impairment or disabling conditions.  

Considering the parties’ arguments, the Court confirmed that the Minister of Health needed to submit accurate and systematized information regarding the individuals in charge of the disability qualification process. Notably, the Court pointed out that such information had to be arranged through an organizational chart specifying the authorities and instances involved in the process and the regulations supporting such institutions.  

 Issue III. Technological security of the computer system 

The Ombudsman’s Office requested a detailed report on the technological security measures the Ministry of Health used to assess disability card candidates and asked whether it assigned specific passwords to each professional involved in the review process. The Defensoría del Pueblo noted that the Ministry had failed to detail the technical security measures of the computer system. The Minister of Health disputed this claim and stated that it had supplied the requested information. 

Upon analyzing this issue, the Court found that the information submitted by the Ministry was detailed and that it, in fact, revealed how the assignment of passwords worked.  

Issue IV. Persons with qualified disabilities diagnosed by private practitioners

The Defensoría del Pueblo argued that it requested the Ministry of Health for a document that showed the number of persons with disabilities that have been qualified for a disability card based on a diagnosis by private professionals, disaggregated by type of disability, province, and certifying unit. It also remarked that it had asked the Ministry to specify the protocol for qualifying disabilities with private diagnoses. The Ombudsman’s Office stated that the number of cases ordered by diagnoses by private professionals had yet to be provided since the information supplied only covered claims starting in 2020. The Ministry of Health contended that it had provided all the information, except for the number of disability cards emitted by private practitioners, since the system used for the certification process did not identify the type of certification entity. The Court verified that, as stated by the Ministry of Health, the contended information was not delivered because the system used by the Ministry did not register the type of provider that grants the certificates and complementary examinations.  

Issue V. Disability cards issued by qualifying unit  

The Ombudsman’s Office held that the Minister of Health had failed to comply with its demand for a database that included the disability cards by the qualifying unit and the date and time when each document was issued. In response to this matter, the Ministry of Health stated that the requested information had been provided in its entirety and noted that the system it used only recorded the time of the qualification process rather than that of the issuance of the disability card. 

In the Court’s opinion, while the Ministry of Health had indicated how the time registration system worked, the criterion was not evident from the presented database. Thus, the Court ordered the Ministry of Health to submit the information regarding the disability cards issued to persons with disabilities disaggregated according to the qualifying unit, date, and time of the qualification process.   

Issue VI. Transfer of files from CONADIS to the Ministry of Health  

The Defensoría del Pueblo recalled that it had asked if CONADIS (National Council for the Integration of People with Disabilities) had transferred the totality of the files and their backups to the Ministry of Health, yet, it pointed out that this information had not been supplied. On the contrary, the Minister of Health argued that the transfer of the qualification and accreditation of persons with disabilities had taken place in May 2013, which included equipment, materials, and the digital database from 1996 to 2013, and stated there had been a provisional delivery of the physical documentation. 

After considering the parties’ arguments in this regard, the Court deemed that although the Ministry of Health had informed the Ombudsman’s Office of the transfer of the files, the evidence relied on a certificate of provisional delivery, which inevitably meant that it had not fully complied. The Court, therefore, ordered the Minister of Health to clarify whether the transfer of files had been finalized or if it remained provisional and if so, to explain why. 

 Issue VII. Execution of an interdisciplinary evaluation 

The Ombudsman’s Office argued that despite having requested documentation from the Ministry of Health showing that each step of the assessment process was carried out by the corresponding certifying physicians, psychologists, and social workers, it had not received any document evidencing whether these three professionals conducted an interdisciplinary assessment. 

The Court considered that the Ministry of Health had failed to complete this task. Notably, the Court remarked that although the Ministry had submitted a record showing that the assessments had been carried out by a professional, it was unclear from the documentation submitted whether a comprehensive review had been done. Consequently, the Court ordered the Ministry of Health to provide the Ombudsman’s Office with documentation confirming that the interdisciplinary evaluation had been accomplished. 

Issue VIII: List of persons with a score of 10 points and higher 

The Ombudsman’s Office requested that the Ministry of Health send a list of the persons who have obtained a score of 10 points, or higher, in the socioeconomic evaluation, disaggregated by type of disability, province, and qualifying team, in the previous years. However, it argued that this information was yet to be submitted with the requested disaggregated variables. After analyzing the evidence submitted by the Ministry of Health, the Court determined that the Ministry had provided complete information through an excel database in which the required variables were properly broken down.   

Issue IX. Administrative acts of designation of qualifiers functions

The Ombudsman’s Office stated that it had requested documentation of the administrative acts that evidenced the designation of functions to the qualifying physicians, proof of training, and formal assignment of their tasks. However, it pointed out that the Ministry of Health had only provided a list of 100 qualified technicians without indicating the complete list at the national level or evidence of their training.  

The Ministry insisted that it had submitted the administrative acts related to the designation and training of qualified qualifying physicians, as well as a detailed list at the national level. The Court confirmed the prior and found that the Ministry had effectively complied with this request. 

Issue X. Employees from the Ministry of Health with disability card

The Defensoría del Pueblo noted that it did not receive the requested information regarding the number of employees from the Ministry of Health at the national level that had obtained a disability card in the prior five years, including the type of disability, public sector scale, the qualifying unit that issued the card and the time of the process. 

In line with what the Ministry claimed, the Court found that the information had been submitted according to the requested criteria. The Court found that the Ministry of Health had presented the requested information regarding the civil servants who had obtained the disability card disaggregated according to the requested criteria.  

Issue XI. Disability Cards issued during the public health emergency (COVID-19)  

Lastly, the Defensoría del Pueblo argued that it had requested information on the number of disability cards issued during the COVID-19 health crisis disaggregated by province, qualification unit, and qualification teams that issued the cards; however, it pointed out that it did not receive information on the qualification team, which is why it was not clear whether the physicians vetted the cards issued during the health emergency without the participation of social workers and psychologists. The Ministry of Health stated that during the health crisis, 2,284 disability cards were issued, with data disaggregated by province; it reiterated that the supplied information was provided by the system, which defined the variable of “qualifying professional” solely as the “physicians” involved in the process, rather than the whole qualifying team. In light of the previous, the Court considered that although the Ministry of Health provided the requested information through a disaggregated database, it did not have the information regarding the qualifying teams. Therefore, the Court ordered the Ministry to deliver this specific information to the Ombudsman’s Office. 

Considering each issue analyzed, the Court concluded that although the Ministry of Health did not provide specific information on time and had held that it did not have it or did deliver it later —due to the amount and specificity of the requested information—, the delay in such delivery was reasonable. In the same vein, the Court held that within the framework of Article 91 of the Constitution, when establishing the period required to comply in cases regarding access to public information, the judicial authorities must consider the specifics and quantity of the information requested. Therefore, the Court deemed that the requested measures of satisfaction and non-repetition were not appropriate. Nevertheless, the Court ordered the immediate and complete delivery of the pending information highlighted in the ruling. Accordingly, the Court urged the Ombudsman’s Office to make cautious use of the information provided by the Ministry of Public Health to prevent such information from being leaked. 

The Court partially accepted the non-compliance action and declared partial compliance with the judgment of November 23, 2020, issued by the Court of Criminal Guarantees. In particular, the Court found the Minister of Health had fully complied with issues I, III, VIII, IX, and X, accepted the impossibility of compliance with issue IV, and found it had not complied with issues II, V, VI, VII, and XI. 

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