Case Summary and Outcome

The Constitutional Court of Guatemala declared that several provisions of the Access to Public Information Law were in accordance with the Constitution. The decision was issued after the Court studied multiple lawsuits that challenged the constitutionality of the legislation, particularly regarding the ownership of the right of access to information and the legal limitations regarding the disclosure of public officers’ salaries. According to the Court, citizens do not have to claim a particular interest when requesting access to information, restrictions to this right must satisfy a three-part test, and information about the salaries of public officials is of public interest.

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Facts

The Constitutional Court of Guatemala studied several lawsuits filed against the Access to Public Information Law. According to the plaintiffs, the claims focused on three points: 

(i) Articles 2.1, 2.7, 5, 9.3, 16, and 41 of the Law do not comply with article 30 of the Constitution. This is because they attribute the right of access to information to any person when the constitutional text specifies that this freedom is only held by interested parties: “interested parties have the right to obtain, at any time, reports, copies, reproductions and certifications, and the exhibition of the files they wish to consult” [p. 2]. In the opinion of the plaintiffs, the word “interested parties” only covers those who are personally and directly affected by the acts of the administration.

(ii) Articles 1.5, 21, 22, and 23 of the Law do not comply with the Constitution, because they add different exceptions to the right of access to information than those established expressively in the Constitution. 

(iii) Articles 10.4, 11.2, 12.5, and 13.2 do not comply with the Constitution because they order the public disclosure of public officials’ salaries, which violates their right to privacy and security. In their opinion, this information facilitates the commission of multiple crimes against State agents.

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Decision Overview

The Court had to resolve: (i) whether the standing to exercise the right of access to information is inherent to any citizen, or if it only belongs to those who have been directly and personally affected by an administrative act; (ii) whether a Law may add exceptions to the right of access to information when the Constitution has already detailed the cases in which such right may be restricted; and (iii) whether the disclosure of the public servants’ salaries, bonuses and per diems violates their rights to privacy and security.

Regarding the first legal problem, the Court concluded that the right of access to information is inherent to any citizen, hence there is no need to prove a particular interest. The Court recalled the pro homine principle, which establishes that constitutional interpretation must always favor the exercise of the rights and values immersed in the constitutional text. For this, article 30 of the Constitution (which establishes that “interested parties” have the right to request and receive public information that is not subject to confidentiality), must be understood in the sense that the right of citizens to obtain information from the administration does not require that they have an interest other than that which “comes from their own free will as an administered person” [p. 11]. 

Additionally, to sustain this argument, the Court recalled, among others, Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 13 of the American Convention on Human Rights (ACHR) and the Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), as well as the cases Claude Reyes v. Chile and Usón Ramírez v. Venezuela, of the Inter-American Court of Human Rights (IACHR Court).

As for the second issue, the Court indicated that the national legislative body may “specify the conditions under which the general postulates set forth in the Constitution may be fulfilled” [p. 15]. Thus, a Law can establish further circumstances where information should be confidential and classified.

In this sense, the Court explained that there are exceptions to the principle of maximum disclosure and that some of them are expressly contained in the Constitution. Specifically, article 30 establishes that information on military or diplomatic matters of national security and data provided by private individuals are confidential.

The Court held that according to international standards, in order to establish the exceptions regime, three requirements must be met: i) the restriction must be established by law; ii) it must be necessary to respect the rights of others, or to protect national security, public order, public health or morals; and iii) it must be necessary for the execution of the aforementioned principles and proportional to the effective exercise of the right.

Considering these points, the Court held that the constitutional text is not modified when a legal norm congruently develops its content, as in fact occurs with the provisions in which the legislator describes the assumptions under which the right of access to information may be restricted.

The Court then examined the constitutionality of the circumstances listed in Article 22 of the Access to Information Law, which determines what kind of information may be considered confidential:

1) “That expressly defined in Article 24 of the Constitution of the Republic of Guatemala” [p. 15]. The Court indicated that it refers to the constitutional principle of inviolability of correspondence, documents, and books, and that the restriction aims to protect the right to privacy.

2) “That expressly defined as confidential in the Law of Banks and Financial Groups” [p. 15]. The Court noted that the exception refers to Article 63 of the Law of Banks and Financial Groups, Decree 19-2012, which provides that, unless there is a judicial order, members of the Monetary Board and the authorities, officers and employees of the Bank of Guatemala, and of the Superintendency of Banks, are prohibited from delivering information of the users. In the opinion of the Court, the confidentiality of this data is protected by Article 30 of the Constitution and Article 12 of the Universal Declaration of Human Rights, and 17 of the ICCPR.

3) “Information classified as a professional secret,” [p. 16] which refers to personal information that is shared by a citizen with a professional under the guarantee of confidentiality, for example, lawyers and doctors. For the Court, this exception is also supported by the articles mentioned in the preceding paragraph.

4) “That which by an express legal provision is considered confidential,” [p. 16] in this regard the Court only noted that when the legislative body develops the content of Article 30 of the Constitution by enumerating the circumstances when the data should be understood as confidential, it does not disregard the Constitution.

5) “Sensitive data or sensitive personal data, which may only be known by the holder of the right” [p. 16]. This is data that, according to Article 9 of the contested Law, corresponds to “[a]ll personal data that refers to the physical or moral characteristics of persons or to facts or circumstances of their private life or activity, such as personal habits, racial origin, ethnic origin, political ideologies and opinions, religious beliefs, physical or mental health, sexual orientation, moral and family situation or other intimate matters of a similar nature,’” [p. 16] which, in the Court’s opinion, corresponds to the content of the right to privacy, also protected by the Constitution.

The Court continued with the analysis of Article 23 of the Law, which listed other circumstances where the information is to be reserved:

1) “Information related to intellectual property, industrial property, patents or trademarks held by the authorities shall be subject to the provisions of international conventions or treaties ratified by the Republic of Guatemala and other laws on the subject” [p. 16]. In this regard, the Court held that the restriction is legitimate as long as “it seeks to safeguard – during the time provided in the aforementioned Laws – the information received by the competent authorities that is related to the inventor’s right, […] the so-called undisclosed information or test data relating to the approval of a new pharmaceutical or agricultural chemical products for its commercialization and, in general, information that has been delivered by individuals under the guarantee of confidentiality” [p. 17]. This is in accordance with article 30 of the Constitution, article 12 of the Universal Declaration of Human Rights, and article 17 of the ICCPR.

2) “When the information could cause serious harm or damage to the investigation, prevention or prosecution of crimes, intelligence activities or the administration of justice” [p. 17]. In this regard, the Court held that this is a temporary restriction and that it is based on the State’s duty to criminally prosecute unlawful conducts.

3) “Judicial files, as long as they have not become executory, in accordance with special laws” [p. 17]. The Court recognized that by virtue of the principle of maximum disclosure, judicial proceedings are, as a general rule, publicly available; however, they are subject to exceptions that are “rooted in overriding interests of a public nature, such as morality, public order, national security and the administration of justice; or private nature, such as respect for privacy” [p. 18]. Regarding the right to privacy, the Court sustained that the principle of transparency should include public scrutiny on how judges deliver justice, but not on the particular matters that are the object of the process since they belong to the parties’ private sphere. In any case, the Court recalled that the restriction is not applicable in proceedings involving public interests.

4) “Information that could damage the economic, financial or monetary stability of the country, as well as that which is related to the surveillance and inspection by the Superintendency of Banks” [p. 19]. Regarding this restriction, the Court emphasized that it involved public interests, such as the duty of the State to guide and develop the national economy, to implement the country’s monetary, exchange, and credit policies, and to ensure the solvency of the banking system.

5) “Information defined as confidential in the Law for the Integral Protection of Children and Adolescents” [p. 19]. For the Court, children and youth involved in judicial proceedings require special treatment to protect their privacy. Such treatment is also guaranteed at the international level by the Convention on the Rights of the Child.

6) “That which is classified as confidential by law” [p. 20]. Regarding this generic provision, the Court stated that “in each specific case, the authority in charge of the information must weigh the circumstances of the case, in order to determine whether the requested data contains elements that justify, as an exception to the principle of maximum disclosure or disclosure, its confidentiality” [p. 20].

Finally, regarding the third legal problem, the Court concluded that the information on the public officer’s salary is public since the origin of these resources is the national treasury and the taxes paid by the people. Thus, people have the prerogative of accessing governmental information in order to verify the manner in which state resources are invested. In this sense, the remuneration of public officials, employees, servants, and advisors is, undoubtedly, an important item in this regard. Additionally, the Court held that this information does not fall within the core of the right to privacy, which enjoys constitutional protection. 

The Court also rejected the argument related to the possible insecurity for public agents, as it explained that the general situation was not an excuse for not disclosing the data. Finally, the Court emphasized that the disclosure of the salaries of those who work in public entities is also contemplated in article 12 of the Inter-American Model Law on the Right of Access to Information, approved by the OAS General Assembly.

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