Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Supreme Court upheld the right of access to information for certain documents that were part of preliminary investigations conducted by the Public Prosecutor’s Office (Procuraduría General de la Nación). The Court held that the rule that all documents that are part of preliminary investigations are classified, for the sole reason that they are part of such investigations, is disproportionate and, therefore, violates the right of access to information.
The director of the magazine Proceso requested the National Human Rights Commission a copy of the file from a case opened as a result of a complaint he had filed with the Commission. The Commission authorized non-notarized copies of the documents in the case file, except those, which were secret. Based on the legal framework in force at the time, the Human Rights Commission considered secret information that which, despite being in the file for a case handled by the Commission, was directly related to preliminary investigations conducted by the Public Prosecutor’s Office. In consequence, it denied access to such information.
The director of the magazine filed an action to enforce constitutional rights (amparo) against this decision. In his view, the norms on which the Commission based its decision violated his right of access to information, right of defense, and right of access to justice. Specifically, he considered that Article 16 and the first implementing act of the Federal Code of Criminal Procedure (Código Federal de Procedimientos Penales); Articles 3 (II), 13, and 14 (III) of the Federal Transparency and Access to Public Government Information Act (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental); Articles 4 and 48 of the National Human Rights Commission Act (Ley de la Comisión Nacional de los Derechos Humanos); Article 9 of the Transparency and Access to Information Regulation of the National Human Rights Commission (Reglamento de Transparencia y Acceso a la Información de la Comisión Nacional de Derechos Humanos); and the documents through which it was decided and notified that access to certain pages of the case file would be restricted, disregarded Articles 1, 6, 14, 16, 17, and 102(B) of the Constitution.
The following are excerpts from the provisions whose constitutionality was reviewed by the Supreme Court:
Federal Code of Criminal Procedure “Article 16. (…)
(AMENDED, Official Gazette of the Federation, JANUARY 23, 2009) Only the accused, his or her counsel, and the victim or injured party or his or her attorney shall have access to the file regarding the preliminary investigation. The preliminary investigation, as well as any documents related thereto, regardless of their content or nature, and any objects, voice recordings, images, or items related to the investigation, are strictly secret.
(ADDED, Official Gazette of the Federation, JANUARY 23, 2009) For purposes of access to public government information, only a public version of the ruling not to prosecute may be given, provided that a period equal to the statute of limitations for the crimes in question has lapsed, in accordance with the provisions of the Federal Criminal Code (Código Penal Federal); this period may be no less than three years and no greater than twelve years from the date that such ruling has become final. […]
(ADDED, Official Gazette of the Federation, JANUARY 23, 2009) After criminal proceedings have been initiated, The Public Prosecutor’s Office may not provide information to any individual that is not legitimate.
Federal Transparency and Access to Public Government Information Act
“Article 13. Information may be classified as secret information if its disclosure would:
Article 14. The following shall also be considered secret information: I. That which a law expressly declares to be reserved, confidential, reserved commercial information, or confidential government information; […] III. Preliminary investigations;”
Transparency and Access to Information Regulations of the National Human Rights Commission
“Article 9. In accordance with Article 4 of the National Human Rights Commission Act and pursuant to the provisions of Section I of Article 14 of such Act, secret information is considered to be any information or documents contained in the complaint, guidelines, referral, follow-up documents, recommendations, and appeals to be processed in the Commission.”
The petitioner considered that the above articles create an absolute restriction or prohibition to the right of access to information. In his view, the cited provisions are extremely broad and would allow the withholding of information that the public has a right to know. In this regard, he stated that the administrative authority should assess in each case whether the public interest reasons justifying the secrecy should outweigh the fundamental right to information, in contrast with the path taken by the legislator, which eliminated the substance from this right by imposing absolute secrecy.
In this case, the Supreme Court held that the provisions requiring secrecy for all information that is part of preliminary investigations in criminal proceedings may not be applied in deciding the plaintiff’s request for information, because their excessively broad scope makes them unconstitutional.
The Court had to determine whether the fundamental right of access to information was violated by the law requiring secrecy for all items or documents comprising a preliminary investigation, regardless of any other consideration.
The Court found that the right of access to information is violated by the law that absolutely prohibits access to any document that is part of a preliminary investigation, without exception. For the Court, there are some cases in which it is unnecessary to maintain secrecy, because the requested information no longer serves the purposes for which such secrecy was required, i.e., it is no longer useful for the pursuit of justice. In other words, the Court holds that the law is unreasonable when it renders information secret simply because it is part of a preliminary investigation, without regard to relevant or supervening facts. For example, these facts could include whether the investigation is indeed in progress, or whether it has been indefinitely suspended and the secrecy of the information is no longer necessary in any way because, for instance, the statute of limitations for the crime has expired.
To support this assertion, the Supreme Court began by noting that the framework for reviewing the constitutionality of the provisions should be Article 6 of the Constitution, in comparison with Article 13 of the American Convention on Human Rights (ACHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), since Article 6 establishes the right of access to information as an independent right that is not derived from other rights.
According to the Court, Article 6 of the Constitution provides that the public interest, privacy, and personal data are all limitations on the right of access to information. However, for a restriction on this right to be valid, it must be defined by a law, in the formal and material sense, and must meet the requirements of a proportionality test.
In the case in question, the limitation is set by a law (the Federal Transparency and Access to Public Government Information Act and the Federal Code of Criminal Procedure). In terms of the substantive requirements, the Federal Transparency Act establishes two criteria under which information can be classified: because it is confidential information or because it is secret information. Secret information includes secrecy because of public interest, as in the case of preliminary investigations.
With these considerations, the Court analyzed whether this limitation met the proportionality test, which begins by identifying whether the limitation on the right of access pursues a legitimate purpose or interest. In this regard, the Court held that the purpose of the restriction was legitimate as it sought to “investigate, prosecute, and seek punishment for crimes, as well as to protect the privacy and personal data of those individuals who have been subject to these actions”. [par. 171]. The Court then examined whether the restriction on the right of access to information was “necessary.” In this regard, it concluded that the restriction was indeed necessary to “prevent, investigate, prosecute, and punish crimes committed in society,” [par. 151] and that this “‘compelling social need’ […] qualifies as an ‘imperative public interest’ that justifies a restriction on the right of access to information by categorizing the information from preliminary investigations as secret” [par. 159].
With regard to the “reasonableness” requirement, the Court found that the restriction on the right of access to information is an appropriate means to achieve the desired end, because the secrecy of the preliminary investigations helps create the conditions for the Mexican State to prevent, investigate, prosecute, and punish the crimes committed. In that regard, it found that the legislator implemented a measure that was appropriate for the goal being pursued, by complementing the obligation of secrecy in criminal proceedings, while also harmonizing the right to information establishing that secrecy is temporary and that information from preliminary investigations must be accessible, through a “public version of the ruling not to prosecute”. [par. 191].
However, the Supreme Court held that the absolute secrecy of all information in preliminary investigations does not meet the third part of the test, that is, the requirement for proportionality sensu stricto, as it does not “seek an appropriate balance between […] the right of access to information and the end objective sought by the restriction”. [par. 199]. The Court stated that the general rule requiring the secrecy of information in preliminary investigations prevents the institution responsible for deciding on whether to authorize copies from determining in a well-founded and justified manner whether or not the information should be secret. [par. 201]. In this regard, it considers that in certain circumstances the information is no longer useful to prosecute the crime and, thus, it is unreasonable to keep the information secret. According to the Court, when determining whether to accept a request for access, the government official responsible for the decision must be able to determine the reasonableness of the restriction. This means conducting the harm test to determine whether disclosure of the information could “seriously affect the performance of the functions of the State or endanger the life, safety, or health of any person”. [par. 182].
The Supreme Court reinforced its argument on the necessity requirement by referring to opinion OC-5/85 of the IACHR which cites the case of The Sunday Times v. The United Kingdom heard by the ECtHR, which states that the need to restrict the right of access to information may be justified by crime prevention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision recognizes the right of access to information as a fundamental right and the principle of maximum disclosure as a guiding principle of the constitutional system. In this regard, the judgment reinforces the fact that restrictions on the right of access to information must be exceptional, insofar as it demands that strict requirements be met to make information secret, especially in matters that have a high level of public interest. Although the Supreme Court recognized the necessity and reasonableness of making documents in preliminary investigations secret, it found that the restriction should be conditional to the harm taking place if they are disclosed, and that this harm should be verifiable by a government institution. To that extent, the Court took the pioneering step of applying the highest international standards on access to information to preliminary investigations in criminal cases.
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