Access to Public Information, Political Expression, Privacy, Data Protection and Retention
Bainter v. League of Women Voters
Closed Expands Expression
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The Court decided a writ of amparo (acción de tutela) brought by a journalist to protect her right to life and personal integrity, after the state canceled the special protective measures it had previously assigned to her (consisting of an armored car and a driver/bodyguard) although she had been the subject of repeated threats. The measures were canceled when the journalist decided to personally drive the armored vehicle and dispense of the driver/bodyguard service’s alleging she was under surveillance. The Constitutional Court decided to protect the petitioner’s rights and ordered the state agency to determine, together with the journalist, the adequate measures to protect her security.
A journalist that investigated human rights and armed conflict matters was the victim of threats, harassment and persecution due to her professional activity. In her opinion, the authors of these acts included State security agents. Furthermore, the violence against her caused the journalist to go into exile on two occasions. Additionally, her daughter was also subject to threats and harassment. In response to these acts, the Ministry of the Interior included her in a special journalist protection program and placed her in the extraordinary risk category –the highest risk level on its risk assessment scale.
The security detail that was initially provided to the journalist consisted of a trusted driver, an armored car and two cell phones to ensure rapid communication in case of an emergency. However, the threats and harassment against her continued. After the person serving as her driver quit, the journalist asked the Administrative Department of Security (DAS) to hire another trustworthy driver/bodyguard. The DAS unilaterally selected some officials from its ranks to provide this service. However, the journalist did not accept them because she did not trust them and because there were signs that they were monitoring her. In view of the risk she was under, the journalist decided to personally continue driving the armored vehicle that had been assigned to her. As a consequence, the Ministry of the Interior ordered her to return the armored vehicle and, in its place, assigned her financial transportation assistance aid.
As a result, the journalist brought a writ of tutela against the Ministry of the Interior and the DAS. She argued that revoking the protection measures put her life and personal integrity at risk and therefore requested the reinstatement of the initial security detail (trusted driver, armored vehicle and two cell phones) and that the defendants meet with her to discuss the adoption of additional security measures.
In response to the writ of protection, the Ministry of the Interior and Justice argued, first, that ”it had no actual knowledge” of threats against the journalist since she did not submit a complaint to the judicial authorities. It argued ”the absence of complaint and cooperation with the judicial authorities is a risk factor borne by the person requesting protection since their nonlegal conduct increases their vulnerability and blocks the authorities from taking actions to neutralize the threatening agent” [p. 15]. The Ministry argued that it acted in “good faith” when it granted her a security detail although the petitioner never proved the threats against her. Second, the Ministry asserted the journalist had “misused” the security detail when she fired the driver and decided to drive the armored car herself. Under the law, this allowed the withdrawal of the security detail. In any event, the Ministry argued it was evident the petitioner was not left completely unprotected since the initial measures were simply replaced with other protective measures.
During the course of the proceedings, the journalist became aware that the DAS possessed detailed reports describing her personal movements and use of the car. The journalist asserted she was not aware of the contents of the files and expressed her discontent considering it was possible that she was being monitored–espionage or surveillance–and requested access to the reports.
The first instance Tribunal decided to protect the petitioner’s rights. The Council of State, the highest judicial body of the contentious-administrative jurisdiction, upheld the decision on appeal. Subsequently, the Constitutional Court, in revision proceedings, confirmed both decisions.
The Court decided three legal issues. First, whether “the agency charged with protecting a person that has been classified at the extraordinary security risk level by competent authorities violates that individual’s fundamental rights when it constantly questions the risk assessment without offering any rebutting evidence” [p. 35].
In this regard, the Constitutional Court recalled the special duties of public officials with respect to individuals at extraordinary risk due to their professional activity. In these instances, the officials are required to the acknowledge circumstances and “act with particular care to avoid increasing the risk” [p. 37]. Further, the Court reiterated that officials must abstain from making “reckless accusations” that may impact third parties who are particularly at risk.
The Constitutional Court referred to the jurisprudence of the Interamerican Court of Human Rights concerning public officials’ right to free expression. It stated, ”the right to free expression is subject to greater limitations when it is exercised by public officials carrying out their public duties than when it is exercised by ordinary citizens.” Hence, the principle of legality limits a public official’s autonomy and impresses upon them the aim of defending the human rights of all the individuals that inhabit the territory, regardless of whether they criticize or support the government.
Finally, the Court stated that “in a country with Colombia’s complexities, the State’s public denial, without sufficient evidence, of crimes, threats or harassment against a person or group of persons that, acting as independent journalists or human rights defenders, investigate or question the State, is an autonomous violation of the fundamental right to dignity, honor and truth of the threatened individuals. Furthermore, it violates a society’s right to collective memory; it may constitute a serious omission of the duty to guarantee and protect at-risk human rights; and, moreover, in certain extreme circumstances, if these statements incite violence against vulnerable people or groups, this conduct may constitute a direct violation of the right to personal security and the personal security-related rights of these people” [p. 40].
In this case, the Court found there was enough evidence that proved the threats against the petitioner and, therefore, there were no elements casting doubt on the violent circumstances affecting her. Moreover, the state entity responsible for assessing the risk placed her in the highest risk category. As a result, she was granted “hard” protective measures. The Court added that the Ministry of the Interior’s repeated questioning had the effect of ridiculing her fear, discrediting the petitioner and ”ultimately offers a certain degree of reassurance to the people responsible for the threats and harassment” [p. 41].
Consequently, the Court ordered to instruct the officials and advisers on the importance of respecting the circunstances of the personas that consider their life and integrity are threatened.
The second legal issue decided by the Court is whether the administrative decision to take an authorized armored vehicle from a person subject to an extraordinary security risk, because she does not accept the designated driver and therefore decides to personally drive the vehicle is constitutionally proportionate [p. 44].
The Court noted that due process guarantees should be observed in all the spheres in which State action or omission might impact a person’s rights. In this regard, the Court opined the measure to withdraw the security detail was adopted without fulfilling this guarantee.
The Court argued that if, despite the threats, a journalist decides to continue his or her investigation, it is necessary to design special protection schemes that guarantee “both their security and their work, and the important rights associated with freedom of expression. In particular, it has not gone unnoticed by the Court that these cases involve not only every person’s right to free development of personality but also the right to free expression and protection of sources” [p. 45]. Indeed, the at-risk journalist has a right to security and also to suffer the “least possible amount of collateral limitations” as a consequence of the protection that is being offered.
The Court held that, in this case, it was not reasonable to suspend the enhanced protection scheme of a person subject to serious risks because she decides to personally drive the vehicle when a trusted bodyguard is not available. Finally, the Court stated that economic aid was not a suitable means to protect her or her family’s security.
The third legal issue decided by the Court is whether the right to habeas data is violated when the state security agency is in possession of confidential reports on the petitioner’s activities without her knowledge or consent.
In the Court’s opinion, the State can only collect private or confidential personal information in databases when the law explicitly authorizes it or the individual in question has given consent. Furthermore, “the Court has repeatedly asserted that, in principle and unless otherwise established by law, the information held in State archives is public. However, if this information refers to an individual’s private, intimate or confidential data and does not carry any public importance it is protected under the scope of the right to privacy, in principle, and may not be collected and archived nor can it be disclosed. Nevertheless, if the information is being kept in official files, the person whose data is being held has a fundamental right to access this information unless otherwise specified by law” [p. 49].
The Court clarified that the right to habeas data has been given prevalence in the jurisprudence because other important rights, such as the right to privacy, depend upon its protection. In this respect, the Court indicated the legislator should determine the limits placed on this right according to the principles of reasonableness and proportionality.
With regards to the petitioner’s claim, the Court found there were no laws restricting her access to the data about herself. Additionally, the Court found that the fact that the reports–which contained information regarding her personal opinions and activities–“were not known by the petitioner, violated her right to habeas data” [p. 55].
Consequently, the Court protected the petitioner’s rights and ordered the Ministry of the Interior to i) conduct a study of the risks to the petitioner; ii) instruct officials and advisors on the importance of respecting the situation of individual’s who believe their life and integrity are under threat; iii) reestablish the initial security measures authorized for the petitioner and meet with her to evaluate the possibility of adapting the security scheme to her current needs. Similarly, the Court ordered that the DAS should allow the petitioner to access the reports on her activities and urged the heads of State intelligence bodies and the National Police to train their agents so they will abstain from conducting intelligence activities while carrying out protection duties because this denaturalizes the service.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the right to free expression to the extent it reiterates and applies the interamerican standard according to which public officials should express themselves in a manner that does not increase the risk level of threatened individuals. Additionally, it reiterates interamerican jurisprudence concerning the restrictions placed on the freedom of expression of public officials, according to which their interventions must be directed at defending the human rights of all the individuals that inhabit the territory and not offending the rights of their detractors. Moreover, the Constitutional Court elaborated on the international standards when it set forth that a public official’s unfounded denial of the acts of violence or threats suffered by journalists or critical defenders can be considered as a violation of that individual’s rights to dignity, honor and truth.
Second, the court expanded the scope of the right freedom of expression when it decided that the security schemes of journalists under threat that choose to continue exercising their profession must be modified and/or planned in a way that guarantees the journalist’s right to work and free expression. In this regard, it reiterated the importance of including the beneficiaries of protection measures in their design and implementation. In accordance with standards established by the Interamerican Court, the Colombian Court determined the need to evaluate whether the protection measures offered to journalist are suitable for attaining the goal of protecting the rights to life and integrity. Finally, it expanded the right to access public information when it recognized the petitioner’s right to access her personal data that was collected by the intelligence agencies, as long as there are no laws placing legitimate restrictions on this right.
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