Access to Public Information
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Closed Expands Expression
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The Constitutional Tribunal of Peru ordered the Provincial Municipality of Nazca’s Mayor to deliver certified copies of the technical file of the repair of the pavement and sidewalk of several streets in the city of Nazca, and its public procurement process. In doing so, the Court protected the right of access to information of Julio Óscar Elías Lucana who submitted a request before the aforementioned authority requiring this information. The office of the Mayor failed to provide the required documents, which prompted Elías Lucana to sue. For the Court, the defendant did not comply with the principle of transparency by failing to deliver the information within the established term.
Julio Óscar Elías Lucana filed an access to information request before the Mayor of the Provincial Municipality of Nazca, Mr. Daniel Osvaldo Mantilla Bendezú, requesting certified copies of the technical file of the repair of the pavement and sidewalk of Callao Street, between Tarapacá and Micaela Bastidas Streets, in Nazca, and its public procurement process.
Elías Lucana claimed that despite having complied with the formal requirement referred to in Article 62 of the Code of Constitutional Procedure, the Municipality did not respond to his request, thus violating his right of access to information, as enshrined in Article 2.5 of the Constitution.
In light of this, on July 22, 2009, Elías Lucana lodged a habeas data action against the Mayor of the Provincial Municipality of Nazca, seeking access to the information he requested.
The defendant argued that the appellant’s original request was not an access to information request, but rather a right of petition —as set in paragraph 20 of Article 2 of the Constitution—, and therefore asked the first instance judge that the complaint be dismissed. Regarding the information request made by the plaintiff, the defendant also pointed out “that it was referred to the corresponding office for processing, where, since it is a matter of granting copies, the established procedure must be complied with, such as paying the corresponding expenses.”
On October 12, 2009, the Civil and Family Court of Nazca granted the plaintiff’s action and ordered the Mayor to deliver the information he requested, after considering that the required information was public and that there had been a violation of the right of access to public information.
The Mixed Court of Appeals of Nazca of the Superior Court of Justice of Ica overturned this decision —declaring the lawsuit inadmissible in application of clause 4) of article 5 of the Constitutional Procedural Code— since it considered that the plaintiff had not complied with the previous requirement referred to in article 62 of the Constitutional Procedural Code (i.e. the plaintiff, before lodging the habeas data action, should have insisted on its request before the original authority).
Elias Lucana submitted an action of constitutional harm (agravio constitucional) against the appeals court’s decision before the Constitutional Tribunal of Peru.
The Constitutional Tribunal of Peru had to decide whether the decision of the Mayor of the Provincial Municipality of Nazca of not delivering the information requested by the plaintiff —requiring certified copies of the technical file of the repair of the pavement and sidewalk of several streets in the city of Nazca and its public procurement process— breached his right of access to information.
The Court first analyzed if, as stated by the second instance court, the plaintiff failed to fulfill any previous requirement needed in order to lodge a habeas data action. For the Tribunal this was not the case. When interpreting Article 62 of the Constitutional Procedural Code, the Court concluded that in order to submit a habeas data action before the judicial system, it is not necessary to exhaust any administrative procedure. The mere silence of the state’s authorities —or the delivery of an unsatisfying response— in access to information requests, is the only requirement to lodge a habeas data action.
Subsequently, the Court underscored transparency as a key principle in democratic societies and highlighted access to information as an instrumental right to hold power accountable and foster public interests, rather than personal or sectarian ones.
Upon analyzing the specific case, the Tribunal considered that the Mayor’s decision not to deliver the required information was not in accordance with the principle of transparency. The Court considered that the information requested by the plaintiff was public by nature since it refers to public works —financed with public funds— and its public procurement process. Hence, the Tribunal argued, there’s no reason the information should be kept secret.
Considering these arguments, the Court ordered the Mayor of the Provincial Municipality of Nazca to fulfill the access to information request of the plaintiff by delivering the documents he asked for.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Constitutional Tribunal of Peru expanded the scope of freedom of expression by underscoring the relevance of access to information in the consolidation of democratic societies. As the Court noted, citizen or public oversight are key to achieve transparency and accountability within the state. In this case, access to information is vigorously protected by the Court, thus strengthening the aforementioned principles.
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