Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Nominations Are Now Open for the 2024 Columbia Global Freedom of Expression Prizes. Learn more and nominate here.
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
This case is available in additional languages: View in: Español
The Second Chamber of the Federal Administrative Court of Argentina found that the National Congress infringed on the right to access public information of four civil society organizations by not delivering administrative records regarding the resolutions, scholarships granted, names of deputies who receive “uprooting” payments for services provided outside their place of residence (cobro por desarraigo) and the amounts allocated. The plaintiffs lodged a legal action to receive the information after the National Congress denied the access to information request arguing that the information was confidential. The Court based its decision on the jurisprudence of the Supreme Court of the Nation and the Court itself. For the Court, the requested information didn’t affect the privacy of any public official. On the contrary, it allowed the public to exercise oversight on the State and its decisions.
Four civil society organizations requested that the National Congress publish a series of administrative records: i) the list of employees of the Chamber of Deputies hired as temporary staff —as service contractors or as permanent staff—; ii) the “internal administrative resolutions of the Chamber on their official website (…); iii) the scholarships and subsidies granted during the years 2011, 2012, 2013 and 2014; iv) (…) the list of names of the National Deputies who receive uprooting payments; v) (…) and the number of pesos assigned to each of the parliamentary blocks during the years 2011, 2012 and 2013.” [p. 14]
The Chamber of Deputies invoked several reasons for not granting the request. Among them, they invoked the national Personal Data Protection Law, which says that whoever requests information containing personal data must give an account of the purpose for which it will be processed and who will be the recipients.
The Second Chamber of the Federal Administrative Court agreed with the civil society organizations basing its decision on the jurisprudence of the Supreme Court of the Nation and the Court itself.
The Second Chamber of the Federal Administrative Court had to decide whether the arguments of the National Congress were valid and legitimate to restrict the right of access to public information of the civil society organizations that requested it.
The Chamber began its analysis by reviewing the constitutional and supra-constitutional basis of the right to access public information —especially the American Convention on Human Rights and the cases in which it had applied by the Supreme Court of Argentina. In this sense, the court recalled the ADC and CIPPEC cases as the cornerstone, in terms of case law, of the right of access to information in Argentina. These cases recognize the right of access to public information as a constitutional right based on the American Convention on Human Rights and interpret it following the guidelines offered by the Supreme Court and the Inter-American Commission on Human Rights.
The Tribunal made three considerations. First, it recalled that constitutional protection is indeed the appropriate procedural avenue to demand respect for access to information. Secondly, it emphasized the importance of recognizing access to information with broad active legitimacy. Finally, regarding the central issue of the case, the Second Chamber considered that none of the provisions in the Personal Data Protection Law No. 25.326 were applicable to the present case.
The court deemed:
“…that the considerations related to the nature of the information required are also applicable to the case, which, in the cited case and in the present one, does not seek to indiscreetly inquire into the private sphere, as defined by Article 19 of the National Constitution, about the particular situation of the individuals who receive the public funds involved in the sub examine. On the contrary, it pursues a public interest of particular transcendence: obtaining the necessary information to be able to determine whether the decisions of public officials when allocating them is exclusively in accordance with the criteria established in the relevant regulations. Consequently, the [administration’s] refusal based on the need to protect the privacy of the aforementioned beneficiaries cannot be admitted, since this mere reference, when it is not related to sensitive personal data whose disclosure is forbidden, disregards the public interest that is the fundamental aspect of the request for information made —which does not seem to be aimed at satisfying curiosity regarding the private life of those who receive them, but at effectively controlling the way in which the officials exercise their powers” [p. 15-16].
Regarding the nature of public information, the Court established that: “it is information of a public nature, which does not belong to the State but to the people of Argentina and, consequently, the mere condition of being a member of the community is sufficient to justify the request. It would be of little use to establish policies of transparency and safeguards regarding public information if access to it is then made difficult” [p. 13].
Finally, the Court ordered not only the delivery of the requested information to the plaintiffs but also that it must be published in its entirety on the Internet.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands access to information because (a) it reiterates the case law of the Supreme Court of Argentina in previous instances and (b) it rejects a common argument used by the State to deny access to information: the one based on an expansive interpretation of the national Personal Data Protection Law.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.