Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Constitutional Court of Colombia ordered the Ministry of Defense to deliver information concerning the names of members of the national forces who were present at certain times and places, when human rights violations occurred in San José de Apartadó, Colombia. The Court also ordered to disclose information regarding their chain of command, institutional codes, and the units they belonged to. A citizen requested the aforementioned information from the Ministry of Defense, who denied it under the argument that disclosing it would violate the right to due process and the presumption of innocence of the involved officers. For the Court, the decision to deny the information was neither reasonable nor proportional since less restrictive measures could have been enacted to protect these rights.
A citizen requested from the Ministry of National Defense the full names of the national armed forces officers who were present at certain times and places when human rights violations against the citizens of San José de Apartado’s Peace Community occurred, as well as their institutional codes, the units to which they belonged and their chains of command, in order to commence criminal, disciplinary and civil procedures at the national level, as well as the corresponding actions at the international level. The access to information request was denied since, in the Ministry’s opinion, providing this information, which was already a part of internal and criminal investigations, would disregard the right to due process and the presumption of innocence of the members of the national forces whose names were requested.
In light of this, the citizen filed a tutela action on behalf of San José de Apartado’s Peace Community, seeking protection of their rights of access to information and access to justice. The plaintiff sought the delivery of the requested information and based his request on the right of all citizens to know who are its state agents and to denounce them criminally and disciplinarily. The judicial authority in charge of deciding the case in its only instance considered the action was inadmissible because the defendant answered the plaintiff’s request and rightly based its refusal to deliver the information on the confidential nature of the requested information. It also considered that the persons who believed they were affected by the alleged human rights violations should go directly to a judge.
The tutela action was specifically chosen by the Constitutional Court for further examination. This Court decided to obtain more detailed information from the parties involved. Thus, it learned that another reason on which the Ministry based its refusal to grant the information was due to the existence of ongoing internal investigations into some of the events denounced by the plaintiff regarding human rights violations.
The Constitutional Court of Colombia had to determine whether, in a context of serious human rights violations allegations in a region of the country, a citizen has the right to know the names, institutional codes, chains of command, and units they belonged, of public force officers who were in certain times and places when human rights violations happened in San José de Apartadó, Colombia.
The Court began by stating that the right of access to information has constitutional hierarchy and has been recognized as a fundamental right. On the other hand, it also pointed out that this right is enshrined in international human rights treaties that are part of the Colombian constitutional block, especially articles 13 of the American Convention on Human Rights (ACHR) and 19 of the International Covenant on Civil and Political Rights.
When studying the scope and reach of this right, the Court referred to the international case law on this matter. In the case of Claude Reyes v. Chile, the Inter-American Court of Human Rights (IACtHR) held that (i) any limitation to the right of access to information must be established by law, and its interpretation must be restrictive; (ii) these limitations are only valid if they pursue the protection of fundamental rights or constitutionally valuable assets such as national security or defense and the rights of third parties; (iii) the law cannot classify documents or data that by constitutional design fulfill a public purpose, and (iv) in the case of information related to national defense and security, the classification of information is allowed as long as it complies with the principle of proportionality.
The Constitutional Court described the content of the right of access to information as enshrined in Advisory Opinion No. 5 of 1985. In it, the IACtHR argued that freedom of expression entails the right everyone has to receive information. This right can be limited as long as it abides by the terms set forth by article 13.2 of the ACHR, i.e. restrictions are valid as long as they protect the rights or reputation of others, national security, public order, public health, or morals.
Following this, the Court mentioned that in the aforementioned advisory opinion, it was concluded that restrictions to access to information, under the ACHR and the European Convention on Human Rights, must be reasonable, timely, and necessary in the pursuit of the interest they aim to protect, which means they must also be proportional.
In this context, the Court explained extensively the arguments of the IACtHR in the Claude Reyes v. Chile case since the criteria there included developed extensively the right of access to information. The Court held that in this landmark case, access to information was highlighted as an indispensable requisite for the proper functioning of a democracy and to achieve greater transparency within the state. Through this right, the Court noted, it’s possible to exercise oversight of the state’s management.
Referring to the admissible restrictions of this right, the Court said that the Inter-American jurisprudence has understood that these only operate when they are provided by law. The Court emphasized that the word “law” must be understood in a strict sense, and not as any legal norm of inferior hierarchy since this would allow the state to limit the exercise of access to information at its discretion.
In summary, the Court held that the general rule must be granting access to state-held information, in line with the principle of maximum disclosure. However, it mentioned that some information could be classified as long as the law allows it. Nonetheless, this limitation must be motivated, reasonable and proportional.
Upon studying the case at hand, the Court underscored the fact that when prompted by it to explain its decision, the defendant argued that it denied access to the information to protect the right to due process and the presumption of innocence of the public force officers involved. The Ministry also explained that it classified the information due to the ongoing internal investigations on the matter. Furthermore, the Ministry recognized that the names of public officials is public information in principle, but that the plaintiff sought to link these names with human rights violations.
Based on the above information, the Court found that the Ministry of Defense did not justify its decision to refuse the information under the pretense that doing so would pose a risk to national defense or security, as the law allows. The Court then deemed it necessary to analyze if refusing to grant an access to information request to protect the right to due process and the presumption of innocence aligned with the Constitution. In doing so, the Court applied a strict proportionality test.
In the first place, The Court considered that the Ministry’s decision pursued a legitimate objective in accordance with the Constitution since it sought to protect the fundamental right to due process and the presumption of innocence of the members of the public force who were at the time and place specified by the plaintiff. The refusal to provide their names, the Court held, was an adequate way of guaranteeing these rights. However, for the Court, the Ministry’s decision was neither reasonable nor strictly proportional since limiting access to the requested information rendered this right void when pursuing a benefit that could be achieved through less harmful measures.
In addition, the Court noted that the Ministry’s decision entailed an extreme violation of the right of access to information, which in turn affected the right of the victims to truth, justice, reparation, and non-repetition. Regardless of whether the members of the national forces involved in the alleged events are responsible or not, the victims —the Court said— have the right to investigate the circumstances and alleged perpetrators of the crimes of which they were victims.
Regarding the Ministry’s argument in which it justified the classification of the information due to it being part of ongoing investigations, the Court considered the evidence was contradictory. In other documents, for example, it was stated that there were only investigations regarding some of the facts alleged by the plaintiff and that the police claimed there were no internal investigations on the matter.
The Court considered that the classification of information regarding pending investigations does not seek to protect the names of the investigated parties, but rather the proceeding carried out. Moreover, it mentioned too that the jurisprudence has concluded that the divulging of names does not disregard fundamental rights, as long as the police or the media make assertions that correspond to the justice system.
The Court then analyzed whether, given the difficult public order conditions in the region of Urabá, the publication of the requested names could generate a threat to the life and integrity of the members of the national forces involved, considering that the information could be leaked.
Under this hypothesis, the Court stated that the refusal to release the information would have a constitutionally admissible purpose — to guarantee the life and personal integrity of the members of the national forces — and the means used for this —keeping the information confidential— were also adequate.
However, for the Court, even under this hypothesis, the measure was not reasonable and proportional since less harmful measures could be enacted to protect the aforementioned rights, taking into account that the persons whose names were requested belong to the national forces, which means that the institutions to which they work for have the logistical and security conditions to achieve those objectives.
Finally, the Court did not find that the personal integrity or security of the relatives of the members of the nationl forces —whose names were requested by the plaintiff— could be affected since, on the one hand, they can count on special measures for their protection and, on the other, the Court did not have any news about threats or attacks against them.
However, the Tribunal mentioned that in exceptional cases, it is possible to deny information regarding the names of agents of the national forces, when they are members of the civilian corps who live with their families outside the quarters since this could make them very vulnerable. In these cases, the General Commander of the National Police must certify these conditions and justify the decision not to deliver the information.
Once the main legal issue was solved, the Court studied whether this decision contradicted the case law set forth by ruling C-872 of 2003, which held that the evaluation documents of officers and non-commissioned officers of the national forces are confidential. In this regard, the Tribunal pointed out that the 2003 ruling safeguarded the personal data of public officers as well as their job history, while in this case no such information was requested, but rather the names of some officials who were at a specific place and time.
The Court reinforced its argument by mentioning that, according to regulations, members of the public force are required to display their names in a clear way, so that they may be identifiable to the citizens.
In light of the above, the Court decided to protect the right of access to information of San José de Apartado’s Peace Community and, consequently, ordered the Ministry of Defense to deliver the information requested by the plaintiff. The Court also concluded that if the Ministry of Defense considered it pertinent, the delivery of the information could be issued with a clarification that this act is not an indication or recognition regarding the participation of those members of the national forces in criminal activities.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Constitutional Court held that restrictions to access to information are exceptional and must be reasonable and proportional, in line with the principle of maximum disclosure. Although in this case, the Court considered that the right to know the names of members of the civilian corps who live outside public force quarters can be limited —due to the risk this pose to their integrity and their families’— the truth is that this has the purpose of protecting the rights of third parties in extreme cases, which responds to a constitutionally and conventionally admissible purpose. However, in the present case, it did not find that such a situation existed.
On the other hand, as mentioned above, the Court used a methodology that is in line with international standards according to which, for a restriction to the right of access to information to be admissible, it must pass a strict proportionality test.
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.
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