Case Summary and Outcome

The Argentine Supreme Court reverted the lower courts’ rulings refusing to grant congressman Giustiniani’s to access information about a contract with a public oil-producer. The Court deemed  public interest, the contract for exploitation of non-conventional gas and oil deposits between a state-owned enterprise, Y.P.F. S.A., and the Chevron Corporation.

Facts

The Chevron Corporation and the Argentinian state-owned Y.P.F. S.A. signed a contract for the exploitation of non-conventional gas and oil deposits in the Argentine Province of Neuquen. Concerned about the environmental impact and nature of the activities to be conducted, congressman Giustiniani requested Y.P.F. S.A. to make this contract public. When denied the information, Giustiniani filed a case against the company, which was decided in favor of the defendant, both on first instance and before the appellate court.

The justices decided in Y.P.F. S.A.’s favor for the following four reasons. First, the decree 1172/03, which regulates access to public information, did not reach Y.P.F., since Article 15 of the law 26.741, which transferred the company’s control over to the state, specifically excused it from being subject to administrative legislation. Second, even if it were decided that the norm reached the company, to grant access to the information requested could compromise industrial, technical and scientific secrets. Third, the environmental laws, 25.675 and 25.831, upon which Giustiniani’s request for information was based, admitted an exception in cases where industrial or commercial secrets could be affected. Finally, the case had been carried out without the participation of Chevron, which could affect its right to due process.

Thus, the case reached the Supreme Court, which reverted the previous rulings and contested each of the aforementioned arguments.

Decision Overview

The Supreme Court commenced its reasoning by highlighting the importance of the right to information, citing both the Inter-American Commission on Human Rights (“ICmHR”) and the Inter-American Court of Human Rights (“ICtHR”), which provided that the people have a right to access information held by the state and the state has an obligation to provide it, or provide a founded reason for its refusal.

The Supreme Court noted that, according to the ICtHR in the Claude Reyes case, such information should be provided without the need to provide a motive for its request or to prove a direct personal interest in the matter. The quote continued to include the regional court’s argument that, in a democratic society, state authorities should be guided by the principle of maximum disclosure and the state’s actions should be guided by the principles of transparency and publicity. There should be a presumption of accessibility to state held information, so that subjects under its jurisdiction can democratically exercise control over public actions.

The Supreme Court proceeded to analyze whether Y.P.F. S.A. should be considered among the subjects obligated to provide information falling within the scope of decree 1172/03 regarding access to public information for the executive branch. In its analysis, the Supreme Court reviewed law 26.741, which declared Y.P.F.’s activities as of public interest, authorized the government’s control of the company by granting the national government 51% of its patrimony and 49% for the industry’s involved provinces. The state proceeded to exercise its control in actuality, being in charge of substantial political decisions and appointing Y.P.F.’s authorities. The Court found, without hesitation, that Y.P.F. fell amongst the subjects obliged to provide information according to decree 1172/03. The justices even went beyond this finding to argue that, according to the Court’s precedent in the Asociación Derechos Civiles case (Fallos: 335:2393), even if the company was not state-owned, if its activities involved matters of public interest, the privately owned entity would still be obliged to provide the information in question. Because the company’s activities were considered of public interest by the law that expropriated the company to the state, Y.P.F.’s actions regarding its contract with Chevron was also of public interest.

Continuing to answer to the lower court’s arguments, the Supreme Court examined the provision on law 26.741 which excused Y.P.F. from being subject to administrative legislation. The justices explained that new forms of legal entities were being created, which fell under the rule of private and public legislation, in order to allow, as in this case, the efficient functioning of their activities without the foreseeable obstacles of administrative law. However, the Court pointed out, it did not seem possible to extend this flexibility to excuse these entities from their constitutional and conventional obligations.

Turning to the government’s argument that industrial, technical or scientific secrets could be compromised, the Court cited its own precedents as well as the ICtHR in finding that, although the right to access information could be restricted in certain cases, such restrictions should be truly exceptional, pursuant to a legitimate objective, and necessary to reach that legitimate objective. Therefore, a secret contract could only be justified to protect a public interest equally important to the public’s interest in accessing the information.

To ensure that the principle of maximum exposure is safeguarded, those who are obliged to provide the information and refuse to do so bear the burden of providing a detailed explanation as to how the public interest would be endangered by exposure of the information in question. In this case, the justices pointed out that Y.P.F. only cited the existence of these exceptions, but never provided its reasoning for denial.

Finally, decree 1172/03 establishes who is obligated to provide public information. Given that a legal claim against the refusal of such information should be directed against the passive subject of that obligation, the Court determined that Chevron did not need to be included in the proceedings; even more so, the Court found that Chevron knew, or should have known, the legal obligations that concerned its partner.

Based on the arguments mentioned above, the Supreme Court granted the request for access to public information.

In a dissenting opinion, Justice Highton de Nolasco decided against the admissibility of the claim, arguing that Chevron should have been involved in the proceedings.

Since this decision, throughout the months of February and March 2016, a series of events have affected the decision’s consequences. Even though the Supreme Court ordered that the contract be made public, the contract has been handed over to the justice but has not been made available to the public by the judge.  The government’s Anti-corruption Office has also allowed Y.P.F. to keep certain parts of the contract secret, understanding that they contain industrial and scientific secrets. The plaintiff has voiced complaints to the media. These updates have been collected from the following news articles:

• El Gobierno autorizó mantener en secreto partes del acuerdo YPF-Chevron, com, March 8th, 2016, available at: http://www.infobae.com/2016/03/08/1795729-el-gobierno-autorizo-mantener-secreto-partes-del-acuerdo-ypf-chevron
• Una jueza se negó a revelar claúsulas secretas del contrato entre YPF y Chevron, com, February 29, 2016, available at: http://www.perfil.com/politica/Contra-un-fallo-de-la-Corte-una-jueza-se-nego-a-revelar-las-clausulas-secretas-del-contrato-entre-YPF-Chevron-20160229-0005.html

On March 15, judge Carrión de Lorenzo, ordered Y.P.F. to provide the contract in its entirety, as to follow properly the Supreme Court decision, and giving the company 5 business days to do so.

• Fernandez Blanco, Pablo, Desafío judicial al Gobierno: ordenan revelar el contrato de YPF con Chevron, La Nacion, March 15, 2016, available at:
  http://www.lanacion.com.ar/1879781-desafio-judicial-al-gobierno-ordenan-revelar-el-contrato-de-ypf-con-chevron

On March 16, Y.P.F.’s board of directors, with the exception of president and CEO Miguel Galuccio who was in favor of full disclosure, decided to deny the revealing of the contract and will appeal the judge’s order.

• Fernandez Blanco, Pablo, Por orden del Gobierno, YPF se niega a mostrar el polémico contrato con Chevron, La Nacion, March 16, 2016, available at:
  http://www.lanacion.com.ar/1880324-por-orden-del-gobierno-ypf-se-niega-a-mostrar-el-polemico-contrato-con-chevron