Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Supreme Court of Argentina found that access to information regarding State-owned companies is protected under the right to access public information. An Argentinian citizen lodged an amparo action after their request for a copy of an investment project —signed with a foreign company for the joint exploitation of hydrocarbons in a province of the State— was denied by a State-owned corporation. The Supreme Court of Argentina protected the plaintiff’s right and ordered the defendant to disclose the requested information. For the Court, the information was of public interest and the defendant failed to justify why it considered that the information needed to be kept secret.
A citizen requested from a Public Limited Society, in charge of the exploitation of hydrocarbons in Argentina —and whose capital is mostly State-owned—, a copy of an investment project signed with a foreign company for the joint exploitation of hydrocarbons in a province of the State. The company denied the request.
The citizen filed an amparo action to protect his right to access public information. The judges of the first and second instances denied the protection of the plaintiff’s right. In their opinion, although the corporation has a majority State participation, the decree regulating the right of access to public information does not apply to it, since it is a company regulated by the rules of private law. They added that the disclosure of the requested information could affect “industrial, technical and scientific secrets” of the parties that signed the investment project. Finally, they indicated that the process was carried out without involving the foreign company involved, which affected its right to due process.
The citizen filed an extraordinary federal appeal before the Supreme Court of Justice. The Court decided to revoke the second instance ruling and to grant access to the information requested by the plaintiff. In its opinion, the corporation did not comply with the argumentative burden required to limit the right of access to public information as it has been developed by national and Inter-American jurisprudence.
The Court had to decide whether a corporation with a majority of State-owned capital, in charge of the exploitation of hydrocarbons in the country, has the obligation to provide the public with information related to its activities.
The Court began its analysis by stating that the right to access public information is part of the right to freedom of expression, which is essential for the proper functioning of a democratic state. In this sense, it indicated that “in a democratic society it is essential that State authorities be governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible —subject to a restricted system of exceptions since the actions of the State must be governed by the principles of publicity and transparency in public administration—, which makes it possible for the people under its jurisdiction to exercise democratic control of State actions, so that they can question, inquire and consider whether public functions are being properly carried out” [p. 5]. To support this point, the Court cited Article 13 of the American Convention on Human Rights and the case of Claude Reyes v. Chile of the Inter-American Court of Human Rights.
The Court considered that it was indispensable to discuss the legal nature of the respondent company. The Court stated that the majority of the capital stock was State-owned, headed by the executive branch, which, in principle, indicated that the respondent had the obligations of legal persons under public law. This included ensuring access to public information.
However, the Court noted, the law that created the company established that it would be regulated by the rules of private law and exempted it from the application of the rules of administrative law.
Nonetheless, the Court noted that “it does not seem possible to extend the scope of a provision, clearly aimed at seeking the economic and operational efficiency of the defendant, to the extreme of totally removing it from the obligations to guarantee and respect the right of access to information, which enjoys constitutional and conventional protection […]. This is so because this right entitles any person exercising democratic control of the State’s management so that they can question, inquire and consider whether public functions are being adequately fulfilled. The information does not belong to the State but to the people of the Argentinian Nation” [p. 13].
The Court then held that the law defines the exploitation of hydrocarbons as an activity of public interest, therefore, although the defendant is governed by private law, it is obliged to provide information to the community about its activities.
In the opinion of the Court, by virtue of the principle of maximum disclosure, it is essential that when an entity obliged to provide information refuses to do so, it must prove that this refusal falls under the scope of the exceptions provided by law and “pursue[s] legitimate objectives and [it is] necessary to achieve the purpose pursued” [p. 16].
For the Court, the defendant company failed to indicate and demonstrate which exception justified the denial of the requested information. In its opinion, the answer given to the plaintiff was vague and discretionary. Likewise, the Court considered that it was not acceptable to merely state that the interests of the foreign company that subscribed to the requested document were affected, since the latter, upon contracting with the defendant, should have known the disclosure obligations to which it was subject. Additionally, the Court opined that it was not true, as stated by the second instance judge, that the right to due process of the foreign company had been breached since its participation in the ongoing litigation was not necessary.
For all these reasons, the Court decided to revoke the decision issued by the second instance judge and ordered the defendant to provide the information requested by the plaintiff.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands the right to freedom of expression by applying international standards on access to information to mixed-economy companies or companies with State capital stock —regulated by private law. In this sense, it extends the application of transparency and access obligations to companies with public capital that, nevertheless, carry out activities of general interest. Finally, based on international norms and jurisprudence, the decision applies the specific rules regarding the principle of maximum disclosure, especially those related to the application of exceptions and justifications to limit access to information requests.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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