Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Expands Expression
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The Constitutional Court of Guatemala unequivocally upheld an appellate decision to order the Ministry of National Defense to release four military operational plans to the prosecution concerning the genocide trial of the former military dictator José Efraín Ríos Montt. Lawyers for Ríos Montt challenged the constitutionality of the lower court decision and the Ministry of National Defense intervened as a third party to assert that the documents constituted “state secrets” protected from disclosure under the exemption in Article 30 of the Constitution. The Constitutional Court found the appeal frivolous and unfounded, and hence ordered disclosure of the plans as well as held the defendant liable for costs and a fine.
This case analysis was contributed by Right2Info.org.
Article 30 of Guatemala’s Constitution guarantees the right of the public to access information held by the state “except when military or diplomatic matters relating to national security or information supplied by individuals under the pledge of confidence is involved.”
The Guatemalan Constitutional Court has interpreted the scope of the Article 30 exemptions to disclosure at least twice. A 2005 advisory opinion (No. 2819-2004) provides a narrow interpretation of the exemption which allows withholding for “military or diplomatic matters relating to national security”. The Opinion was issued at the request of the President of the Congress who was interested in an interpretation of whether the military secrets exemption applied to military purchases and contracts. The Court rejected such a broad reading of the exemption. It said that legitimate withholding only applied to information that was part of “state policy” directed “to preserve the physical integrity of the nation and its territory, with the aim of protecting state elements from aggression from foreign or domestic belligerents.” (“El alcance de dicha excepción es para aquella información que es parte de la política del Estado encaminada a preservar la integridad física de la Nación y de su territorio, con el fin de proteger a los elementos conformantes del Estado de cualquier agresión de parte de grupos extranjeros beligerantes.”) The advisory opinion also recognized that an assertion of national security secrecy, or some other form of confidentiality, requires the presentation of some proof. (“…ha enfatizado que las autoridades al negarse a exhibir documentos públicos arguyendo que su naturaleza es de seguridad nacional o confidencial, deben, imperativamente, acreditar tal extreme …”).
The Constitutional Court unequivocally upheld an appellate decision recognizing the authority of a trial court judge to order the Ministry of National Defense to release four military operational plans to the prosecution in the genocide trial of José Efraín Ríos Montt (No. 2290-2007). Lawyers for Ríos Montt, the former military dictator, had filed an amparo challenging the constitutionality of a lower court decision authorizing the prosecution to access certified copies of four military operational plans – Plan Victoria 82, Plan Sofia, Firmeza 83, and Operación Ixil. Ríos Montt rested his argument in part on the classification authority elaborated in the Ministry of National Defense Agreement 6-2005. The Ministry of National Defense for its part intervened as a third party to assert that the documents constituted “state secrets” protected from disclosure under the exemption in Article 30 of the Constitution. The Constitutional Court, finding the amparo and the appeal frivolous and unfounded, upheld the lower court’s order of disclosure and ordered payment of both costs and a fine. (“…[N]o se acreditó que los documentos cuya exhibición se solicitó tengan la categoría de seguridad nacional…”).
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