Case Summary and Outcome

The Agency for Access to Public Information (AAIP) ordered the Ministry of Defense to deliver information that had been classified as secret by a military dictatorship 55 years earlier. The Agency held that the Ministry of Defense violated the petitioner’s right of access to information based on a generic or excessively broad legal norm that contravened international standards on the matter. The petitioner Guillermo Domingo Alonso requested a copy of Resolution No. 227 of May 15, 1970, issued by the Ministry of National Defense in the context of a military government. The Ministry denied the request to release the document because it was of a confidential nature, thus constituting one of the exceptions to the obligation to provide the information. The Agency held that the Ministry of Defense’s denial violated the Law on Access to Public Information and international standards for having classified as restricted information for an unreasonable period of 55 years. Furthermore, it held that the Ministry used an excessively broad and generic standard without explaining the necessity and proportionality of its refusal to provide the resolution requested by the petitioner. 

Facts

On October 1, 2021, Mr. Alonso made a request for public information before the Ministry of National Defense (MD) by which he requested a copy of Resolution No. 227 of May 15, 1970, of the Ministry of National Defense. Subsequently, on October 12, 2021, the Ministry of Defense denied the delivery of the requested document, arguing that it was of a confidential nature and therefore one of the exceptions to the obligation to provide the information pursuant to Article 8 of Law 27.275 was configured. Reacting to the denial, on October 22, 2021, the applicant filed a claim before the AAIP.  

 The MD replied again denying the request and cited the exceptions of Law 27.275 on access to public information. Firstly, it referred to Article 8 subsection A which stipulated the confidential nature of information expressly classified as restricted or confidential or secret, for defense or foreign policy reasons. Secondly, Article 8, paragraph D, which mentioned information that compromises the rights or legitimate interests of a third party obtained confidentially. Finally, it mentioned Decree 9390/63 which explained that only information and documentation related to the actions of the armed forces during the period between 1976 and 1983 would be relieved from security classification and the requested information was from 1970. They also argued that the declassification process, by which they make public what is classified as secret or reserved, is not simple, nor can it be done by a simple request for access to information.

 Consequently, on October 22, 2021, the petitioner filed an appeal before the Agency for Access to Public Information on the grounds that the MD violated his right of access to information by denying his request. 

Decision Overview

 The Agency for Access to Public Information had to decide whether the refusal of the Ministry of Defense to allow the petitioner access to Resolution No. 227 of May 15, 1970, was justified by the legal exceptions to access to information under Argentina’s national norms and international obligations. The Agency ruled in favor of Mr. Guillermo Domingo Alonso, in the sense that the Ministry of National Defense should make available to him a copy of Resolution No. 227 of May 15, 1970, duly requested. It also established that failure to do so would violate the right of access to public information and different national and international standards that regulate the matter. 

 To solve the case, the Agency established that the argumentation of the MD to deny the request was deficient because they intended to protect the confidentiality of the regulations requested using a Decree from 1963, which is difficult or impossible to access, and it is not even published on the website of the Ministry. In addition to the above, for the AAIP, the classification of information should have a reasonable period of reserve and the declassification of such information would be public when the causes that originated it expired. In this case, the classification period expired, which could not exceed in any case 10 years and could not be classified indefinitely. 

 The MD relied on a rule that restricts information in a generic manner and without duly demonstrating what grounds exist to date for such a situation to be maintained after more than 50 years have elapsed since the creation of the document in question. Additionally, in Resolution No. 119/2019 of the Agency, it was established that no information may be kept restricted for more than thirty (30) years from the date of creation of the information [Resolution No. 119/2019]. 

 The AAIP cited Article 13 of Law 27,275, insofar as it established that the lack of grounds for the act that denied the request for access to information will determine its nullity and will force the delivery of the requested information. The mere invocation of an exception by the obligated subject, without a detailed justification, should be considered as an unjustified refusal. The Agency cited the Supreme Court of Justice of the Nation, which in its jurisprudence held that “the mere citation, dogmatic and abstract, of general rules that enable exceptions cannot be considered sufficient as an answer” [Savoia, Claudio Martin v. EN – Secretaría Legal y Técnica]. It also referred to the Inter-American Court of Human Rights, which in the Claude Reyes v. Chile case decision held that a request for access to public information could only be denied by means of a written decision, duly grounded, which would make it possible to know the reasons and rules on which it is based for not providing the information [IACHR, “Claude Reyes” case, paragraphs 77 and 158].

 The Agency also cited the Special Rapporteur for Freedom of Expression, which explained that when public authorities resort to a restriction based on national security grounds, it is neither sufficient nor conclusive to simply assert that there is a risk of harm, but rather they must provide specific and substantial reasons to support their assertions. In this case, there was a legitimate objective, but it was explained in a generic way, and it was not demonstrated the existence of a threat of causing substantial harm to that legitimate objective nor that the harm to the objective is greater than the public interest in having the information. 

 In the same sense, the Agency made a reference to Principle 16 of the Tshwane Principles, which stated “(…) (a) Information may be classified for national security reasons only for such period as is necessary to protect a legitimate national security interest. The decision not to disclose certain information should be reviewed periodically to ensure compliance with this Principle; (b) The person determining classification should indicate the date and conditions or event by virtue of which classification will cease; (c) No information may be classified indefinitely. The maximum period of classification for reasons of national security shall be fixed by law; (d) Information may be classified for a period longer than the estimated period only in exceptional circumstances pursuant to a new classification decision, considered by another decision-maker, and a new maximum period shall be fixed” (Tshwane Principles) [p.3]. 

 The AAPI also interpreted the concept of national security in line with Article 32 of the Inter-American Convention of Human Rights. It also used the Model Inter-American Law on Access to Public Information to ensure that when classifying, restricting, or deciding the confidentiality of information, obligated entities must perform an individual and casuistic operation applying a harm test in which it is demonstrated that the disclosure of the requested information could generate real, demonstrable, and identifiable harm. Additionally, Article 36 established that the obligated subject, when invoking a confidentiality ground, must carry out a public interest test based on elements of suitability, necessity, and proportionality, when there is a collision of rights. 

 The decision also referred to the Johannesburg principles (Article XIX, 1996) that established the requirements to eliminate the freedoms of opinion, expression, and information for reasons of national security. For the restriction to be legitimate, it must be demonstrated that the disclosure constitutes a threat of causing substantial harm to the objective pursued by reason of national security and that the harm to such objective must be greater than the public interest in having the information available. At the regional level, it cited the Uruguayan Access to Public Information Unit and the Classification Guide, which established among its requirements that the harm caused by the disclosure of the information must be greater than the public interest in the information. 

 In response to the MD’s argument that the citizen should have previously requested a procedure to declassify the information, the AAIP stated that the formal requirements should be minimal and that in conjunction with the principle of good faith and maximum disclosure, the authorities that process requests for information from the obligated subject should have initiated such procedure ex officio. It added that the simple fact of not having requested the declassification of information created more than 50 years ago does nothing more than create an obstacle to effective access to public information. 

 Finally, it was concluded that the MD’s response and its argumentation were contrary to national laws and jurisprudence as well as international standards so within ten (10) business days the interested party should be provided with the information requested to guarantee their right to access to public information.