Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Mixed Outcome
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The Constitutional Court of Columbia held that documents pertaining to the evaluation and qualification of officers in the Armed Forces were legally confidential, and hence restricting their release is a constitutionally permissible exception to the right to public access to information. However, it stated that withholding decisions of the Classification Board is unconstitutional. The Court emphasized the importance of the guarantee of public access to government-held information, with limited exceptions established by law providing they protect a constitutionally legitimate aim like national security or the enjoyment of fundamental rights, and the measures are proportionate and necessary.
This case analysis was contributed by Right2Info.org.
Alirio Uribe Munoz, a Colombian citizen, challenged the constitutionality of Articles 27 and 42 of Decree 1799 of 2000, which provide rules concerning the evaluation and qualification of officers and NCOs in the Armed Forces. The rules restrict public access to internal discussions and final decisions of military evaluation and promotions boards and the Classification Board. Article 27 states that the evaluation documents prepared by the evaluating and reviewing authorities that contain information and value judgments about personal and professional details of officers is confidential except between parties involved in the process. Article 42 states that the Classification Board’s meetings and decisions made in them are restricted, as are documents that contain them.
Mr. Munoz claimed that the rules restricted his fundamental right of access to public documents, violating statutory disclosure requirements, and constitutional principles of participatory democracy, advertising, and access to public documents. He asserted that the rules facilitate impunity because they allow the same officers and military personal that perpetuated human rights violations to evaluate and promote officers and classify incriminating documents.
The Court held that Article 27 and part of Article 42 of Decree 1799 of 2000 are constitutionally permissible exceptions to the right of public access to information elaborated in Article 74. The Court, however, determined that the statutory provision in Article 42 withholding decisions of the Classification Board is unconstitutional.
The Court emphasized the importance of the guarantee of public access to government-held information, with limited exceptions established by law. The Court recognized the State’s positive and negative obligations vis-à-vis the right to information: the State cannot censor information, and must also actively provide information. The Court elaborated that participatory democracy is a fundamental component of the Colombian Constitution, and historically linked to the constitutional right to information.
Aside from the Constitution, the Court cited Article 13.1 of the American Convention on Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Principle 4 of the Declaration of Principles on Freedom of Expression, soft law and the Inter-American Commission’s Special Rapporteur for guidance. Part VII(3).
The Court acknowledged the close linkage in international human rights and humanitarian law between the right to access public documents and the rights of victims of crimes against humanity, and the rights of justice, reparations and “especially, to know the truth.” The Court emphasized that the right to truth is a “collective right” and, as such, requires certain guarantees for its exercise including, especially, “the conservation and public consultation of relevant official archives.” Thus, measures should be taken to prevent the destruction, adulteration, or falsification of archives where violations are committed and the State “cannot invoke confidentiality or reasons of national defense to avoid” access to records for judicial processes or victims. Part VII(3).
The Court stated that international human rights and humanitarian law serve as criteria for interpreting the rights and duties enshrined in the Constitution and are based on the basic principle that everyone has the right to seek, receive and impart information of all kinds.
Nonetheless, the Court concluded that the President’s exercise of legislative power through Decree 1799 establishing exceptions was constitutional, provided that restrictions protect a constitutionally legitimate aim like national security or the enjoyment of fundamental rights, and measures are proportionate and necessary.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression to the extent that it acknowledges the public’s right to information subject to limited exceptions such as national security and the enjoyment of fundamental individual rights such as privacy. However, the decision also contracts expression by restricting the public’s access to information relating to the process by which members of the Armed Forces are evaluated.
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.
The Constitutional Court of Colombia is the final appellate court for matters involving interpretation of the Constitution with the power to determine the constitutionality of laws, acts, and statutes within its jurisdiction.
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