Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Constitutional Chamber of the Supreme Court of Costa Rica protected the right of access to public information of Mr. Marcos Levy Virgo by ordering the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation to provide information about regulations on the use of pesticides for spraying agricultural lands. Levy Virgo lodged an access to information request before the Ministry of Agriculture and Livestock of Costa Rica —requiring information on pesticides for agricultural crops and their regulations— which was answered by the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation. In its response, the authority failed to provide the required documents without any explanation. Levy Virgo considered this breached his right of access to information and filed a writ of amparo before the Supreme Court. In its analysis, the Court held that public authorities were obligated to provide or disclose requested information about environmental matters under the principle of maximum disclosure and active transparency.
In April 2021, Mr. Marcos Levy Virgo submitted a request requiring environmental information to the Ministry of Agriculture and Livestock of Costa Rica. Through this request, he publicly denounced an environmental and sanitary problem related to the use of toxic agrochemicals, and requested a “comprehensive copy of the protocols used in the reform of Article 70 of Executive Decree No. 3l520-MS-MAG-MS-AG-MOPT-MGSP” —which regulates activities concerning agricultural aviation—, as well as “the edicts and all endorsements and observations made to the new reform of Article 70, raised at the behest of the official letter DR-HC-3580-2015 of 9/12/2015.”
On May 17, 2021, the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation issued a response in which Levy Burgos was informed about the process of reform of the regulations, but the requested documents were not disclosed.
In light of this situation, the petitioner filed a writ of amparo —against the Ministry of Agriculture and Livestock and the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation— to protect his fundamental right of access to information
The Constitutional Chamber of the Supreme Court of Costa Rica, after having analyzed the arguments presented by the parties, issued a favorable decision for the plaintiff ordering the delivery of the missing information within eight days.
The Constitutional Chamber of the Supreme Court of Costa Rica had to determine whether the non-delivery of the requested information —concerning regulations on the use of pesticides for spraying agricultural crops— was a violation of the appellant’s fundamental right of access to information.
To do so, the Court relied on its jurisprudence about confidential information and the international principle of maximum disclosure and active transparency.
The Court began its analysis by stating that as a matter of fact, the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation did not deliver the information requested by the plaintiff and failed to provide any explanation as to why — although it informed Levy Virgo about the reform process of the regulations on agricultural aviation. Thus, the Tribunal concluded that there was no reason to infer that the required information was confidential.
Subsequently, the Court referred to the case law it established in judgment No. 018020355 of December 7, 2018. In it, the Court highlighted principle 32 of the United Nations Conference on the Human Environment (Stockholm) which established that “Everyone, in accordance with national legislation, shall have, the opportunity to participate, individually or collectively, in the process of preparation of decisions directly concerning their environment.”
Furthermore, the Court also underscored the importance of Article 10 of the 1992 Rio Declaration on Environment and Development, which states that “Environmental issues are best handled with the participation of all concerned citizens, at the appropriate level. At the national level, everyone should have adequate access to environmental information held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States should facilitate and encourage public awareness and participation by making information available to all people.”
Following the precedent laid out in the case Claude Reyes v. Chile (ICtHR), the Court held that access to information is instrumental to the exercise of freedom of expression and as such it benefits from international protection. Similarly, the Court argued that environmental information is especially important, due to the collective interest in environmental issues. Thus, the State has an obligation not only to provide it upon request but to actively divulge it in an accessible way. This also entails that access to information requests regarding environmental matters can only be denied under exceptional and strictly necessary circumstances.
To reinforce this point, the Court cited Advisory Opinion OC-23 by the ICtHR, which established the principle of maximum disclosure regarding environmental issues. In this advisory opinion, extensively quoted by the Court, the ICtHR held that environmental issues can affect rights such as life, integrity, private life, housing, cultural life, property, and health among many others. The international tribunal also recognized the special degree to which already vulnerable groups can be affected by the environment. Following this argument, the ICtHR considered that access to information about environmental issues is key to fostering transparency and citizen oversight, and thus the State is obligated to provide in an easily accessible way all information concerning these issues. Denying this type of information, following the reasoning set forth by the ICtHR and the principle of maximum transparency, must be exceptional and properly justified.
In light of this legal framework, the Supreme Court granted the amparo filed by Levy Virgo, considering that the information requested concerned environmental matters and there was no reason to consider it confidential. The Court ordered the Advisory Commission for the Regulation and Control of Activities regarding Agricultural Aviation to provide within eight days the information requested by the plaintiff.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Through this decision, the Supreme Court of Costa Rica expanded freedom of expression by providing robust protection of the right to access information on environmental matters. Following the principle of maximum disclosure, the Court highlighted the relevance this information entails for society —especially marginalized communities— and fostered citizen oversight and State transparency.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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