Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Constitutional Chamber of the Supreme Court of Costa Rica ordered the Ministry of Environment and Energy (MINAE) to provide information regarding the topographic profiles of a waterway in the public domain. The MINAE rejected an access to information request —requiring the aforementioned information and submitted by the plaintiff— arguing that, among other reasons, the information was confidential since its disclosure could violate the intellectual property of the mining concession that obtained the information. The MINAE also held that the information deemed confidential could be used by third parties with fraudulent purposes or misinterpreted. The Court, abiding by the principle of maximum disclosure in environmental manners, as set by several international instruments —especially Advisory Opinion OC- 23 by the IACtHR—, considered that in the case at hand no reason justified keeping the information classified. On the contrary, the Court held that the information was public and granted access to it.
Mr. Marco Levy Virgo filed an access to information request before the Costa Rican Ministry of Environment and Energy (MINAE), requiring the topographic profiles of a public waterway to verify the degree of compliance with the rate of authorized extraction of materials on the property and determine whether the property was overexploited. The MINAE rejected the request arguing that the required information was confidential.
In light of this, Levy Virgo filed a writ of amparo before the Constitutional Chamber of the Supreme Court of Justice, to obtain the requested information from the MINAE.
The Supreme Court of Justice of Costa Rica granted the writ to Mr. Marcos Levy Virgo and ordered the delivery of the requested information within fifteen days after the notification of the decision.
The Constitutional Chamber of the Supreme Court of Justice of Costa Rica had to determine whether the non-delivery of information —about the comparative topographic profiles of a waterway in the public domain— to a citizen, after the request was duly submitted to the corresponding governmental authority —who argued the information was confidential—, was a violation of the fundamental right of access to public information.
The plaintiff argued that the decision issued by the MINAE — to not deliver the required information— was a violation of his fundamental rights, particularly his right of access to information, given that the requested information consists of topographic information from a mining concession, and, therefore, was public.
The Director of Geology and Mines of the MINAE (the defendant) held under oath that the requested information was confidential due to the nature of the data it contains. For the defendant, the requested information can only be analyzed in a technical manner by a professional. It also claimed that the information could be misinterpreted by third parties and the data could be used by ghost companies for fraudulent purposes. Finally, the MINAE argued that disclosing the information could breach the intellectual property rights of the concession company that obtained the information in the first place.
Faced with these claims, the Court highlighted several international instruments —especially Advisory Opinion OC-23 of the IACtHR—regarding access to information on environmental issues.
The Court mentioned that, according to the precedent laid out by the IACtHR in the case of Claude Reyes v. Chile, access to information is an instrumental right connected to freedom of expression. Similarly, this right also requires the state to be transparent, provide and divulge information under its custody, and deny it only under exceptional —and properly justified— circumstances.
Subsequently, the Court also cited the document “Access to information, participation and justice in environmental matters in Latin America and the Caribbean”. In it, the Economic Commission for Latin America and the Caribbean argues that access to information on environmental matters is a key tool for good governance and holding accountable the state, which in turn guarantees citizen oversight and participation. As such, restrictions to these requests must be strictly necessary.
The Court noted, that Advisory Opinion OC-23 of the IACtHR established a principle of maximum disclosure regarding access to information requests on environmental matters. Thus, the state is obliged to provide this type of information without delay, and in a simple and accessible way, in order to guarantee not only the right of access to information, but other related rights that are affected by the environment —such as life, health property, among others— and that usually affect the most vulnerable groups of society.
In light of this legal framework, the Court analyzed the specific case, especially if there was any reason that justified the confidentiality of the information requested.
Regarding the argument held by the defendant about the technical nature of the information, whose analysis can only be undertaken by a professional, the Court considered this to be irrelevant. What a layman can conclude or infer from the information, is unrelated to what the law understands to be a justifiable limitation, provided by law, to access information. The Court also considered the possibility of the information being misinterpreted to be irrelevant in legal terms, since this isn’t either a proper justification to limit the right of access to information.
The Tribunal also argued that the fraudulent use that ghost companies can make with the information requested shouldn’t limit the aforementioned right. Regarding the intellectual property rights of the concession that obtained the information, the Court considered there was no breach of them, since the information had already been divulged by being part of a concession file presented to the Directorate of Geology and Mines. Furthermore, as set by the Mining Code, by principle information present in case files is public by nature, thus its access can not be restricted.
For the reason explained above, the Court concluded that the requested information was not confidential. Considering the principle of maximum disclosure, the Court ordered the MINAE to deliver the information requested by the plaintiff within a term of fifteen days.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Supreme Court of Costa Rica issued an important precedent regarding the public nature of information on environmental matters and the exceptional circumstances under which that access can be restricted. By reaffirming the principle of maximum disclosure, the Court underscored several key international human rights instruments on the protection not only of freedom of expression but other related rights that depend upon the possibility of holding the state accountable and demanding more transparency and that guarantee public oversight and participation regarding pressing environmental issues.
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