Access to Public Information
Company Doe v. Public Citizen
Closed Expands Expression
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The Criminal Court of Appeals of Paraguay ordered the Office of the General Comptroller of the Republic (CGR) to deliver information regarding the affidavits of assets and income of public officials from the Executive and Legislative branches, and their families, thus protecting the right of access to information. A citizen filed a request before the CGR to access the aforementioned information. The request was denied by the CGR who considered that to deliver this information, the owner of the data had to consent to it. The Court found that the refusal to provide the information was a violation to the right of access to public information that inhibits citizen oversight on the efficiency of public duties since no law allowed this information to be considered as classified or private.
Juan Lezcano filed an amparo action against the Office of the General Comptroller of the Republic (CGR) since this authority refused to provide the requested information —i.e. affidavits on the assets, income, and liabilities of several public officials from the Executive and Legislative branches, and their relatives. On May 8, 2018, the Fourth Criminal Judge of Guarantees issued a ruling, granting the amparo filed by Lezcano and ordering the delivery of the information. Mr. Ricardo Rojas, the representative of the Comptroller’s Office, appealed the decision.
The representative of the CGR argued that the referred decision should be revoked as it applied a general law, such as Law No. 5282 of 2014, to a matter that has been specifically regulated in Law No. 5033 of 2013. This law establishes that to freely consult the affidavits of public servants, one must have the express authorization of the owner of the information (the declarant) and that it must be granted through a jurisdictional body. According to the appellant, the decision did not take into account that these documents are not related to the public nature of the duties exercised by civil servants, so they are, according to the CGR, private documents. The same is true, to a greater extent, regarding the documents of the public officials’ relatives.
The appellant considered that, since both Law 5282 of 2014 and Law 5033 of 2013 were in force, their application could not be avoided.
For Lezcano, the Comptroller failed to understand that the information concerning the income of officials could serve to detect possible illicit enrichments, a matter of public interest.
The Court of Criminal Appeals of Paraguay had to decide whether the information provided by public officials to a public authority, within the framework of their legal duty to declare their income, assets, and liabilities, is of a private nature or whether it is governed by the parameters of public information.
In the Court’s opinion, there was no doubt that the information requested by Lezcano is public by nature for two fundamental reasons. The first, by virtue of the public nature of both actors involved in its production and custody, and the second, and more important one, by virtue of the absence of an express legal provision authorizing the treatment of such information as classified.
Thus, the Court held that “the [affidavits] are not private or classified information because there is no law that authorizes to treat them as such. Since they do not have that status, they are —contrario sensu— public by nature, and since they are public, citizens must have access to them whenever they so request” [p. 10]. Covered by this general mandate of transparency —according to the Court— is the information regarding the assets that make up the marital family of public officials and the assets of their children under parental authority.
Therefore, the Court upheld the first instance decision and ordered the CGR to deliver the information requested by Lezcano including too the data on the assets that make up the marital family and the assets of children administered by public servants by virtue of their guardianship over them.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands access to information, especially because it marks a milestone in the access that any Paraguayan citizen could have had, between 1998 and 2017, to information about public officials who hold or held those positions at some point in that period, and that the same control bodies considered private in the past. With this decision, the access to information dimension of freedom of expression advances significantly, since it strengthens the role of citizen oversight in public matters.
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