Case Summary and Outcome

The Agency for Access to Public Information (AAIP) ordered the Ministry of Social Development to grant the plaintiff access to information regarding the process and background information on a resolution that authorized the emergency public procurement of semolina noodles and awarded the contracts to several companies. Mr. Marco Benetti requested a copy of an electronic file that contained background and procedural information about a resolution that authorized the procurement of One Million Seven Hundred Thousand (1,700,000) units of semolina noodles and awarded the contracts to several companies. The Ministry denied access to the information, arguing that it was an internal administrative document of classified nature, without any further explanation. The Agency determined that a public entity could not respond to an access to information request simply by stating that the information was classified. For the Court, limiting the right of access to information required a proper justification. Since the Ministry failed to explain the reasons behind the request’s denial, the AAIP concluded that this breached the plaintiff’s right of access to information.

Facts

On April 6, 2020, Mr.  Marco Benetti filed an access to public information request before Argentina’s Ministry of Social Development, requiring “a copy of the Electronic Case File No. EX-2020-18518774-APN-DCYC#MDS, background for the issuance of Resolution No. 152/2020 (RESOL2020-152-APN-MDS) published by the Ministry in the Official Gazette on 04/06/2020” [p. 1].

This resolution authorized the emergency procurement of One Million Seven Hundred Thousand (1,700,000) units of semolina noodles of 500 grams each, requested by the Secretariat of Social Policy Articulation” and awarded this contracts to several companies, thus authorizing a total expenditure of eighty-six million five hundred and forty thousand two hundred (86,540,200) Argentinian pesos.

On May 22, 2020, the General Director of the Administration of the Ministry of Social Development denied the request, arguing that the required file regarded an emergency procurement process related to Covid-19 and was classified—and provided no further explanation. 

On May 22, 2020, the petitioner lodged a claim before the AAIP, arguing that the Ministry’s denial breached his right of access to information.

Decision Overview

The Agency for Access to Public Information had to determine whether the classified nature of the file requested by the plaintiff was duly justified by the Ministry of Social Development, or if this Ministry issued an unjustified denial to access public information. 

The AAIP considered that the Ministry failed to provide any justification as to why the requested file was classified. In accordance with Law No. 27.275, Article 13, Paragraph 3, in the context of access to information requests—the AAIP noted—, the silence, ambiguity, inaccuracy, or incomplete delivery of information provided by an authority, is considered “an unjustified refusal to provide the information” [p. 2]. 

Moreover, to further this point, the AAIP highlighted that under the Inter-American Model Law on Access to Public Information AG/RES. 2607 (XL-O/10), public entities have the obligation to justify and fully explain the reason why any information cannot be delivered, and that the burden of proving an exception to limit the right of access to information falls on the authority.

Additionally, the Agency referred to the Inter-American Court of Human Rights in the case of Claude Reyes v. Chile, to underscore the fact that access to information refusals must be in written form and include the reasons that justify the decision. 

The AAIP also mentioned the “Recommendations to strengthen the integrity and transparency in public contracts held in the framework of the Covid-19 emergency” by the Anti-Corruption Office. This report highlights the need to take extreme measures aimed at guaranteeing the divulgation and public access of the files through which emergency contracts are processed. To strengthen the divulgation of this information, the report also recommended the state to proactively publish information referring to procurement processes —including audit reports and budget execution information—, to guarantee transparency on behalf of the government.

Therefore, the Agency, in light of this legal framework, ruled in favor of Mr. Lisandro Marco Benetti, having found no legal support that justified the classification of the information requested by the plaintiff. On the contrary, the AAIP concluded that the information was public by nature and should have been duly submitted. The Agency decided that, within ten (10) business days, the requested information should be made available to the interested party by the Ministry of Social Development.