Access to Public Information, Press Freedom
Cape Town v. South African National Roads Authority Limited (SANRAL)
Closed Expands Expression
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The Supreme Court of Costa Rica protected the right of access to information by ordering the Ministry of Health to deliver to two journalists information regarding a clandestine garbage dump near Finca Las Anima, in the La Carpio region. The case was heard by the Court after Ms. Solano’s information request was denied because there was a pending criminal investigation on the matter that prevented the data to be disclosed. The Court ruled in favor of the plaintiffs after considering that the entity’s refusal constituted a violation of the right of access to public information.
On June 12, 2017, Ms. Adriana Solano, a journalist for the digital newspaper El Mundo Costa Rica, requested from the Ministry of Health information to conduct an investigation on a clandestine garbage dump. The entity indicated that this information could not be disclosed because there was a pending criminal investigation on the matter. Thus, it argued, until the judgment was published, the information could not be made available to the public. The Ministry added that the documents containing the requested information were in the hands of the Attorney General’s Office and the Environmental Administrative Court, and, since Mrs. Solano was not a party of the litigation process, she was not allowed to access the data.
On June 29, 2017, Luis Manuel Madrigal Mena, another journalist from El Mundo Costa Rica, filed a claim (amparo action) arguing that the requested information had not been delivered. For its part, the Ministry of Health responded that Mrs. Solano had not made any formal request and that her petition was merely verbal. Additionally, the Ministry said that it had already explained to Mrs. Solano that the files were before the Attorney General’s Office and the Environmental Administrative Court. The Ministry affirmed that the requested information could not be delivered to Mrs. Solano because the case was still pending.
The Supreme Court of Costa Rica had to determine whether the Ministry of Health violated the journalists’ right of access to public information by refusing to disclose the requested data regarding a clandestine garbage dump.
The Court affirmed, firstly, that all public entities must respect the principles of transparency and publicity. It also highlighted that the right of access to information is closely related to the Social Rule of Law since it enforces democratic principles by allowing citizens to actively participate in the decisions made by the administration. In this sense, the Court considered that public entities must create and promote adequate and permanent channels of communication or exchange of information with the people, “in order to encourage greater direct and active participation in public management and to implement the principles of evaluation of results and accountability, currently incorporated in our constitutional text” [p.6]. For the Court, the right of access to information is a means of control over the government, which allows for an adequate supervision of the proper administration of public entities. The Court held that administrative confidentiality is only justified under specific circumstances, for example, when constitutionally relevant values or assets are protected.
Moreover, the Court added that the right of access to information “consists of (a) access to public departments, dependencies, offices, and buildings; (b) access to files, records, databases, and physical or virtual documents; (c) access to personal data; (d) possibility to rectify or eliminate such data if it is incorrect or false; (e) the right to know the content of physical or virtual documents and files; and (f) the right to obtain, at their own cost, certifications or copies” [p.8].
The Court made a distinction between the right of access to administrative information “ad extra” (outside) and “ad intra” (inside). While the former is granted to any person interested in having access to a piece of specific administrative information, the latter is granted only to the interested parties in a concrete and specific administrative procedure.
The Court also established the intrinsic limits of the right to access administrative information. The first of these limits is that information that does not concern matters of public interest cannot be accessed. The second limit refers to State secrets. The Costa Rican legislation has not yet established what State secrets are; however, in light of the doctrine, the Court differentiated the scope of State secrets for objective and material reasons (“ratione materiae“: security, national defense, and foreign relations), as opposed to the secrets imposed on public officials (“rationae personae“). Nevertheless, the Court warned that the State secret, being an exception to the principles of transparency and publicity, must be interpreted and applied restrictively.
The Court referred to the extrinsic limits of the right of access to administrative information as well. The first limit is established in article 28 of the Constitution, which states that all rights are limited by moral and public order; the second limit is for information concerning intimate, sensitive, or nominal data of a person since its disclosure would violate the right to privacy. Finally, the third limit arises when the information is related to pending criminal investigations carried out “by administrative or judicial police forces, in order to ensure the accuracy and success of the investigation and, above all, to respect the presumption of innocence, honor, and privacy of the persons involved” [p.11].
Regarding the specific case, the Court affirmed that the refusal to deliver the requested information was not justified. It held that the Ministry’s statement that Mrs. Solano had not demonstrated a legitimate interest to access the data was not true. The Court established that the requested information was a matter of public interest, as it deals with the problem of solid waste management; thus, its access cannot be restricted.
Regarding the Ministry’s argument that access to the documents could only be granted after the litigation process was finished, the Court recalled a judicial statement that indicated that the process had been filed since April 13, 2016. Finally, the Court rejected the Ministry of Health’s argument that the journalist could not have access to the document because it was not part of the judicial process before the Environmental Administrative Court. For the Court, the demanded data was of public interest, so any person should be able to have access to it. Therefore, the Court decided to uphold the amparo action, considering that the plaintiff’s fundamental right of access to administrative information had been violated. Consequently, it ordered the respondent entity to grant the petitioner access to the information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Supreme Court of Costa Rica expands the right to freedom of expression since it protects the right of access to administrative information in cases involving a matter of public interest, even when a judicial (non-criminal) process is in progress. This ruling was based on democratic principles, such as transparency and publicity, as well as the right of citizens to exercise effective control over the activities carried out by public authorities in the exercise of their functions.
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