Access to Public Information
Bubon v. Russia
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The Supreme Court of Justice from Uruguay granted access to information regarding the number of people who died in the country that previously had received a vaccine against COVID-19. The applicant filed an access to public information petition against the Ministry of Public Health asking for the number of people who died in Uruguay for any reason, from March 1 to April 26 of 2021, specifying how many of these people had received, at the time of their death, COVID-19 vaccines, with the indication of date, quantity of doses and type of vaccines administered. The Ministry of Public Health denied access to the information arguing that they were not obligated to “create new information” as the data was scattered among various databases. The Supreme Court overturned the decision of the Court of Appeals of 7th Turn noting that the fact that the Ministry had to collect the data from various sources under their control does not entail the creation of new information. The Court ruled that limitations to access to public information must be interpreted narrowly and therefore the collection of data available from different sources cannot exempt public institutions from their transparency obligations.
In May 2021, Nicolás Souto filed an administrative petition against the Ministry of Public Health asking for information regarding the number of deaths associated with COVID-19. Specifically, Mr. Souto asked how many of the people who had a positive PCR test or antigen test between March 1 and April 26, 2021, received vaccinations, as well as how many of the people who died (for any reason) in the said period had received vaccinations, how many doses and of which vaccine.
The Ministry of Public Health provided reports on the efficacy of vaccination and indicated how many vaccinated people died and/or had to be hospitalized because of COVID-19. According to the Ministry, the information on the number of deaths for any cause would be available by March 2022 when the information on different databases is consolidated.
The applicant understood that the Ministry had more information than the one that was provided. The reports did not fulfill his request for knowing the number of people who died in Uruguay for any reason, from March 1 to April 26 of 2021, specifying how many of these people had received, at the time of their death, COVID-19 vaccines, with the indication of date, quantity of doses and what type of vaccines each person received. For this reason, he filed an access to public information petition grounded on Law Number 18.381.
The Judge of First Instance in Contentious-Administrative Matters of 1st Turn partially granted the petition and ordered the Ministry to provide the information on deaths and vaccinations within fifteen days.
The Ministry of Public Health appealed the decision, and the Civil Court of Appeals of 7th Turn overturned the first instance ruling. According to the Court of Appeals, the Ministry does not have the information requested, and to fulfill the petition would have to produce what is outside the obligations of Act Number 18.381. Article 14 of the Access to Public Information Act sets one of the limits to the right: “The request for access to information does not imply an obligation to create or produce information that they do not have or are not obliged to have at the time the request is made. In this case, the agency will communicate in writing that the denial of the request is due to the non-existence of data in its possession, regarding the requested information. Nor does this law authorize the petitioners to require the agencies to carry out evaluations or analyze the information they possess, except for those that, due to their institutional duties, they must produce. The collection or compilation of information that is dispersed in the various areas of the organization shall not be understood as the production of information, in order to provide the information to the petitioner.”
Furthermore, it maintained that the information would be available after March 31, 2022, once the public institution consolidates the different databases. The applicant filed a Cassation so the petition moved to the Supreme Court of Justice.
Minister Elena Martínez delivered the opinion of the Supreme Court. The main issue before the Court was whether the compilation of data from various databases hosted by a variety of public institutions constitutes the creation or production of information, and therefore are outside the obligations of the Access to Public Information Act.
The applicant, Mr. Nicolás Souto, filed an access to public information action against the Ministry of Public Health asking for information about the people who died after getting COVID-19 vaccination in the country. Specifically, he asked for information regarding people who have died from any cause and who had received, at the date of death, one or two vaccinations against COVID-19.
During the administrative proceeding and the judicial first instance, the Ministry of Health provided reports on the efficacy of vaccination and indicated how many vaccinated people died and/or had to be hospitalized because of COVID-19. The Ministry added that the information was distributed among different databases within the institution, and they did not have the legal obligation to collect and systematize it.
In 2008, Uruguay approved its Access to Public Information Act Number 18.381. Following international instruments, such as the Inter-American Convention on Human Rights and the International Covenant on Civil and Political Rights, this Law grants the right to any person to ask for information from public entities. If they do not answer in a period of twenty days, the applicant can fill an abbreviated process to the Judicial Power, known as “habeas info”.
Article 14 of the Access to Public Information Act sets one of the limits to the right under discussion in this case. The norm establishes that, when receiving a petition, public institutions are not mandated to create or produce new information that they do not have under their control nor are legally obliged to have. Article 14 says: “The request for access to information does not imply the obligation to create or produce information that they do not have or are not obliged to have at the time the request is made. In this case, the agency will communicate in writing that the denial of the request is due to the non-existence of data in its possession, regarding the requested information. Nor does this law authorize the petitioners to require the agencies to carry out evaluations or analyze the information they possess, except for those that, due to their institutional duties, they must produce. The collection or compilation of information that is dispersed in the various areas of the organization shall not be understood as the production of information, in order to provide the information to the petitioner.”
The Court first considered that the Act establishes the principles of maximum disclosure and transparency of information in the public interest. For this reason, the Court follows, that any exception to the principle “must be restrictively interpreted and should be adequately motivated” [p. 21]. In this sense, the Court understands that “Limitations on access to information must be interpreted restrictively and must be adequately motivated. In that order, it is clear that it is not enough to adduce a reason but that it must really exist according to the law, and the Administration must specifically detail the reasons and legal grounds that lead it to reject the request for information made” [p. 22].
Linking these principles to Article 14 provision, the Court noted: “it cannot be ignored that article 14 paragraph 1 of Law 18.381 can be a tempting escape route or safe-conduct from the Administration to avoid providing information of public interest; hence, its interpretation must be strict, and if it is applied, it must be adequately motivated” [p. 31].
The Court noted that different testimonies from Ministry’s public officers confirmed that the information was available but scattered among different divisions of the institution. Considering various testimonies, the Court concluded that in order to provide a complete and effective response to the applicant, the Ministry must collect the data from the different databases that contain the information [p. 30].
For this reason, the Court framed the case under the second paragraph of Article 14: “The production of information shall not be understood as the collection or compilation of information that is dispersed in the various areas of the organization, in order to provide the information to the petitioner.”
Following its analysis, the Court moved to consider whether the compilation and data crossing represents “creation” or “production” under Article 14 which exempts the institution from providing information. The Court concluded that to comply with what is required, the Ministry was not creating or producing information that is currently not available, but simply classifying and pulling the data that it already has available [p. 31]. For this reason, the Court outlined: “Certainly, public bodies are not obliged to produce information; however, in the present case it is not about producing non-existent information. The Court of Appeals errs when it resolves the case based on the rule of exception. In truth, what the plaintiff sought, when initiating the administrative procedure provided for in the law, was nothing more than access to information that is scattered, but available in different databases of the Ministry of Public Health”.
Contrary to what the Court of Appeals held, the Supreme Court did not find the application excessive. “It does not seem at all excessive that the jurisdictional bodies require, in a democratic society, that relevant data on deaths that occurred between March 1, 2021, and April 26, 2021 – in the period of the greatest stress on the Uruguayan health system due to the COVID-19 pandemic, are provided without hindrance by the health authorities” [p. 31]. On the contrary, the Court considered the publication of the data required by Souto as part of the active obligations that the institution must have regarding public interest information. “The delivery of information that is within the scope of the Secretary of State’s disposal through different databases managed by different departments, must be properly compiled, cross-referenced, and systematized. Active transparency, by definition, supposes an effort of the State’s material resources for the sake of maximum disclosure” [p. 31.].
The Court highlighted the public interest in the information requested. “[T]his intertwining of information – which the Secretary of State has – is extremely relevant for the public citizen debate, both for those who have voluntarily inoculated themselves and for those who, by personal decision (whatever their causes), have decided not to do so.”
In conclusion, the Court reversed the Second Instance ruling and mandated the Ministry of Public Health to provide information about the number of deaths and whether they had received COVID-19 vaccines.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of Justice expanded access to information rights by clarifying that the collection of information which public institutions have in their possession, even when dispersed among different databases, does not fit into the exception for information production. The Court protected the right by defining that exceptions must be interpreted narrowly due to the principle of maximum publicity.
Furthermore, the Court outlined that information of high interest, such as that related to COVID-19 vaccinations, should be actively published by governmental institutions. Strengthening the position, the Court denied the administration’s argument that the collection of the information would create an excessive burden: “The Administration cannot hide behind perfectly solvable bureaucratic difficulties or the burden that may temporarily cause a complete and coherent response to a request for information of this type” [p. 35].
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