Access to Public Information, Privacy, Data Protection and Retention
Magyar Helsinki Bizottsag v. Hungary
Closed Expands Expression
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The Supreme Court of Paraquay granted access to the Ombudsman on behalf of a requesting party for disclosure of financial information pertaining to a number of public officials working for the municipality of San Lorenzo. The Ombudsman had argued that the refusal was contrary to Article 28 of the Constitution regarding the right to be informed as well as the country’s human rights obligations under the American Convention on Human Rights (ACHR) and International Covenant on Civil and Political Rights (ICCPR). The Supreme Court referred to the Private Information Act which at Article 5 provides that data revealing natural or legal persons’ financial situation may only be released: “…….. (c) where they are contained in public sources of information.” In the Court’s view, “public sources of information are the three branches of the people’s government; or more precisely, the documents in their possession and the persons performing public duties in these three branches.”
A Paraguayan citizen filed a request with the municipal intendant of the city of San Lorenzo, requesting a printed document with a number of employees working for the municipality, including their names, positions, and salaries. He based his request on Articles 28, and 45 of the Constitution of Paraguay and the international instruments ratified by Paraguay, including the American Convention on Human Rights and the International Covenant on Civil and Political Rights. Article 28 of the Constitution recognizes “[t]he right of the persons to receive true, responsible, and equitable information is recognized” and that “[t]he public sources of information are free for everyone.”
Upon dismissal of his request, the citizen then filed an action to enforce the above constitutional rights (recurso de amparo) before the country’s civil and commercial courts, which was dismissed in the first instance and subsequently by the Court of Appeal. The ground for this dismissal was that data subjects must provide permission for releasing information relating to their finances. In addition, the courts considered that the plaintiff had not specified the damage caused by the failure to provide the information.
As a result of these judgments, the Office of Ombudsman decided to bring an action on behalf of the plaintiff, arguing that the refusal to provide information disregarded the right of access to public information enshrined in Article 28 of the Constitution, Article 13 of the American Convention on Human Right, and Article 19 of the International Covenant on Civil and Political Rights.
The Supreme Court upheld the right of access to the requested information, on the basis of the provisions of the Constitution, Article 13 of the ACHR, and Article 19 of the ICCPR.
This main issue before the Supreme Court of Paraguay was whether the refusal to disclose the salary of a public official was justified by the official’s right to privacy, or whether, on the contrary, it violates the requesting citizen’s right to access information.
Judge Fretes first stated that in order to determine whether financial data may be disclosed, it is necessary to establish whether such disclosure affects the data subject’s right to privacy. To that end, it was necessary to refer to the Private Information Act (Ley que Reglamenta la Información de Carácter Privado, Law 1682, 2001, Article 5), which provides that data revealing natural or legal persons’ financial situation may only be released: “(a) when these persons have provided express written permission to release data on their payment of debts that have not been claimed in court; (b) in the case of information or assessments that State agencies must publish or disclose pursuant to specific legal provisions; and (c) where they are contained in public sources of information.” In Judge Fretes’ view, “public sources of information are the three branches of the people’s government; or more precisely, the documents in their possession and the persons performing public duties in these three branches.” [par. 29]
According to Judge Fretes, salary information of public officials must necessarily be found in these State agencies. Accordingly, he considered that pursuant to the provisions of the law such data must be published or released.
Judge Fretes also noted the Inter-American Court on Human Right’s interpretation of Article 13 of American Convention on Human Rights in Claude Reyes v. Chile. There, the Court stated that the right of access to information may be restricted when three conditions are met: (1) the restrictions “must have been established by law to ensure that they are not at the discretion of public authorities;” (2) they must be “necessary to ensure ‘respect for the rights or reputations of others’ or ‘the protection of national security, public order, or public health or morals;” and (3) “the restrictions imposed must be necessary in a democratic society.” In this case, Judge Fretes was of the opinion that not all three conditions were met.
Finally, the judge mentioned the trend in the democratic world towards considering that public officials’ financial information must be disclosed in order to ensure government credibility. He further explained that upon taking public office, officials receive the public’s trust and therefore, they must waive part of their right to privacy in order to provide accountability to the public.
Judge Núñez joined the opinion of Judge Fretes on the same grounds, and added that this case allows the Supreme Court to clearly establish the scope of the right of access to information under the control of the State or in public sources.
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