Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
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The Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the Secretariat of National Defence (SND) must release the name and ranks of military personnel detained in a military prison camp during the 1970s, since its disclosure does not affect the life, security or health of former detainees and, in the case of military personnel, it is related to activities of an inherently public nature.
Further, the IFAI held that SND must provide information on whether civilians were also interned at the camp. The fact that civilian detention in a military base was illegal is insufficient to justify the non-existence of documents, and given reports of the existence of civilian detention, if SND cannot find such information, it must furnish proof that no such information exists.
This case analysis was contributed by Right2Info.org.
In August 2004, Petitioner requested the following information from the Secretariat of National Defence (Secretaria de la Defensa Nacional, or SND): (i) names of the director, deputy director and chief guard of the military prison of military camp No. 1 in the Federal District (DF) from 1970-1982; (ii) a list of the military members (names and ranks) interned in such prison from 1973 to 1976 and (iii) the names of civilians detained in same prison from 1972 to 1976.
The SND provided the name of the prison directors that acted during the corresponding period and indicated there was no deputy director or chief guard. It refused to disclose information on military detainees on the basis that such information was privileged and confidential under Articles 13(IV) (risk to life, security or health of an individual) and 18(II) (personal data) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law). As for civilian detainees, it noted that the Mexican Constitution forbids the imprisonment of civilians in military detention centers and that accordingly, there was no record of civilians being held in the prison of military camp No.1.
Petitioner appealed to IFAI and added a new request for disclosure of the rules for entry to and exit from military prisons and information on areas where civilians were allegedly held.
IFAI first analysed Article 13(IV) of the RTI Law, invoked by the SND to deny disclosure of the names and ranks of military detainees on the basis that such disclosure would reveal sensitive personal information. Article 13(IV) states that information is classified or reserved when its disclosure would “endanger the life, security or health of any person”. IFAI found that the SND’s invocation of this provision was improper, since disclosure of the requested information would not endanger the detainees’ life, security or health in any way.
Article 18(II), the other provision invoked by the SND, protects personal data that requires consent for its distribution or diffusion, except when such information is publicly available. IFAI held this provision was also inapplicable because the information requested was of a public character as it related to public employees who were being sanctioned due to illegal acts committed during the course of their official duties.
As for the SND’s statement that no civilians were detained in the prison of military camp No.1, IFAI determined that SND had to submit actual proof of these facts and rejected any broad claims based on mere constitutional assumptions. Because investigations by special prosecutors in the past had revealed that in the 1970s many civilians were held in secret prisons belonging to military camp No. 1, the SND had to disclose any information it held on the matter, or otherwise prove that such documents did not exist.
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