Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Constitutional Court of Guatemala authorized the Attorney General’s Office to investigate documents regarding military operations conducted during José Efraín Rios Montt’s presidential mandate. The Court found that this information could not be considered an official State secret, since no law allowed its classification, and therefore the Public Prosecutor should be able to access these documents and use them in the criminal proceedings for genocide held against the former president.
The Attorney General’s Office requested from the Ministry of Defense access to some documents concerning military operations carried out during the dictatorship of José Efraín Rios Montt. These documents were meant to be used as evidence in criminal proceedings against the former president for the crime of genocide. The Ministry granted access to the documents, but Rios Montt filed an appeal for reconsideration, arguing that they contained information related to secret military matters. The judge dismissed the appeal.
Rios Montt filed a claim (amparo action), arguing that the disclosure of information previously classified as confidential violates the principles of legality and publicity of the administrative act. He also considered that the illegitimate incorporation of such documents as evidence in a criminal proceeding violated the right to due process. In this sense, he requested that the administrative act that had granted access to the documents be overturned. A first-instance court rejected the claim, and the Constitutional Court confirmed the appealed sentence, granting access to the information.
The Court had to decide whether documents containing information on military operations can be publicly available and used as evidence in criminal proceedings for genocide.
According to the Constitutional Court, article 30 of the Constitution establishes the publicity of all governmental acts, with the exception of two cases: “a) military or diplomatic matters of national security, and b) data provided by private parties under the guarantee of confidentiality” [p. 7-8]. In the first case, the information must have the capacity to “preserve the physical integrity and honor of the nation and its territory; or to protect the constituent elements of the State against any aggression by foreign groups or belligerent nationals” [p. 8]. However, the Court clarified that the quality of such information must be duly accredited.
The Court held that the plaintiff did not prove that the information in question fell under either of those two assumptions and therefore denied the claim, maintaining access to the documents. Additionally, the Court ordered the plaintiff to pay a fine for filing an amparo action that was clearly frivolous and clearly improper.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the scope of the right not only because it allows access to public documents, but also because it establishes that whoever denies access to information must duly prove that the data is secret or confidential. If this is not proved, the right of the public to know the content of the documents prevails.
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