Case Summary and Outcome

The Administrative Court of Cundinamarca partially granted the freedom of information request issued by Diana María Salinas Plazas and Vivian Newman Pont, who asked the General Command of the Colombian Armed Forces for documents pertaining to Operation Atai, a military action conducted on August 29, 2019, where—the plaintiffs claimed—children had died. While the Colombian state considered the information to be secret, the Court dismissed the exception invoked by the state and argued that when the information is relevant to human rights violations, the exception should not stand.

Facts

Diana María Salinas Plazas and Vivian Newman Pont asked the General Command of the Colombian Armed Forces for certain documents pertaining to Operation Atir, a military maneuver conducted on August 29, 2019, against a guerrilla group. In the operation, the plaintiffs argued, several children were killed. Misses Salinas Plazas and Newman Pont alleged that the military knew that the guerrilla group which was being attacked had resorted to the practice of forced recruitment of children. The plaintiffs alleged that the information was in the public interest, because the events had been the source of an intense political controversy and because citizens needed to know what had happened around an operation that was initially covered up. Furthermore, the plaintiffs argued that the death of children needed to be carefully scrutinized for they died “violently in totally exceptional circumstances from a rule of law standpoint” [p. 8].

The State denied access to the requested information. The General Command of the Armed Forces considered that the requested documents were secret under applicable law, for they were related to issues of national security and national defense. The plaintiffs questioned the initial refusal and argued that the human rights exception established in Article 21 of Act 1712 of 2014 applied in this case. Said statute establishes that exceptions to access to information do not apply “in cases of human rights violations or crimes against humanity”. The plaintiffs argued—then—that the information they requested needed to be made public, especially because the relevant documents could reveal that the Armed Forces knew about the forced recruitment of children [p. 9]. The Armed Forces insisted, arguing that revealing details of the military operation could endanger military personnel, future operations, and the chances of succeeding in combating guerrilla activities in the future. The issue came down to the Administrative Tribunal of Cundinamarca, which partially granted the plaintiffs’ request.

Decision Overview

The decision was handed down by judge Luis Manuel Lasso Lozano. After reviewing the procedure established in law to produce an in camera review of documents made secret on national security grounds, the Court presented the reasons why it would partially grant the plaintiffs’ request.

First, the Court narrowed down the grounds under which certain information can be restricted for national security reasons. It considered that two presidential decrees of 2015 (103 and 1070) were not viable sources of state secrets, for all restrictions on access to information must be established by the Constitution itself or through a statute issued by the Legislature. Those decrees, hence, did not meet the standard.

Second, the Court reviewed the Colombian legal framework for accessing military and intelligence information. In particular, the Court considered as especially relevant Article 33 of Act 1621 of 2013, which regulates the activity of intelligence and counterintelligence bodies. Said article establishes that intelligence “documents, information, and technical elements” shall be classified for a maximum of 30 years, which can be expanded for another 15 if the President of the Republic chooses to do so. The Freedom of Information Act of 2014 (Law No. 1712) also establishes in Article 19 that national defense and security are valid grounds for denying freedom of information requests. However, Article 21.3 also establishes that such an exception cannot stand when the information is related to “cases of human rights violations or crimes against humanity”. The Court considered that the latter law is not only subsequent to the former, but also of a higher hierarchy.

Third, the Court recalled a decision C-951 of 2014 by the Constitutional Court, that establishes that freedom of information claims must be solved on a case-by-case basis.

Having set the legal groundwork, the Court then proceeded to analyze the documents and partially granted the plaintiffs’ requests. The Court only accepted access to documents related to the presence of minors within the guerrilla group, for it considered that this was the issue that authorized disclosure in front of a general national security exception. In this balancing exercise, the Court denied access to a substantial part of the documentation that had been requested, and only granted access to a redacted version of one of the intelligence reports used in the preparation stage of the military operation in question.