Case Summary and Outcome

The Supreme Court of Argentina held that the Legal and Technical Secretariat of the Presidency of the Nation could not refuse to provide a journalist with information regarding the decrees sanctioned by the civil-military dictatorship on the grounds that it constituted confidential information. The journalist Claudio Martín Savoia requested the decrees sanctioned by the civil-military dictatorship that ruled the country between 1976 and 1983. The Legal and Technical Secretariat of the Presidency of the Nation denied Mr. Savoia’s request on the grounds that the documents in question were classified. After long litigation, the Supreme Court of Justice of Argentina determined that the State had unlawfully withheld the information and held that the right to access information is broad. Additionally, the Court held that any restriction to obtain information must be adequately justified and provided by law. Consequently, the Court revoked the National Court of Appeals ruling and ordered the Secretariat to provide Mr. Savoia with the information. 

Facts

On May 16, 2011, journalist Claudio Martín Savoia requested the Legal and Technical Secretariat of the Presidency of the Nation copies of the decrees issued between 1976 and 1983 by those who acted as de facto presidents. The Secretariat rejected Mr. Savoia’s request on the grounds that the decrees in question were classified and noted that according to Article 16(A) of Annex VII of Decree 1172/03, the National Executive Branch could refuse to provide information expressly classified when the content concerned national security or foreign policy.

As a result, Mr. Savoia filed an amparo action. In his submission, he alleged that the response of the Secretariat failed to comply with the constitutional provisions and international standards regarding the right to access information. Mr. Savoia also argued that with the enactment of Decree 4/2010, all the information and documentation related to the Armed Forces’ actions during 1976 and 1983, as well as that linked to the military dictatorship, had been declassified. Finally, Mr. Savoia pointed out that even if the requested information was legitimately classified, judicial authorities had the authority to review whether the decision to withhold the information from public knowledge was justified and legitimate. 

The National Court of First Instance on Federal Administrative Matters No. 5 admitted the amparo and considered that Decree 4/2010 was applicable to the case. In particular, the Court highlighted the importance of all information related to the Armed Forces’ actions during the military dictatorship for the Argentine society. It also argued that there was no justification from the National Executive Branch to hold the decrees as confidential. Accordingly, the Court ordered the National State to provide, within ten days of the decision, the decrees that were outside of the scope of the exceptions established in Articles 2 and 3 of Decree No. 4/2010. Subsequently, the State filed an appeal. 

The Chamber I of the National Court of Appeals for Federal Administrative Matters upheld the appeal filed by the National State, revoked the first instance judgment, and rejected the amparo. In particular, the Court of Appeals pointed out that the petitioner’s claim did not have standing since he had not demonstrated sufficient and concrete interest. Moreover, the Court noted that the reasons stated by the State not to disclose the decrees were legitimate since they concerned national security and the Nation’s foreign relations. In view of this decision, the journalist filed an extraordinary federal appeal before the Supreme Court of Argentina.

Decision Overview

The main issue for the Supreme Court of Argentina to analyze in this case was whether the State could refuse to provide the information required by Mr. Savoia under the justification that it constituted confidential information.  

The Court began the study of the case by forewarning that it would take into account Law on the Right of Access to Public Information (Law 27,275), which was enacted after the case at issue arose. It emphasized that according to its own jurisprudence, judges must consider the amendments introduced by new rules related to the subject matter of the litigation, as they constitute supervening circumstances that cannot be disregarded. 

Having stated the foregoing, the Court proceeded to set forth the scope of the right of access to information, as well as the requirements for legitimately limiting such right. In doing so, the Court relied on its legislation, its jurisprudence, international and regional human rights law, and particularly on the criteria established by the Inter-American Court of Human Rights in the case of Claude Reyes et al. v. Chile. 

The Court emphasized that the right of access to information is governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a restricted system of exceptions. In addition, the Supreme Court pointed out that based on Article 13 of the American Convention on Human Rights, any restriction to this right must be previously and clearly established by law in a formal sense; pursue one of the objectives permitted by the Convention, and be necessary in a democratic society. Likewise, the Court emphasized that the burden of proof regarding the legitimacy of access to information restrictions belongs to the State and that when a request for information is denied, this must be done through a duly justified written decision that reveals the reasons and rules upon which it is based upon.  

Considering the aforementioned principles, the Court stated that, in the instant case, the conduct of the National State was unlawful since the reply of the Secretariat was limited to invoking the classified nature of the decrees and failed to provide details and the mention the applicable legal rule allowing the Executive Branch to classify them as such. Moreover, the Court pointed out that claiming Article 16(A) of Annex VII of Decree 1172/2003 provided an exception to the obligation to provide access to information was inoperative because the abstract citation of general rules that enable exceptions could not be considered a sufficient justification. 

The Court explained that Article 13 of the then newly enacted Law 27,275 demands that for a request to access information to be rejected, it must be well-founded and issued by the highest authority of an agency; otherwise, the denial is considered null and void, and the delivery of the requested information becomes compulsory. Furthermore, the Court pointed out that under this Article, the lack of response, as well as the ambiguity, inaccuracy, or incomplete response, are deemed as unjustified refusals. 

For the Supreme Court, the grounds given by the Court of Appeals could not be upheld because they were contrary to the broad understanding of legal standing concerning the right to access public information set out by its jurisprudence. The Court underscored that through its case law on access to information, it had firmly established that State-held information does not belong to the State but to the people of the nation of Argentina. Thus, individuals have the right to request information without the need to prove a qualified or direct interest. 

Moreover, the Court highlighted that one of the purposes of access to information is to allow individuals to exercise their right to truth effectively; therefore, providing information cannot be conditioned on the accreditation of a legitimate interest nor on a statement of reasons for its request. Considering the circumstances of the particular case, the Court stressed that the fact that Mr. Savoia had invoked his status as a journalist to request the information was not decisive for the purpose of determining the standing required. 

Additionally, the Court emphasized that Law 27,275 on the Right of Access to Public Information expressly enshrines and reaffirms the broad scope of active standing. Particularly it noted that Article 4 establishes that all individuals and legal persons, public or private, have the right to request and receive public information without the need to justify a subjective right, legitimate interest, or to have legal counsel. 

In view of the foregoing, the Supreme Court determined that Mr. Savoia had standing to demand from the National Legal and Technical Secretariat copies of the national decrees signed by de facto presidents in the period between 1976 and 1983. Additionally, the Court found that State’s conduct violated the right to access information of Mr. Savoia. The Court remanded the case back to Chamber I of the National Court of Appeals for Federal Administrative Matters to issue a new decision based on the criteria set forth in this judgment.