Case Summary and Outcome

The Constitutional Court of Colombia protected the right to information of a citizen by ordering the Administrative Unit for the Attention and Integral Reparation of Victims (a governmental institution responsible for the acknowledgment and reparation of victims of the armed conflict in Colombia) to disclose the reasons why it refused to provide reparations to the plaintiff, when her son allegedly died at the hands of paramilitary groups. The authority refused to provide the requested information arguing that it included data regarding the legal situation of other persons. For the Court, the right to access information was unnecessarily limited, since the authority could have enacted less restrictive measures to protect the rights of third parties, such as delivering partial information. The Court also held that in this case, breaching the right of access to information would entail too the victims’ right to know the truth.

Facts

A citizen requested reparations from the Administrative Unit for the Attention and Integral Reparation of Victims (UARIV) because one of her sons had allegedly been killed by paramilitaries. The entity denied the request without giving any reasons.

The citizen filed a claim before the UARIV demanding an explanation of the negative response so that she could file the appropriate administrative remedies. The entity refused to provide the requested information because the administrative act that rejected her reparations also included information regarding the legal situation of other persons. Thus, it argued, in order to protect the right to privacy of these other citizens, the information was classified as confidential. The citizen filed an amparo action against the UARIV claiming that the entity violated her right to due process.

The Constitutional Court ordered the UARIV to provide the information requested by the plaintiff.

Decision Overview

The Court had to decide whether the refusal to provide a citizen with the reasons why she was not awarded compensation as a victim of the armed conflict violated her right to access information.

The Court noted that the right of access to public documents is a manifestation of the right of access to information, included in the Colombian Constitution and in several international treaties ratified by Colombia. It also explained that there is no need to prove any direct interest or personal involvement in order to receive the information. Furthermore, the Court held that “[t]he State has the positive obligation to deliver the requested information or to provide a reasoned response to a request for information […]. All organs and branches of government, not only the administrative authorities, are obliged to provide information” [p. 23]. The Court emphasized that the right of access to information “is governed by the principles of maximum disclosure, publicity, and transparency. These principles entail the State’s obligation to produce information, keep it and make it informally available to the interested public” [p. 23 and 24]. Finally, the Court affirmed that restrictions to the right of access to information must be established by law, pursue a legitimate aim in light of the American Convention on Human Rights, proportional to the protection of the legitimate aim, motivated, and temporary and/or conditioned to the disappearance of the reason that justified the restriction [p. 25]. To support this point, the Court cited the Special Study on the Right of Access to Information of the  Inter-American Commission on Human Rights’ Special Rapporteur for Freedom of Expression.

The Court stated that domestic legislation was consistent with Inter-American standards by allowing, exceptionally, the classification of documents held by the State, when the restrictions were specifically established by law and were “in accordance with the principles of a democratic society” [p. 29].

Regarding the rights of the victims, the Court indicated that the “extreme affectation of the right of access to information hinders the realization of the victim’s right to truth, justice, and reparation, and it compromises the  guarantees of non-repetition of the events that affected them because they are being deprived of their right to inquire about the circumstances and alleged perpetrators of the crimes committed in their community” [p. 32]. In this sense, the Court emphasized that guaranteeing an adequate exercise of the right of access to information allows the victims to have the necessary tools to realize their right to reparation.

With respect to the specific case, the Court held that the UARIV did not correctly explain the reasons why it denied access to the information, as it did not provide the legal basis that justified the restriction of the requested information. Without these, the plaintiff did not have any judicial mechanism to protect her right.

The Court explained that it was necessary to apply a strict test of proportionality to assess whether the UARIV’s decision to reject the information was appropriate. To this end, the Court indicated, firstly, that the refusal to disclose the information was based on a constitutionally legitimate purpose: to protect the right to privacy of individuals. Secondly, it stated that the restriction was suitable to achieve the constitutionally legitimate purpose; since the administrative act was not delivered, the right to privacy was protected. However, the Court found that the rejection was not necessary because there were other means to achieve the same purpose without violating the right of access to information, for example, providing a partial copy of the act, where only the situation of the plaintiff is exposed.

The Court emphasized that “the decisions of the administration that affect individuals or are contrary to their interests, must be duly motivated”, therefore, it held that the UARIV should have used another means, less harmful to the plaintiff’s right of access to information of the plaintiff, and inform her of the reasons why she was denied reparation as an alleged victim of the armed conflict.

The Court ordered the UARIV to indicate to the plaintiff, within 48 hours, the reasons for the denial of the requested reparation.

Justice Luis Ernesto Vargas Silva partially dissented from the Court’s decision. Although he agreed with the outcome, he did not consider that the debate revolved around the right of access to information. For the Magistrate, the actions of the UARIV clearly violated the right to due process of the plaintiff, by not notifying her of an administrative act of a particular nature that affected her.