Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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The Federal Administrative Chamber of Argentina upheld a first-instance court ruling that determined that all persons have the right to request and receive information held by the State, without having to claim direct interest, in accordance with the principle of maximum disclosure. The case began after a deputy requested the Ministry of Justice and Human Rights to provide her with information on the competence, budget, personnel in charge, and contact information of a public policy program developed by the ministry. She also requested information regarding the salary of the personnel in charge and the agency to which the program was linked. The authority partially provided the requested information. In view of this situation, an amparo action against the Ministry of Justice and Human Rights was filed. The plaintiff considered that the partial delivery of the information violated their right to access public information. The Federal Administrative Chamber of Argentina decided to protect the plaintiff’s rights and ordered the delivery of the entirety of the information as requested by the plaintiff.
A deputy asked the Ministry of Justice and Human Rights to provide the following information:
“1. What is the competence of the Territorial Development of Public Policies program, the law that created it and assigned its competencies; 2. What is the budget currently managed by the referred program and what is the budget estimated to be allocated annually; 3. Indicate who is the coordinator or director of said program as well as the personnel working in it and their salaries; 4. Name the office where the program operates, telephone number and e-mail address for contact; 5. Any other information that may be of interest.” [p. 1] [Italics outside the original text]
The Ministry of Justice and Human Rights partially granted the request since it did not provide the information regarding the personnel in charge of the program, nor their salary.
In light of this, the congresswoman filed an amparo action against the ministry because, in her opinion, the incomplete delivery of the requested information had violated her right of access to public information.
The first instance judge granted protection to the plaintiff’s rights. In their opinion, according to the Constitution, the international treaties subscribed on the matter, and the jurisprudence of the Supreme Court of the Nation, all persons have the right to request and receive information held by the State, without having to present a direct interest, in accordance with the principle of maximum disclosure.
The Ministry of Justice and Human Rights appealed the first instance judgment before the Federal Administrative Chamber of Argentina.
For the appellant, the amparo action was not suitable to request the protection of the right of access to public information, since the plaintiff did not prove that the incomplete response to her request had caused direct, certain, current, and manifest damage. Finally, the appellant stated that the information that was not provided was categorized as personal data, therefore, it was essential for the plaintiff to indicate the intended purpose of the information since it was intruding into the intimate sphere of the workers.
The Federal Administrative Chamber of Argentina decided to uphold the judgment of the first instance and granted the protection of the plaintiff’s rights.
The Federal Administrative Chamber of Argentina had to resolve two legal issues. First, whether an amparo action was appropriate to protect the right of access to public information. Secondly, it had to decide whether when a citizen requests information regarding the employment status and salary of public employees of a public agency, they must claim a legitimate interest to access such information.
The Court began its argument by stating that the jurisprudence of the Supreme Court of the Nation had already ruled, on several occasions, on the suitability of the amparo action to protect the right of access to information. In this regard, it indicated that “the High Court has stated that ‘the central basis of access to information held by the State consists of the right of every person to know how their rulers and public officials perform’” [p. 7].
Furthermore, the court noted that “the Inter-American Court of Human Rights imposed the obligation to provide the requested information and to give a reasoned response to the request in case of refusal —in accordance with the exceptions provided [by law]. Since the information belongs to the people, the information is not the property of the State, and access to it is not due to the grace or favor of the government. The government holds the information only as a representative of the individuals. The State and public institutions are committed to respecting and guaranteeing access to information for everyone’” [p. 7]. [Bolding in the original text].
Regarding the legitimate interest that, in the appellant’s opinion, persons must claim when requesting information, the Tribunal held that —based on the Regulations on Access to Public Information for the National Executive Branch, the Personal Data Protection Law, and Article 13 of the American Convention on Human Rights— it is not necessary for the person requesting public information to prove a legitimate interest.
Although the Court acknowledged the existence of a legal provision that conditions the transfer of personal data to the existence of a legitimate interest, such rule “must be understood as a limit to the circulation of personal data among public or private persons engaged in its processing. But it does not seem possible to extend these provisions to cases of public interest since this would mean disregarding, or at least hindering, the full enjoyment of a human right recognized both in our National Constitution and in the International Treaties that the Republic of Argentina has signed” [p. 9].
Based on this, the Tribunal considered that only when the information requested is of a sensitive nature —i.e., information defined by law as referring to racial and ethnic origin, political opinions, religious, philosophical, or moral convictions, trade union membership, and information concerning health or sex life—, it is possible to restrict access to information requests since this information is, in principle, protected by the right to privacy of the owners of the information. Since the data requested by the plaintiff does not refer to any of the above-mentioned categories, it is not possible to legitimately justify a negative response by the public authority to the plaintiff’s request.
Therefore, the Federal Administrative Chamber of Argentina upheld the first instance judgment and rejected all of the appellant’s arguments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the right to freedom of expression and access to information as it reiterates international standards on the application of the principle of maximum disclosure to which public information must be subjected to. It also reiterates that the ownership of the information held by the State is in the hands of the people, therefore, any person, without the need to accredit any interest, can access it.
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