Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
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The Constitutional Hall of the Supreme Court of Justice of El Salvador decided that a decision issued by the Access to Public Information Institute (IAIP), restricting the access to information about advertising services provided to the state, trips made by the president and the first lady during his term, and protocolary activities of foreign officials, violated the right to access information of the plaintiff and ordered the IAIP to grant access to the required information. After the IAIP partially modified a decision issued by the Presidency of the Republic, denying an access to information request made by two citizens, the plaintiff lodged an application before the Court questioning the constitutionality of this decision. The Court considered that the IAIP failed to properly balance the rights the Presidency and the IAIP aimed to protect by concealing the information with the right to access information. The Tribunal held that the requested information was of public interest and allowed the public to exercise oversight on the government and foster transparency, while it did not pose a risk to free competition nor the security, integrity, or life of public officials, national or foreign.
On July 3, 2014, two citizens —José Burgos Viale and Xenia Hernández Castro— requested the Presidency of the Republic of El Salvador information regarding the “services of advertising agencies for the design, production, and implementation of official campaigns during 2010, and their extensions.” (par. V) They also asked for information about the trips made by the president and the first lady during his term (2009-2014), fulfilling official duties, and the protocolary activities of foreign officials —who visited El Salvador in the same period— concerning food, transportation, and lodging accommodations.
On July 21, 2014, the Presidency of the Republic denied access to the requested information, arguing that disclosing information about the services of advertising agencies posed a risk of collusion while disclosing information about the president’s trips and foreign official’s protocolary activities threatened the life and security of these people.
On July 30, 2014, Burgos and Hernández appealed the Presidency’s decision before the Access to Public Information Institute (IAIP). On December 18, 2014, the IAIP partially modified the Presidency’s decision by ordering the publication of the global amounts spent by the Presidency on advertising services during 2010, while upholding the confidentiality of the remaining information. On January 7, 2015, the decision was appealed by Burgos and Hernández. The appeal was rejected by the IAIP on August 19, 2015.
The citizen Herbert Danilo Vega Cruz filed a motion to declare the unconstitutionality of the decisions issued by the IAIP, before the Supreme Court of El Salvador, which was later reframed as an amparo action. He argued that this decision breached the right to access public information.
The Constitutional Hall of the Supreme Court of Justice of El Salvador analyzed whether the IAIP violated the right to access public information of the plaintiff and the general public through a decision in which it ordered the Presidency to disclose the global amounts spent on advertising services during 2010 while upholding the confidentiality of information regarding the official trips made by the president and the first lady during his term, and protocolary activities of foreign officials visiting El Salvador in the same period.
For the plaintiff the IAIP’s decision —about the information requested regarding advertising expenditure— privileged the free market and the mitigation of a hypothetical risk of collusion to the detriment of “access to information, to withhold the expenses made by Carlos Mauricio Funes Cartagena when he was president” [para. I]. Similarly, the plaintiff argued that the IAIP concealed information that should be published ex officio, according to articles 2 and 6 of the Constitution (i.e., information concerning official trips made by the president and the first lady and protocolary activities undertaken by foreign officials in El Salvador). Herbert Danilo Vega Cruz also noted that the requested information was of public interest since it was widely known that the Presidency spent significant resources on advertising and made 84 trips abroad.
For its part, the defendant mentioned that the right to access information was not absolute and can be limited when in conflict with “legitimate state objectives, values, and rights that are equally important and could be harmed upon the disclosure of information” [para. I]. Thus, the IAIP explained that disclosing all the information regarding the advertising services provided by private agencies to the state in 2010 could affect free competition and pose a real risk of collusion amongst advertising companies in the context of public procurement. Despite this, the IAIP mentioned that it modified the degree to which the Presidency originally classified the aforementioned information, to order the publication of the total amounts spent annually on advertising by the Presidency.
Regarding the information about the president and the first lady’s official trips during 2009-2014, and the protocolary activities of foreign officials in El Salvador in the same period, the IAIP held that disclosing this information would reveal a pattern, that “contrasted with other public information would create a real risk to national security and the physical integrity of the involved national and foreign officials” [para. I] For this reason, the IAIP decided to maintain the confidentiality of this information.
The Court began its considerations by underscoring the constitutional protection of freedom of expression as laid out by Article 6 of the Constitution. Following the precedent established by the Supreme Court in Decision 13-2012, 5-XII-2012, the Court highlighted the right to search and access information of all kinds, public and private, of public interest, while acknowledging too the international protection of this right, in instruments such as Article 19 of the Universal Declaration of Human Rights, Article 19.2 of the International Covenant on Civil and Political Rights, and Article 13 of the American Convention on Human Rights or in the case law issued by the ICtHR in Olmedo Bustos v. Chile.
For the Court, following the precedent laid out in the decision Amp. 614-2010 from 1-II-2013, the right to access information allows the general public to understand their context and take decisions in a free manner.
The Supreme Court then explained that the right to access information is breached when such access is denied or restricted without justification or in a discriminatory manner; the authority in charge of the information provides it in an incomplete manner or outside the legally established deadline; the established procedures to access information are complex, excessively onerous or pose unreasonable obstacles, or when a public official fails or abstains from rerouting incorrectly lodged access to information requests.
The Court then held that the president needs —in accordance with Article 131 of the Constitution— previous authorization from the Legislative Assembly to travel abroad and must justify their personal trips. This, the Court said, is based on the theory of the separation of powers and aims to foster accountability and transparency.
Subsequently, the Court explained the concept of classified information, and under which circumstances it is legally justified to classify information. According to the Supreme Court, classified information is public information whose access is restricted under properly justified causes and for a limited period.
The decision to classify information can be justified, according to Article 19 of the Access to Information Act (LAIP), when the dissemination of this information can affect “national defense, public security, the life, security or health of any person or unlawfully benefit someone to the detriment of another person” [para. V]. Additionally, under Article 21 of the LAIP, the degree of threat that justifies the limitation of the right to access information must be real and exceed the potential harm the dissemination of the information could generate.
Considering this framework, the Court proceeded to analyze the specific case. It started by studying whether IAIP’s decision regarding the restriction on information about the advertising services provided to the State in 2010 was properly justified.
The Tribunal argued that the IAIP “failed to properly weigh the right to access information with the alleged risk of collusion that would entail the dissemination of the information” [para. V]. For the Court, there was no objective evidence that advertising agencies in the market of El Salvador would collude to obtain an economic benefit by exploiting the information requested. The Court noted that the information request was originally lodged by two citizens linked to NGOs without connections to the advertising industry.
The Court also acknowledged that free competition is indeed a matter of constitutional relevance (as set in Article 110 of the Constitution), but that in this case it was connected to a non-essential service (advertising) that could be channeled “through official and already existent media outlets” [para. V] On the contrary access to information, the Court mentioned, was vital for democracy since it allows the public to audit and hold the government accountable.
In light of this, the Tribunal considered that in this case, the sacrifice to the right to access information was disproportionate when weighed against a matter that did not deserve equal protection. The Court even underscored the fact that even if the risk of collusion was real, the state has mechanisms to mitigate this situation once it happened, such as declaring bidding processes void, calling for a new bidding, and considering international offers. The state also has the power to issue sanctions to companies that engage in anti-competitive practices such as collusion. According to the Tribunal, this further undermines the need to limit access to information regarding advertising services.
At this point, the Court expressed its concern about the IAIP’s decision to sacrifice the right to access public information under unconvincing pretenses, considering that the IAIP is supposed to abide “by a general principle of maximum disclosure and foster a culture of transparency” [para. V].
The Supreme Court of El Salvador then studied whether the decision to classify the information regarding the official trips made by the president and the first lady during his term, and protocolary activities of foreign officials visiting El Salvador in the same period, was justified.
The Tribunal noted that the president is one of the highest-ranking officials in the current republican system of El Salvador, which makes it a priority to protect them. Such is the case, that the Court acknowledged that information strictly regarding this official’s security and safety —or that of foreign officials too— can be legally classified. With this in mind, the Court argued that information about the president’s trips and expenses —and the first lady’s— do not pose a security risk per se, since this information is not directly linked with the plans enacted to protect their safety, but rather serves to encourage accountability and transparency and for the public to evaluate the work of civil servants. The Tribunal even said that this information, given its nature as a matter of public interest, must be divulged by the president ex officio, previously, during, or after the specific event, as set by Article 10 of the LAIP, along with the names of other officials accompanying the president, the destination of the trip, its objective, airfare costs, and travel expenses.
Regarding the information about the protocolary activities of foreign officials in El Salvador during 2009-2014, the Court held a similar opinion. For the Tribunal the information request did not seek to disclose sensitive data about security logistics, but rather to “exercise citizen oversight over the expenses of the Presidency of the Republic during the aforementioned activities” [para. V].
Considering these arguments, the Court held that the contested decisions issued by the IAIP breached the right to access information of the plaintiff. The Tribunal ordered the Presidency of the Republic to disclose all the information originally requested: “(i) design, production and implementation expenses of advertising campaigns during 2010 and their extensions, including the names and characteristics of the contracting parties, compliance to deadlines and how they were hired; (ii) the list of international trips made through public funding by the president and the first lady between June 1, 2009, and May 31, 2014, including the names of accompanying employees and officials, trips’ destination, their objective, airfare costs, and travel expenses, and (iii) expenses in protocolary activities undertaken by foreign officials in El Salvador between June 1, 2009, and May 31, 2014” [para. VI].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Supreme Court of El Salvador provided robust protection to the right to access information by ordering the disclosure of public interest information and highlighting the role of citizen oversight in holding institutions accountable and fostering transparency within the government. The Tribunal also underscored and abided by international human rights standards, as laid out by the IACtHR, when issuing this decision. The Court acknowledged the special prevalence of the right to access information within its judicial system and the need to properly justify decisions that limit this right.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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