Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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On December 20, 2007, the Second Section of the Constitutional Court of Peru held that a private energy supplier company was obligated to comply with an access to information request regarding the sale of a property. The case arose after the plaintiff filed a habeas data recourse against the company Empresa Regional de Servicio Público de Electricidad del Sur (ELECTRO SUR ESTE S.A.A.), requesting the submission of all documentation regarding the sale of the property owned by the company. The First Instance Court ruled on the plaintiff’s behalf. On appeal, the Superior Court of Justice of Cusco considered that the company’s act of purchasing and selling the property it owned did not constitute public information. The plaintiff lodged a constitutional harm action (recurso de agravio constitucional) against the aforementioned tribunal, before the Constitutional Court of Peru.
In its decision, the Court stated that information concerning the administrative actions of the company as an electric energy supplier was subject to the right of access to information. Furthermore, the Court held that private entities that provide public services or perform administrative functions are obliged to grant information about the characteristics of the public services they provide, their rates, and their administrative functions. Regarding the transfer of the property in question, the Court determined that it constituted an administrative act since, through it, the management of state-owned assets was carried out and thus ordered the company to provide the plaintiff with all the documentation concerning the sale of the property.
On July 8, 2005, José Oswaldo Vidal (the plaintiff) filed a habeas data recourse against the Company Empresa Regional de Servicio Público de Electricidad del Sur (ELECTRO SUR ESTE S.A.A.), requesting the submission of all documentation regarding the sale of the property owned by the Company, located at Portal Espinar No. 117, Cusco. The plaintiff argued that the Company had infringed his right to access information since it had failed to provide the requested information, as it had not explained the specifics of its services. In turn, the Company argued that the plaintiff had failed to exhaust the proceedings and contended that the information requested by the plaintiff did not refer to the public services, the rates, and the administrative functions performed by the Company, and therefore it does not correspond to its duties.
On September 6, 2006, the Civil District of Santiago dismissed the Company’s claim of the non-exhaustion of prior proceedings. It held that the plaintiff’s lawsuit was well founded since the information requested constituted public information, given that it did not refer to tax secrecy or banking secrecy. However, on appeal, The First Civil Section of the Superior Court of Justice of Cusco reversed the decision by determining that although the Company was a private legal entity and had an obligation to provide information regarding public services it offered, the purchase and sale of the property it owned did not constitute public information.
Vidal lodged a constitutional harm action (recurso de agravio constitucional) against the aforementioned tribunal and its decision, before the Second Section of the Constitutional Court of Peru.
The main issue that the Second Section of the Constitutional Court of Peru analyzed was whether the Company had the obligation to provide the requested information in light of its legal nature and regime. Subsequently, the Court analyzed the nature of the required information. After concluding that the Company, in fact, provided a public service and that the required information concerned matters of general interest related to the Company’s mission, the Court ordered the delivery of the information.
The Court started its analysis by highlighting that ELECTRO SUR ESTE S.A.A. was a company that provided a public service, constituted under the regime of a private law legal entity, but with the State as the majority shareholder. Thus, the Court noted that under the National Fund for the Financing of the State Entrepreneurial Activity -FONAFE-1- 3, the Company was considered a State company.
The Court underscored that private legal entities are not entirely exempt from disclosing information; on the contrary, the Court noted that they could sometimes hold public information that individuals may require. The Court explained that according to Article 2, paragraph 5 of the Constitution, all individuals have the right to request, without a statement of a cause, the information they require and to receive it from any public entity within the legal term at its respective cost.
Moreover, the Court stated that in Article 2 of the Law of Transparency and Access to Public Information, the concept of Public Administration entities must be understood as defined by Article 1 of the Law of General Administrative Procedure, which establishes that the only case of private legal entities from which information may be requested, invoking the right of access to public information are those that under the private regime provide public services or exercise administrative functions (under concession, delegation or authorization of the State).
Furthermore, the Court stated that under Article 9 of the Law on Transparency and Access to Public Information, private entities that provide public services or perform administrative functions are obliged to inform about the characteristics of the public services they provide, their rates, and the administrative functions they perform.
Turning to the case at issue, the Court recalled that the services supplying electricity constituted a public service since its function satisfied the collective needs or general interest. The Court explained that in light of the concept of administrative functions that the Company performed included the information related to acts of management and disposition of the Company’s assets. Accordingly, the Court noted that information concerning the administrative acts of the Company as an electric energy supplier constituted public information, subject to the right of access to information. Therefore, the Court considered that the transfer of the property in question constituted an administrative act because the management of state-owned assets was carried out through it. Taking the latter into consideration, the Court found the plaintiff’s claim founded and ordered the Company to provide all the documentation regarding the sale of the property to individuals and the documents evidencing the payment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Through this decision, the Constitutional Court of Peru expands the right to access information by holding that private entities that provide public services or perform administrative functions are obliged to inform about the characteristics of the public services they provide, their rates, and the administrative functions they perform.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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