Asociación por los Derechos Civiles (ADC) is a human rights NGO in Argentina. Its Freedom of Expression Project monitors how the government spends its public advertising budget for a practice of discriminatory allocation of funds. This was considered to be a violation of the right of freedom of expression by the Supreme Court of Argentina in 2008 in the case Editorial Río Negro contra Provincia de Neuquén.
In 2009, ADC asked the National Institute for Retirees and Pensioners (PAMI), a public corporation that provides services to the elderly, for information on its advertising budget and how it was allocated in May and June of that year. PAMI refused to provide such information, claiming that it was not part of the state and was not, therefore, subject to Decree 1172/03, a presidential order that establishes procedures to access information in the hands of the executive.
Facing this response, ADC sued PAMI through an acción de amparo, a quick legal mechanism to obtain the protection of the courts when a constitutional right is violated. ADC won the case at trial and appellate level, but PAMI took the case to the Supreme Court. In November 2012, the Court held a public hearing in the case. The Court only calls for public hearings on a few cases each year and only when it finds the case to be of utter importance.
The Court provided a broad and generous recognition of the right of access to information which –according to the Court— applies to all public entities and even to private persons who exercise public functions (para. 10). The Court found that denial of public information is an arbitrary and illegitimate act according to the principles of a democratic society; it severely affects rights that are reserved to all citizens as long as the information requested is in the public interest and is related to the principles of transparency and publicity of government affairs which are two fundamental pillars of a democratic society (para.7).
All bodies of the state fall under the scope of this right as well as private corporations that exercise public powers. In this regard, the Court stated that the focus must be on the services those corporations provide, or the role they play. The obliged subjects must include not only the state and its public bodies, at the local and national level, but also the state-owned corporations, hospitals and private institutions that act in a state-related capacity or exercise public functions (para.10).
The right of access to public information is provided for in the Constitution and in international human rights treaties that are incorporated into the Constitution and have a constitutional status (para.13). The Court quoted extensively from the Inter-American Court of Human Rights’ decision in the case of Claude Reyes v. Chile (2006) and from reports produced by the Office of the Special Rapporteur on Freedom of Expression of the Inter-American Commission of Human Rights.
Referring to the international standards set by the Inter-American Human Rights system, the Court sketched some basic features of this right:
- All persons have the right of access to public information (para.10).
- The state is obliged to provide an answer to all requests and provide reasons when information is denied (para.10).
- There is no need to show a specific interest in the information requested (para.9).
- The right has two dimensions: on the one hand, it protects the individual right to seek public information, on the other, the duty of the state to guarantee everybody's right to receive public information (para.10).
- The state has the duty to adopt legislative or regulatory measures to guarantee this right (para.10).
- The state is obliged to promote a culture of transparency within the state (para.10).
- The Court recognized the principle of maximum disclosure, according to which all information is presumed public (para.10).
- Limitations to access must be exceptional: they must be intended to satisfy an imperative objective (para.10).
- There is a direct and immediate relationship between access to public information and the distribution of public advertising budgets, because information is relevant to assess weather the right of freedom of expression is being respected or not (para.11).
The ruling is significant because it was the first time that the Supreme Court recognized explicitly the constitutional basis of the right of access to public information, and called upon the state to adopt a RTI act.
This summary has been adjusted from the summary drafted by Asociación por los Derechos Civiles (ADC).
Judgment of the Court.