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CIPPEC v. Federal Government, Department of Public Welfare, Executive Order 1172 of 2003, on action for protection Law 16.986

Case number:
C. 830. XLVI
Country:
Argentina
Date of decision:
26 March 2014
Court / Arbiter:
National Supreme Court of Justice (Highest Federal Court) ( Supreme )


Decision:

The government must legally provide access to information that is not otherwise prohibited from disclosure, and it is unreasonable to avoid disclosure when its negative consequences appear only abstract and conjectural.


Keywords:
Databases
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Privacy (harm to private interests, including life, health, safety)
RTI law

Case details:

Facts

CIPPEC, an NGO, requested in July 2008 detailed information from the Federal Department of Public Welfare about the beneficiaries, and their intermediaries, of financial assistance and the subsidies they received during 2006 and 2007. CIPPEC also urged the Department to adopt policies of transparency and access to information regarding those social assistance plans. The Department refused on the ground that the information requested could disparage the honor and infringe the privacy of the beneficiaries, especially as the beneficiaries were underprivileged.

 

Decision

Legal entities by their nature do not have sensitive data that could affect their honor or privacy. Therefore, the Department’s refusal to provide information is contrary to the principle of good faith that underlies the administration: opposing manifestly inappropriate arguments as grounds to avoid the international obligation on states to increase transparency in the management of public funds (United Nations Convention against Corruption, Article 10; and Article III (6) and (11), Inter-American Convention against Corruption) (para. 22). These same considerations apply to information regarding selection of the plans within the program, and amounts transferred, which do not affect the privacy of any person.

With regards to natural persons, the key issue lies in the difference between personal data (Law 25326 Section 5(2)(c)) and sensitive data (Executive Order 1172 of 2003, Annex VII Section 16). Personal data may be released, whereas sensitive data  may not. By refusing to release all data, the Department has ignored that difference, which would allow the government to comply with the constitutional duty of providing access to information while preserving the honor and privacy of individuals. Nothing in the request for information leads to the conclusion that sensitive data was requested. Thus, the Department’s arguments lack legal grounds and appear as mere excuses to obstruct access to information (para. 22).

The Court then considered whether the refusal to provide information met the reasonableness principle (para. 24). The Department claimed that access to, and re-release of, information that could be used to identify beneficiaries constituted an unwarranted intrusion into their privacy, and potentially a source of discrimination against underprivileged persons. Law 25152 requires the government to grant access to information concerning the management of public funds. The Model Inter-American Law on Access to Public Information specifically provides that “a complete list of subsidies provided by the public authority” is one of the key classes of information that should be proactively disclosed (para. 25).

To assure the publicity of acts of government, which characterizes a republican government, and the corresponding RTI, it is insufficient to provide the general rules that established the subsidy programs, the budgetary accounts assigned or quantitative statistics on the aggregate number of beneficiaries. On the contrary, publicity must reach all levels of the administration from the general rules to everything relating to its implementation (para. 26).

The request for information does not seek to intrude into the privacy of individuals but rather to obtain information necessary to ensure that the decisions of public officials when assigning subsidies meet the criteria set forth in the social welfare programs. Thus, refusal to grant access to information fails to give weight to the public interest in the information (para. 27).

With regards to the claim that the information may be potentially used as a factor for discrimination, this claim is purely dogmatic. The consequences argued are abstract and conjectural, and even if realized, they would not be a direct or immediate consequence but would require the actions of third parties. On the contrary, by enabling public oversight, arbitrary or unequal treatment may be detected and addressed, protecting the rights of the persons in the underprivileged class (para. 28).

Judgment (in Spanish)