Article 30 of Guatemala’s Constitution guarantees the right of the public to access information held by the state “except when military or diplomatic matters relating to national security or information supplied by individuals under the pledge of confidence is involved.”
The Guatemalan Constitutional Court has interpreted the scope of the Article 30 exemptions to disclosure at least twice. A 2005 advisory opinion (No. 2819-2004) provides a narrow interpretation of the exemption for “military or diplomatic matters relating to national security” subject to withholding. The opinion was issued at the request of the President of the Congress interested in an interpretation of whether the military secrets exemption applies to military purchases and contracts. The Court rejected such a broad reading of the exemption. The Court recognized legitimate withholding only for information that is part of “state policy” directed “to preserve the physical integrity of the nation and its territory, with the aim of protecting state elements from aggression from foreign or domestic belligerents.” (“El alcance de dicha excepción es para aquella información que es parte de la política del Estado encaminada a preservar la integridad física de la Nación y de su territorio, con el fin de proteger a los elementos conformantes del Estado de cualquier agresión de parte de grupos extranjeros beligerantes.”) The advisory opinion also recognized that an assertion of national security secrecy, or some other form of confidentiality, requires the presentation of some proof. (“…ha enfatizado que las autoridades al negarse a exhibir documentos públicos arguyendo que su naturaleza es de seguridad nacional o confidencial, deben, imperativamente, acreditar tal extreme …”).
In a 2008 decision, the Constitutional Court unequivocally upheld an appellate decision recognizing the authority of a trial court judge to order the Ministry of National Defense to release four military operational plans to the prosecution in the genocide trial of José Efraín Ríos Montt (No. 2290-2007). Lawyers for Ríos Montt, the former military dictator, had filed an amparo challenging the constitutionality of a lower court decision authorizing the prosecution to access certified copies of four military operational plans – Plan Victoria 82, Plan Sofia, Firmeza 83, and Operación Ixil. Ríos Montt rested his argument in part on the classification authority elaborated in Ministry of National Defense Agreement 6-2005. The Ministry of National Defense for its part intervened as a third party to assert that the documents constituted “state secrets” protected from disclosure under the exemption in Article 30 of the Constitution. The Constitutional Court, finding the amparo and the appeal frivolous and unfounded, upheld the lower court’s order of disclosure and ordered payment of both costs and a fine. (“…[N]o se acreditó que los documentos cuya exhibición se solicitó tengan la categoría de seguridad nacional…”).
Guatemalan defense and intelligence entities have denied or provided insufficient or incomplete responses to most requests for documents from military or intelligence archives, including from tribunals and investigators. Despite this Constitutional Court order, the military provided only Plan Victoria 82 and eight pages of the more than 200-page operational plan for Firmeza 83. The military asserted that the other two were restricted by law, unavailable or non-existent, and unrelated to human rights investigations and thus not subject to disclosure under Article 24 of the Law of Access to Public Information. Soon after, Plan Sofia was leaked to Kate Doyle of the National Security Archive and has been introduced in prosecutions of former military leaders in Spain and Guatemala.
Judgment of the Court