Against Automatic Secrecy: An Agentinian Case

17 June 2011

By Natalia Torres, CELE´s Senior Researcher

Articles on freedom of information in Latin America, written by the Center for Studies on Freedom of Expression and Access to Information  (CELE) in Argentina, will be a regular feature in See this article Spanish.

On April 19th, the Supreme Court of Argentina ratified the decision of the National Chamber of Appeals in Administrative Matters, supporting the demand of a requester to access his personal data held by the Secretary of Intelligence.

This information was crucial to the requester since it was a requirement to claim his pension. The agency, according to the ruling of the Attorney General, had denied the information claiming it was secret, believing its provision could put at risk the national security and considering that “…if the agency would follow the criteria of the Chamber,  it would provide information destined to the development of activities of intelligence to a terrorist that may be preparing an attack and needs to know how much the agency knows about him.”

The Supreme Court ratified both the decisions of the Attorney General and the Chamber requiring the agency to inform the existence of that information and to provide it unless any of the particular circumstances set as exceptions in the legislation were found.

In this sense, the Court, the Attorney General and the Chamber advised the agency – in a case that was more related to personal data than access to information – that any denial to provide information should be founded and that the sole reference to the national law of intelligence is not a good enough argument to deny the access to information.

The judiciary decision exposes the discretion of the agency and criticizes any form of automatic secrecy: “…even when the legislation protects the information regarding national intelligence, (…), this does not imply that every activity that security agencies perform should be reached by the exceptions.”

 The decision provides an effective judiciary practice in the recognition of the right to information in the region and follows the main lineaments of the Inter-American Model Law on Access to Information. The Model Law states that any agency that denies information should show – in a concrete and specific way – how the disclosure of information could cause harm to third parties or affect a right.

Case Highlights Need for Debate

The case – again, a habeas data case – highlights the need to debate on what should be consider public information and when a document should be preserved or disclosed because of national security or privacy issues.

It is well known that Argentina still needs to advance in this agenda. The country needs to follow the promising steps of the Decree 1172/03 that regulated the right to know at the executive level and needs to sanction a national law on access to information. This is, without a doubt, a pending issue in the civil rights agenda in Argentina, an agenda that has shown in recent years significant advances in the country – same-sex marriage and depenalization of defamation. We hope that all the meaningful advances registered in this area during the last couple of years will be complemented with the final adoption of the awaited legislation on access to information.

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