Argentine Supreme Court Hears Significant FOI Case

26 November 2012

By Dolores Lavalle Cobo

Lavalle Cobo is an Argentine lawyer, member of Centro para la Información Ciudadana (Center for Citizen´s Information) and author of books and articles.

Nov. 22 was a significant day for the right of access to information in Argentina.

While in Congress the draft of a bill implementing access as a constitutional right is about to lose its force (See previous report), for the first time in the Argentine history a public hearing was convened by the Supreme Court of Justice to listen to arguments on an access to information lawsuit.

The plaintiff is the non-governmental organization Asociación por los Derechos Civiles (Civil Rights Association or ADC) and the defendant is Programa de Atención Médica Integral (Comprehensive Medical Attention Program or PAMI), the national health insurance agency managed by the Ministry of Health that provides free medical attention to senior citizens and retirees with very low incomes.

ADC had requested information from PAMI about the distribution and amount of funds set aside for advertising. PAMI denied the release of information alleging it was not subject to Executive Decree 1172 from 2003 that obliges agencies and other entities to provide public information to any person.

This outcome led ADC to file the lawsuit. Although it won the case at the Court of Appeals level, the defendant appealed the ruling before the Supreme Court of Justice.

Agency Asserts Non-Governmental Status

In the hearing, PAMI insisted that it is not part of the Executive because it´s a non-governmental public entity and that it´s not funded by the government. Thus, although PAMI recognizes access to information as a human right, PAMI’s argument in the lawsuit is that the access to information Decree 1172 is not applicable to PAMI.

The President of the Supreme Court, Judge Lorenzetti, asked PAMI in what way the release of information would affect PAMI and what were the reasons not to provide it.

PAMI´s legal representative argued that the institution actually provides information to the state, to the regulator and to the beneficiaries. Judge Lorenzetti asked what was the purpose of the trial if PAMI recognized the right of access to information.

Judge Argibay indicated it was a matter of legislation hierarchy. If access to information is recognized as a human and constitutional right in Argentina then a lower level rule – Executive Decree 1172- cannot go against, or affect, what is established in the Constitution.

Judge Maqueda asked about the source of PAMI´s funding and its relation with the Executive. He wanted to know whether PAMI´s economic resources come from the Executive and if they were included in the national budget. The answer was affirmative.

Information Not Sensitive

Judge Highton inquired if there was any sensitive data contained in the documentation required by ADC that could prevent the release of the documents. PAMI´s answer was negative.

Highton pointed that PAMI provides a service with high public interest. She then concluded that the discussion was purely theoretical and that if PAMI recognizes access to information as a human right the debate at the trial cannot be limited to the application of the Executive Decree 1172, but that it had to consider a much broader interpretation.

Plaintiff Advocates for Disclosure

 Then was the turn of the plaintiff, represented by a member of ADC´s Board of Directors. He said that the management of funds used by PAMI – that are public funds – must be known by the people. Disclosure should be especially mandated when access to information is a constitutional right.

He also pointed out the relation between the use of public funds for advertising – the information requested by ADC- and freedom of expression which can be affected when the funds are used in an arbitrary way. Finally, he requested the Supreme Court to establish a broad standard for the interpretation of the access to information right implemented by the Decree 1172.

Constitutional Standard Sought

The issues of the hearing were mainly focused on the constitutional aspects of the case.

 This has great relevance to the future of the right of access to information in Argentina.

If the Supreme Court concludes that the Constitution articles regarding access to information must prevail over the Executive Decree 1172, it will set an important standard. Such an interpretation would require many agencies and institutions that are not subject to the regulation, but handle important information sought by civil society, to provide information when duly requested.


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