Argentine Court Rules for Access Over Privacy

4 April 2014

The Supreme Court of Justice in Argentina has ordered the Ministry of Social Development to release information about persons who receive social welfare payments.

The case was won by CIPPEC (Centro de Implementación de Políticas Públicas para la Equidad y el Crecimiento – the Centre for the Implementation of Public Policies Promoting Equity and Growth), an Argentine nongovernmental organization. See decision in Spanish.

CIPPEC had requested the names of the beneficiaries (either institutions or persons) of specific social welfare plans.

The Supreme Court decided March 26 that protection of personal data was trumped by the public interest in the information.

This resolved a conflict between the access to information decree and the personal privacy and habeas data law. The court highlighted that the information does not belong to the State but rather to the people and that citizen control of public management could not be done if such information was not disclosed.

Ministry lawyers argued that the information was sensitive data on vulnerable people who might be stigmatized or discriminated against by its disclosure.

The judges of the Supreme Court, except Raúl Zaffaroni, said (in Google translation) that, “The beneficiary’s consent is not necessary when the information relates to the content listed is limited to name, national identity , social security or tax identification, occupation, date of birth and address.” The only sensitive data “are those that reveal racial and ethnic origin, political opinions, religious, philosophical or moral beliefs, trade union membership and data concerning health or sex life.”

The decision says there is a clear public interest in order for there to be comprehensive social control over the way in which the relevant officials have allocated these grants.

The judges said there is no obvious reason that providing this information would be detrimental to recipients, calling that perspective paternalistic and saying that help is not shameful. Transparency, not opacity, benefits the vulnerable, they wrote.

See also a column on the ruling by María O’Donnell and an article in Clarin (both in Spanish).

Other Implications Seen

The decision has broad significance, according to Eduardo Bertoni, the Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at the University of Palermo, who commenting on the case for

Bertoni wrote:

The recent case decided by the Argentinean Supreme Court, even it is not the first one decided on the matter, it is very important for different reasons.

First, the Judges cited the Inter-American system on Human Rights case law as one of the main base of their arguments. This is important because highlighted, one more time, the importance of the work of the Inter-American Commission on Human Rights, its Special Rapportership for Freedom of Expression, and the case law of the Inter-American Court of Human Rights.

Second, the decision is clear enough to say that Argentina needs an access to information law. It is a real shame that all the “neighborhood” already passed those kind of regulation and in Argentina the adoption of such law is pending.

Third, and more important, is the analysis of the Court regarding private data vis a vis access to information in matters of public interest. This last issue, I think, will have an enormous impact in future requests of information that, until now, were denied under the argument to consider some information as private information, and for that matter, protected.

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