27
JUNE 2006 Two Steps Forward, One
Step Backwards:
The Access to Information Campaign in Argentina
Which
is preferable, a severely flawed national access to information
law, or no law at all? Freedom of information activists
in Argentina had the "luxury" of debating that
unfortunate question until November 30, 2005, when the Argentine
access to information bill lost parliamentary status, sending
the campaign one humongous step backwards. More
>>
The
Argentine
Constitution does not include a general right of access
to public documents or information.(1)
Article 43(3) recognizes a right of individuals to access
and correct their own records held by public or private
bodies. Also Article 41(2) obliges authorities to provide
information on the environment. Many courts have recognized
and stressed the importance of this right.(2)
The courts have also recognized a number of cases under
Article 13 of the American Convention on Human Rights.(3)
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: N/A
Source:
UN Development Program, Human Development Reports
Data
The
Access
to Public Information Regulation was introduced by President
Néstor Kirchner in 2003.(4) It applies
to any agency, entity, organism or company established under
the jurisdiction of the Executive Power. The Regulation
applies also to companies that have received funds from
the government. Information is defined as any document,
recording, photograph, either in paper or magnetic media,
created or obtained by any of the persons or entities that
must comply with the Regulation or under its control, or
created with government funds, or if it is going to be used
in an official decision including official meetings. If
the information does not exist, the requested agency has
no duty to create it or compile it, unless there is a legal
obligation for the State to create it.
The
Regulation established a presumption of publicity of all
documents held by the subjects regulated by it. Access to
documents is free of charge, unless reproduction is necessary.
In that case the claimant must pay the price of requested
copies. Any person, individual or company, is entitled to
request and access public information without any requisite
of standing, subjective right or representation by an attorney.
Agencies have ten days to answer an access request.
There
are exemptions for documents and information affecting national
defence, foreign policy, trade secrets, legal advice of
government counsel, privacy and intimacy and sensitive data
under the Data Protection Act, and information that may
risk someone else's life.
There
is a right of internal appeal under the Administrative Procedure
Act. Under this Act any person who requested access and
did not received the information can file an administrative
appeal to a higher authority. However, the administrative
appeal is not mandatory so any party can choose to continue
the appeal internally or file a claim in the administrative
court. No cases have been filed under the Regulation.
Government
agencies that hold public information must organize an index
of the information in order to facilitate access. Public
information must be provided without any other qualification,
except those provided in the Regulation Decree. The government
must also generate, update and provide basic information
with the aim of guiding the citizenship in its access to
information. There is no provision requiring the government
to provide the structure and activities or organisation
of any agency. The government created a web site with a
list and access to the web sites of the state agencies(5),
and the Presidency maintains a web site(6)
with information about the meetings that public officials
have every day and description of all the agencies. The
Cristal web site(7) also publishes budget
information, lists of employees, and economic resources
already or about to be spent by the government on the Internet
as required by section 8 of Law 25.152.(8)
The
decree is generally considered good but there are continuing
problems with implementation and creating a culture of transparency.
A monitoring report conducted by the Association of Civil
Rights (ADC) and the Open Justice Initiative found that
of 140 information requests, 40 percent were not answered,
17 percent provided significant information, 14 percent
had their request transferred and 8 percent received an
oral refusal.(9) There are no published
court cases. The decree has two major problems. First, it
is a decree, so it can be amended at any moment by the Executive
Power. Second, a decree of the Executive Power cannot create
access obligations on the Legislative Power, the judicial
power and other independent bodies of government (like the
Ministerio Público or the Ombudsman). Thus, there
is a need for an FOI law that covers all the government.
In
March 2002, the Executive introduced the FOI bill in Congress.
Although some bills have been introduced before, this bill
was the first elaborated by the Executive Power with support
of NGOs and academics. It was approved by the House of Representatives
in May 2003 and was sent to the Senate. In the Senate, the
bill was significantly amended and it was returned to the
House in December 2004 where it languished. The Senate bill
was widely criticized because it imposed requirements for
access such as requiring the disclosing of the motive of
the request. Civil society groups are now reorganising to
make a push for a bill in the next Congress.
The
Law
Establishing Access to Environmental Information was
adopted in November 2003.(10) It guarantees
the right to access environmental information in the hands
of the national, provincial or municipal state and the city
of Buenos Aires, as well as autonomous entities and public
utilities. Access to environmental information is free for
any individual person or entity, except for the cost of
providing the information. A showing of a special interest
is not required. Access to environmental information can
be denied if disclosure can affect national defence, foreign
relations, trade secrets or intellectual property; works
of research that have not been published; and information
classified as secret or confidential by laws and regulations.
Denial of access by an agency must be reasonable. Once a
request is lodged, an agency has 30 days to provide the
requested information.
On
the provincial level a number of jurisdictions have enacted
FOI laws or regulations (by decrees of the governor) during
the last 5 years.(11) There are FOI bills
pending in the provinces of Neuquen, La Pampa, Mendoza,
Santa Fe, Chaco, Tucuman and Catamarca.
The
Personal Data Protection Act allows for individuals to access
their own personal information held by public and private
bodies.(12) It is enforced by the National
Directorate for Personal Data Protection.(13)
The Act was adopted after the Supreme Court in the case
"Ganora"(14) held that the intelligence
agencies cannot deny access without a reasonable explanation.
Under Article 17 of the Act, the data controller can deny
access to the file for reasons of national defense. Scholarly
commentary to the case points out that Article 17 considers
that individuals can use habeas data to access to their
personal information in such cases and that the exception
should be limited.(15) Even after "Ganora"
was decided, the Secretary of Intelligence usually denies
access to its databases invoking Article 17 of the Data
Protection Act and Articles 2 and 16 of the Intelligence
law.
Article
16 of the Intelligence Law provides that access to the information
from any intelligence source shall be authorized by the
President or the public officer to whom he may delegate
such authority.(16) The President delegated
this authority to the Secretary of Intelligence. However,
access to classified information is always denied.
2.
Corte Suprema, "Urteaga, Facundo R. C. Estado Nacional
- Estado Mayor Conjunto de las FF.AA. - s/amparo, ley nº
16.986" sentencia del 15/10/98 (LA LÑEY, 1998
- F, 237. Administrative Court of Appeals, sala 1ª,
"Fundación Accionar Preservación Ambiente
Sustentable c/ Comité Ejecutor Plan GayM Cuenca Matanza-Riachuelo
y otro s/ amparo", del 16/4/2002, LL 2003-A-254: Right
to access to environmental information, although not mentioned
in the Constitution, is a fundamental right. Plaintiff has
right to access to information about the environment but
case was declared moot because information was timely provided.
3.
Sofia Tiscorna & CELS v. Estado Nacional (E.D. 180-426
-1998-): FOI lawsuit invoking section 13 of the ACHR and
requesting access to information held by the police during
the military regime; CNCont. Adm, Sala 5, 25/3/02, "Monner
Sans c/Fuerza Aerea Argentina s/amparo": Recognized
right of an individual to access information about the situation
of civil airplanes and examinations performed by the Argentine
Air Force related to their security. The Court found he
had standing to request the information because he was a
passenger of airplanes; Poder Ciudadano v. National Senate
(November 29, 2004, Administrative Court of Appeals): Compels
the Senate to provide the plaintiff list containing number
of employees hired at the Senate, salaries, and other administrative
information; CNCont Adm, Sala 3, "C.P.A.C.F. c/E.N.":
Recognized right of the Public Bar Association to access
information contained in public files.
11.
City of Buenos Aires: Law 104.; Buenos Aires: Law 12.475/2000
on Access to information; Entre Rios: Decree 1169/2005;
Cordoba: Law 8803/1999; Santiago del Estero: Law 6753/2005;
Misiones Decree 929/2000; Salta: Decree 1574/2002; Jujuy:
Law 444/1999 and Decree 7930/2003; Rio Negro: Law 1829/84
and Decree 1028/2004; Chubut: Law 3764/92; Mendoza.
15.
See Sagues, Nestor, Derecho Procesal Constitucional,.
Acción de amparo, tomo 3, at. 682, 5 edición,
Buenos Aires, 1995; Dalla Via, Alberto y Basterra, Marcela,
Habeas Data y otras garantías constitucionales, Ed
Nemeses, at 130, Quilmes, 1999; Ekmedkjian, Miguel y Pizzolo
(h), Calogero, Habeas Data, Depalma, at 99; Gallardo María
y Omledo Karina, Habeas Data, LL 1998-A-977; SAGÜÉS,
Néstor P., "El hábeas data contra organismos
estatales de seguridad", LL 2000-A, 352.
"A 2003 National
Decree provided regulations to increase public
access to government information within the federal
executive branch and public institutions. The
Senate initiated a television program to transmit
sessions live, and the Chamber of Deputies' website
provided information on schedules and agendas
for committee meetings. The Supreme Court makes
public all its decisions, both judicial and administrative."
Civil
Society, Public Information and Media (rating 1-100):
76 (moderate)
Subcategory:
Access to Information Law (rating 1-100):
62 (weak)
"The Constitution
recognizes that information is public and citizens
have the right of free access; at the same time,
there is no law that grants access to information,
although such a regulation is under consideration
by the Low Chamber and the Senate. Theoretically,
citizens have the right to access government information;
when denied such access, they may petition the
courts for disclosure. The Internet has increased
access to such information. However, in many cases--the
national budget for example--technicalities make
this information difficult to read."
