Freedom of Expression

4 - Chapter III - Habeas data and the right of access to information

REPORT ON ACTION WITH RESPECT TO HABEAS DATA AND THE RIGHT
OF ACCESS TO INFORMATION IN THE HEMISPHERE[1]

 

 

A.         Introduction

 

1.                  The right to freedom of expression consists of aspects that are fundamental to the development and strengthening of democratic societies.  Freedom of expression consolidates all other freedoms within a democracy by facilitating the participation of members of society in the decision-making processes; by providing a tool for building a more tolerant and stable society; and by enhancing the dignity of individual human beings, through the right to expression and the exchange of ideas, opinions, and information.  Freedom of expression therefore provides a framework within which the conflicts inherent in any society can be debated and resolved without destroying the social fabric, and a balance between stability and change can be maintained.  In the words of the Inter-American Court of Human Rights, “freedom of expression allows open discussion of moral and social values and facilitates political discussion, which is crucial for democratic values”.[2]  Thus, when freedom of expression is obstructed, democracy loses its collective and permanent social dimension, and is reduced merely to a formal institutional arrangement in which social participation is not effective.

 

2.                  The Special Rapporteur, and the international community in general, recognize the importance of ensuring the right of access to information as a means of implementing policies of transparency and strengthening constitutional democracies.  In pursuance of the mandates issued by the Heads of State and Government at the Third Summit of the Americas, held in Québec City, Canada, in April 2001, the Rapporteur has undertaken to conduct an annual exercise to monitor the adoption of new laws and regulatory systems allowing the right of access to information and the action of habeas data to be exercised.

 

3.                  In this chapter, the Special Rapporteur reports on laws and practices in the 35 member countries of the Organization of American States with respect to the right of access to information and the action of habeas data.[3]

 

4.                  To this end, an official request for information was issued to the states using a standardized questionnaire, which included questions, inter alia, on current constitutional and legal provisions, application criteria, specific aspects of recourse, statistics, and draft legislation.

 

5.                  A similar effort was made to seek unofficial information from national and international nongovernmental organizations (NGOs).  The aim of the Special Rapporteur for Freedom of Expression here was to obtain a picture of the actual situation, as well as the official version thereof; the two did not coincide in many of the cases presented in this report.

 

6.                  Of the 35 member countries of the Organization of American States, only 10 replied to the questionnaire sent by the Special Rapporteur through the representatives of each country.

 

7.                  Responses to the questionnaire revealed in particular the absence of constitutional and legal provisions to guarantee access to public information in many countries of the hemisphere.  In the absence of more specific legislation, some states adapt generic provisions protecting, for instance, such broad categories as "individual freedoms".  Without systematic prosecution, such provisions clearly are of little use in applying a norm as specific as habeas data.  Some countries have legislation designed for this purpose, but since the language is ambiguous, information continues to be denied by government agencies abusing their discretional authority.

 

8.                  From a formal point of view, clear differences can be observed between countries that have already developed constitutional and legal provisions and those still operating on the basis of general norms, such as "amparo" or "freedom of expression and opinion" to protect the right to information.  Since work in this area in most of the member countries is still in its early stages, the Special Rapporteur recommends that states seek to introduce legislation guaranteeing both rights effectively.

 

9.                  The following paragraphs provide a brief description of the legal framework for the right of access to information and the action of habeas data followed by a presentation of the information gathered with respect to domestic provisions in this area in the 35 member countries.

 

B.        Legal Framework

 

10.              Article 13 of the American Convention on Human Rights and the IACHR Declaration of Principles on the Freedom of Expression are taken as the framework for legal interpretation.  The Special Rapporteur also consulted, among other sources, the Inter-American Press Association (IAPA), the Model Law on Access to Administrative Information for the Prevention of Corruption developed by the Anticorruption Office of the OAS, the principles of access to information for nongovernmental organizations, Article 19, and comments from the nongovernmental organizations Center for National Security Studies, Human Rights Watch, and other independent organizations dedicated to the protection of human rights and freedom of expression.

 

1.         Right to information within the framework of the freedom of expression

 

11.              Article 13.1 of the  American Convention on Human Rights provides that the right to freedom of expression and information: includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.[4]

 

12.              With respect to the scope of the freedom of expression and information, the Inter-American Court of Human Rights has stated that:

 

Those subject to the Convention have not only the right and freedom to express their own thoughts, but also the right and freedom to seek, receive, and impart information and ideas of all kinds ... the freedom of expression and information requires, on the one hand, that no one be arbitrarily hindered or prevented from expressing his own thoughts, and therefore represents a right of every individual.  But it also entails a collective right to receive any information and to have access to the thoughts of others[5]

 

13.              The right of access to information is an indispensable requisite for the very functioning of democracy.  In a representative and participatory democratic system, the citizenry exercises its constitutional rights and, inter alia, the rights to political participation, the vote, education, and association, by means of broad freedom of expression and free access to information.

 

Public disclosure of information enables citizens to monitor public administration, not only confirming its adherence to the law, which government officials have sworn to obey and uphold, but also by exercizing the right of petition and the right to obtain transparent accountability.[6]

 

14.              The absence of participation by society in terms of access to information that directly affects its members prevents the full development of democratic societies, increasing the potential for corrupt conduct in the administration of government and spawning policies of intolerance and discrimination.  The inclusion of all segments of society in the processes of communication, decision-making, and development, is fundamental to ensuring that the needs, opinions, and interests of individual citizens are taken into account in the processes of policy design and decision-making.  The interest that Article 13 of the Convention is designed mainly to protect is the formation of public opinion through the free exchange of information and healthy criticism of public administration.  This is clearly reflected in the Court's advisory opinion with respect to mandatory association membership for journalists:

 

The concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard... It is also in the interest of the democratic public order inherent in the American Convention that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.[7]

 

15.              Given the importance assigned to the right to information as a principle inherent in participation by and accountability to society, the Special Rapporteur has called upon the member states to incorporate laws concerning access to information and effective mechanisms for exercising such access within their legal systems, empowering society as a whole to express opinions, reasoned or in reaction to public or private policies and actions that affect its members.

 

2.         Access to public information

 

16.              As explained above, a fundamental consideration in the strengthening of constitutional democracies is the right to state-held information.  This right empowers citizens to gain a broad understanding of the functions performed by the various agencies of the state, allowing access to information, inter alia, on budgetary matters, progress toward stated objectives, and state plans to improve living conditions for society as a whole.[8]  Effective citizen control over public activities requires not only that the state refrain from censorship, but also that positive steps be taken to provide citizens with information. It is clear that if such information is not provided to all persons entitled to it, the exercise of freedom of expression cannot function as an effective mechanism for citizen participation or democratic oversight of government.

 

17.              This right is all the more important in that it is intimately related to the principle of transparency and public disclosure in respect of government activities. At the Third Summit of the Americas, the Heads of State and Government recognized that the sound administration of public affairs requires effective, transparent, and publicly accountable government institutions.  They also assigned the highest importance to citizen participation through effective control systems.[9]  In this context, the state represents a means to achieving the common good, and entitlement to information rests with the individual, who has delegated the administration of public affairs to representatives.

 

18.              The principle of transparency requires governments to play the role of service-provider, furnishing all duly requested documentation that has not been temporarily classified as exempt from the exercise of this right.[10]

 

19.              Such oversight is all the more necessary in that one of the most serious obstacles to the development of democratic institutions is the traditional practice of maintaining the secrecy of government activities, exacerbating the high levels of corruption that characterize certain governments in the hemisphere.  It should be noted that the denial of information in the genuine interests of protecting national security and public order is not inconsistent with the protection of human rights, although it is incumbent upon the state to demonstrate to independent judicial authorities that such restrictions are explicitly allowed by law and necessary for the protection of democracy.[11]

 

20.              One of the factors that have seriously affected the stability of democracies in the hemisphere has been corruption.  The lack of transparency in government has distorted economic systems and contributed to social disintegration.  Corruption has been identified by the Organization of American States as a problem requiring special attention in the Americas.  During the Third Summit of the Americas, the Heads of State and Government recognized the need to strengthen the fight against corruption, which "undermines basic democratic values, representing a threat to political stability and economic growth".  In addition, the Plan of Action of the Third Summit underscores the need to support initiatives to improve transparency and thus ensure the protection of public interests and the effective use of resources by governments in pursuit of collective interests.[12]  Within this context, the Special Rapporteur considers that corruption can only be combated effectively through a combination of efforts designed to raise the level of transparency in respect of government activities.[13]  Accordingly, any policy designed to obstruct access to information with respect to government activities poses the risk of promoting corruption within the institutions of the state, and thus weakening democracies.  Access to information represents a means of preventing such illegal practices, which are inflicting great harm on the countries of the hemisphere.[14]  Transparency in government can be increased by creating a legal framework enabling society to gain broad access to information.  In this context, the rule should be public disclosure of information on government activities as a public good, rather than the manipulation and concealment of government actions.

 

21.              The Inter-American Court of Human Rights has stated that access to state-held information represents a fundamental individual right that states have the duty to uphold.[15]

 

22.              Principle 4 of the IACHR Declaration of Principles of Freedom of Expression reads as follows:

 

Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.

 

23.              Principle 4 of the IACHR Declaration of Principles of Freedom of Expression establishes the parameters the state must observe in denying information in its possession.  Given the need to promote greater transparency in government as the basis for strengthening democratic institutions in the hemisphere, limitations with respect to the information contained in state archives must be exceptional.  Such limitations must be clearly established in the law and applicable only in the case of substantial and imminent detriment to a legitimate pursuit of public policy, and when the protection of such information must take precedence over the public interest in being informed.[16]  Petitions in respect of any act restricting access to information should therefore be considered on a case-by-case basis.

 

24.              As stated in the enunciation of this principle, the right of an individual to state-held information is not absolute.  The exercise of this right is limited by restrictions permissible for reasons of public order, national security, fiscal or bank secrecy, and/or the protection of individual honor or privacy.  The Special Rapporteur has alluded on various occasions to the scope of these restrictions, indicating that they should not be subject to state discretion, but rather, should be explicitly established by law, intended for the purpose of protecting a legitimate objective, and necessary for a democratic society.  Applying the criterion of proportionality in balancing the rights affected, access to information of public interests should be governed by the principle of presumption in favor of public disclosure, with the application of minimum restrictions only in exceptional cases.  The criteria for reserving information should be established clearly and precisely to permit judicial authorities to review the extent to which they are legal and reasonable in the light of the interests affected.[17]

 

25.              The Inter-American Court of Human Rights has stated that restrictions on the freedom of expression and information should be "judged with reference to the legitimate needs of democratic societies and institutions", since freedom of expression and information is essential for any form of democratic government.[18]  Within this context, therefore, the state must ensure that in cases of national emergency, access to state-held information will be restricted only for the period of time absolutely necessary under the circumstances, and that such restrictions will be lifted once the emergency has passed.[19]  The classification of information must be reviewed by an independent judicial authority capable of balancing the interest of protecting the rights and freedoms of citizens with national security.

 

3.         The action of habeas data

 

26.              One means of guaranteeing the right to protection against information that is abusive, inaccurate, or prejudicial to individuals is through access to public and private databases for the purpose, as necessary, of updating, correcting, removing, or reserving information about the individual concerned.  This action, known as habeas data, was introduced as a modality of the "amparo" process for the protection of personal privacy.  The procedure is used to guarantee access for any individual to information contained in public or private databases or records referring to him or his property, and when necessary, the ability to update, correct, remove, or reserve such information for the purpose of protecting certain fundamental rights.

 

27.              Principle 3 of the IACHR Declaration of Principles on Freedom of Expression provides:

 

Every person has the right to access to information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.

 

28.              The action of habeas data is based on the following three premises: (1) the right of every individual to undisturbed privacy;[20] (2) the right of every individual to obtain access to information about him in public and private databases in order to modify, remove, or correct sensitive,[21] false, biased, or discriminatory information about him;[22] and (3) the right of individuals to resort to the action of habeas data as an enforcement mechanism.[23]  This right of access to and control over personal data represents a fundamental right in many aspects of life, since the lack of judicial mechanisms for the rectification, updating, or removal of data would directly affect the right to privacy, honor, individual identity, property, and accountability in the collection of data.[24]

 

29.              The action of habeas data takes on even greater importance with the introduction of new technologies.  Through greater use of computers and the Internet, both the state and the private sector have rapid access to vast amounts of personal data.  It is therefore necessary to ensure that concrete channels exist to provide rapid access to information for the purpose of modifying inaccurate or outdated information contained in electronic databases, protecting the right to individual privacy.

 

30.              There is a particularly close connection between the right to privacy and the limits to freedom of expression and information.

 

31.              Articles 13.2 and 11 of the American Convention recognize and protect the right to privacy, honor, and reputation.  These articles recognize the importance of individual honor and dignity and establish the obligation to respect both rights.  They provide that these rights must be free of arbitrary or abusive interference or abusive attacks, and that all persons are entitled to protection by law against such interference or attacks.  All persons, therefore, have the right to privacy to preserve their private lives within a social framework clearly recognized by the law.

 

32.              Invasions of privacy generally consist of seeking and disseminating information.  The Special Rapporteur wishes to stress that both the right to privacy and reputation and the right to freedom of expression are not absolute; a harmonious balance between the two must be achieved if they are not to infringe on other rights.  With respect to Article 11, although the Convention does not specify the circumstances under which this right may be restricted or limited, the Inter-American Court has ruled that Article 32.2 of the Convention prescribes the rules for interpreting such restrictions:

 

The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.

 

33.              Thus, according to the Convention, the right to privacy must be established in accordance with legitimate laws, and its content and purpose must be consistent and in harmony with the general welfare, without unduly limiting the right to freedom of expression in the search for, and public disclosure of, inter alia, information of public interest.

 

34.              In recent years, recourse to the action of habeas data has become a fundamental instrument for investigation into human rights violations committed during past military dictatorships in the hemisphere.  Such actions, brought by family members of disappeared persons, and referred to as "the right to the truth", have taken their place as a mechanism for exacting accountability in the search for information concerning government conduct and for learning the fate of disappeared persons.  The right to investigation is also a subject of Article IV of the American Declaration on the Rights and Duties of Man,[25] which assumes an obligation for the state to facilitate access to information for the purpose of investigating public information, conduct, or policies.

 

35.              With respect to the relationship between the right to the truth and Article 13.1 of the American Convention, the Inter-American Commission on Human Rights argued before the Inter-American Court in the Barrios Altos case that:

 

The right to the truth is grounded in Articles 8 and 25 of the Convention, in that both are “instrumental” in the judicial establishment of the facts and circumstances surrounding the violation of a fundamental right.  In addition ... this right is rooted in Article 13.1 of the Convention, in that it recognizes the right to seek and receive information ... by virtue of this article, it is a positive obligation of the state to guarantee information essential for the protection of victims’ rights, ensure transparency in government and the protection of human rights.[26]

 

36.              In addition, the action of habeas data imposes certain obligations for entities that process information: the obligation to use the data for specific, explicitly stated objectives, and the obligation to guarantee the security of the data against accidental, unauthorized access or manipulation.  In cases where entities of the state or the private sector obtain data improperly and/or illegally, the petitioner must have access to that information, even when classified, so that individuals have control over data that affects them.  The action of habeas data as a mechanism for ensuring the accountability of security and intelligence agencies within this context provides a means to verify that personal data has been gathered legally.  The action of habeas data entitles the injured party, or his family members, to ascertain the purpose for which the data was collected and, if collected illegally, to determine whether the responsible parties are punishable.  Public disclosure of illegal practices in the collection of personal data can have the effect of preventing such practices by these agencies in the future.[27]

 

37.              In order for the action of habeas data to be effective, the administrative hurdles that must be overcome to obtain information must be eliminated, and simple, easily accessible systems enabling individuals to request information inexpensively must be put in place.  The result, otherwise, would be to establish a formal mechanism which in practice would not facilitate access to information.

 

38.              It must also be ensured that individuals resorting to the action of habeas data not be required to indicate why the information is being requested.  The mere existence of personal data in public or private records is sufficient reason in itself for the exercise of this right.[28]

 

39.              To sum up, the right of access to information and the action of habeas data, within the framework presented in this section, represent legal tools which can be used to achieve transparency in government, protect personal privacy against the arbitrary or illegitimate use of personal data, and ensure accountability to and participation by society.[29]

 

40.              The information collected on laws and practices in the hemisphere with respect to access to information and habeas data is presented below.

CONTINUES...



[1] The Special Rapporteur wishes to thank the journalists María Seoane of the Buenos Aires, Argentina, newspaper El Clarín for the investigation she conducted for this report in the section on existing legislation in each of the OAS member countries.

[2]Inter-American Court of Human Rights, Baruch Ivcher, Case No. 74.  Judgment of 6 February 2001, para. 143(e).

[3] During the Third Summit of the Americas the Heads of State and Government undertook to support "the work of the inter-American human rights system in the area of freedom of expression through the Special Rapporteur for Freedom of Expression of the IACHR, as well as proceed with the dissemination of comparative jurisprudence, and seek to ensure that national legislation on freedom of expression is consistent with international legal obligations".

[4] American Convention on Human Rights, Article 13.

[5] Ibídem, para. 30.

[6] OAS, Model Law on Access to Administrative Information for the Prevention of Corruption.  Regional Technical Workshop:  Guatemala, November 2000.

[7]Inter-American Court of Human Rights, Advisory Opinion OC-5/85 Series A, No. 5, para. 69.

[8] Ibídem.

[9] See Third Summit of the Americas, Declaration and Plan of Action.  Québec, Canada, 20-22 April 2001.

[10] See El Derecho de Acceso de los Ciudadanos a los Archivos y Registros Administrativos. Pomed Sánchez, Luis Alberto. Editorial M.A.P., Madrid, 1989, p.109.

[11] See In the Public Interest:  Security Services in a Constitutional Democracy.  Helsinnki Foundation for Human Rights and Center for national Security Studies, Bulletin 1, June 1998.  And A Model Freedom of Information, Article XIX, London, July 2001.

[12] See Third Summit of the Americas, Declaration and Plan of Action.  Quebec, Canada, 20-22 April 2001.

[13] See Inter-American Convention Against Corruption, Inter-American System of Juridical Information, OAS.

[14] Alfredo Chirino Sánchez, Ley Modelo de Acceso a Información Administrativa para la Prevención de la Corrupción, Departamento de Cooperación y Difusión Jurídica, The Regional Technical Workshop: Antigua, Guatemala, OAS, November 2000, p. 3.

[15] IACHR, OC 5/85, Series A. No. 5, para. 70.

[16] See El Derecho a Acceso a Información Publica.  Juan Pablo Olmedo Bustos and Ciro Colombrana López, Chile , p. 8.

[17] See In the Public Interest:  Security Services in a Constitutional Democracy.  Helsinnki Foundation for Human Rights and Center for National Security Studies, Bulletin 1, June 1998.  And A Model Freedom of Information, Article XIX, London, July 2001.

[18]Inter-American Court of Human Rights, OC-5/85 para.70.

[19] See Chapter IV, Article 27 of the American Convention on Human Rights, concerning the obligations of states in emergency situations.

[20] See Article 11 of the American Convention on Human Rights.

[21]"Sensitive data" in this context means any information concerning a person's private life.

[22] See Alicia Pierini, Valentín Lorences and María Inés Tornabene.  Habeas Data:  Derecho a la Intimidad.  Editorial Universidad, Buenos Aires, 1999 p. 16.

[23] See El acceso a la información como derecho. Víctor Abramovich and Christian Courtis.  CELS, 2000. p. 7.

[24] See Secretaria de Investigación de Derecho Comparado, Tomo 1 (1998) p. 121. Corte Suprema de Justicia de la Nación Argentina.

[25] Article IV of the American Declaration on the Rights and Duties of Man provides that:  "Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever".

[26]Inter-American Court of Human Rights, Barrios Altos (Chumbipuma Aguirre et al. vs. Peru) Series C No. 71 Judgment of 14 March 2001, para. 45.

[27] Víctor Abramovich and Christian Curtis.  El acceso a la información como derecho, para. 28.

[28] See Derecho a la Información:  Reforma Constitucional y Libertad de Expresión, Nuevos Aspectos. Miguel Angel Ekmekdjian. Ediciones Depalma (1996) p.115.

[29] Alfredo Chirino Sánchez, Ley Modelo de Acceso a Información Administrativa para la Prevención de la Corrupción, Departamento de Cooperación y Difusión Jurídica, The Regional Technical Workshop: Antigua, Guatemala, OAS, November 2000, p. 11