OAS » IACHR » Special Rapporteurship for Freedom of Expression » 4 - Chapter III - Habeas data and the right of access to information (continued)

Freedom of Expression

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

C.        Access to information in the member countries

 

1.         Statistical analysis

 

1.                  The following table shows which countries have constitutional provisions with respect to freedom of information and the action of habeas data.  The Special Rapporteur encourages the member states to provide information to update, rectify, or enhance the statistics and information presented here so that the annual report for 2002 can reflect progress in the adoption of legislation and regulations pertaining to the right of access to public information and the action of habeas data.

 

Table references:

 

1.                  Are there constitutional provisions recognizing or referring to the action of habeas data?

 

2.                  Are there constitutional provisions recognizing free access to state-held information (in archives, databases, memos, electronic mail, etc. maintained by the various local and national government agencies)? 

 

 

Table 2.  Type of information used for this report

 

 

2.         Laws and practices on the right of access to information and the action of habeas data: information classified by country in alphabetical order

 

Argentina

 

2.                  According to the official information, the Argentine state has constitutional provisions providing for the application of habeas data and regulating the right to information, although regulations governing the exercise of this constitutionally enshrined right have still not been adopted by the National Congress.  Article 43.3 of the Argentine Constitution provides that:

 

All persons may file this action to ascertain what data about them is contained in public or private records or databases for the purpose of providing reports, and in the event of false or discriminatory information, can demand the removal, rectification, confidential treatment, or updating of the information concerned.  The secrecy of news information sources cannot be affected.

 

3.                  The official Argentine information refers to the constitutional reform of 1994, which introduced new rights and guarantees including the possibility of filing an amparo action in respect of personal information contained in public or private archives.  Thus, by invoking the action of habeas data, any person may file a request before the courts to be informed about data maintained in such records, and demand the removal, confidential treatment, or rectification of such data.

 

4.                  The report provided by the Ministry of Foreign Relations and Religion cites as an example, inter alia, the case of Facundo Raúl Urteaga, who filed a recourse against the national government, the Joint Chiefs of Staff of the Armed Forces and/or the Government of the Province of Buenos Aires (unanimous judgment of the 15/10/1998) "to obtain information existing in the databases of the National Department of Information (SIDE), the Army Intelligence Service, and others, concerning his brother Benito José Urteaga, presumably killed" in 1976 in the province of Buenos Aires.

 

5.                  The report also refers to the case "Rossetti vs. Dun & Bradstreet S.R.L.", citing the judgment of the National Civil Chamber, Room H, which stated that "the object of habeas data is a personal individual right: the right to privacy, defined as the right to decide for oneself the extent to which one's thoughts and feelings and the facts about one's personal life will be shared with others".

 

6.                  Jurisdiction for habeas data actions against public entities is reserved for the Administrative Law Chamber, as indicated in a judgment of March 1995 by the First Administrative Law Chamber of the province of Córdoba.

 

7.                  With respect to legal provisions, the National Congress, on 27 November 1996, approved Law 24.745, for the purpose of safeguarding personal data in respect of physical as well as legal persons.  This law determines the procedure for exercising the action of habeas data, but, according to the official report, "was not promulgated because the requisites necessary for the exercise of the action proved to be incomplete.  The report also clarified that a bill for the protection of personal data is currently under consideration and has already been approved by the National Senate.

 

8.                  A bill under consideration, already approved by the National Senate, would provide comprehensive protection for personal data held, for the purpose of issuing reports, in public or private archives, records, databases, or other data-processing media, to guarantee the right to honor and personal privacy as well as access to such information for the persons concerned.

 

9.                  The bill provides for the creation of a register for data archives and would require all public and private archives, records, and databases kept for the purpose of issuing reports to be entered in the register, which would be maintained by an oversight agency.

 

10.              In addition, according to unofficial information,[1] "there are no specific provisions in Argentina regulating access by the news media to public information documents.  If a government agency refuses to inform journalists about the content of a public document, such journalists are entitled, subject to prior demonstration of a legitimate interest and evidence of arbitrary conduct by the government agency, to file for amparo and a judicial order allowing them access to the document concerned.

 

11.              "In principle, all judgments are public, and journalists are entitled to examine their content directly without arbitrary interference from judges.  That is the principle established by the Supreme Court of Justice".

 

Bolivia

 

12.              According to the information collected, the Bolivian Constitution does not include provisions for the action of habeas data or regulating access to state-held information.  The Statute of Journalists, however, does include provisions in this regard:

 

13.              Article 9 of Chapter III of the Organic Statute of Journalists provides that:

 

No one may abridge the journalist’s freedom of expression and information, subject to prosecution for the violation of constitutional rights.

 

14.              Article 10 provides:

 

No one may adulterate or conceal news information in a manner prejudicial to the truth and the general welfare.  Journalists may publicly denounce such adulteration or concealment and shall be protected from dismissal or reprisals.

 

15.              Although these articles exist, the professional statute does not carry the legislative force necessary to effectively ensure the citizenry’s right of access to information or afford persons the protection inherent in the action of habeas data.

 

Brazil

 

16.              The Brazilian Ministry of Justice reported that Article 5 of the Constitution of the Federative Republic of Brazil provides:

 

All persons are assured of access to information and protection for the confidentiality of their sources when necessary for the exercise of their profession (section XIV).

 

There is also a provision for the concession of habeas data (section LXXII):

 

...to permit knowledge of personal information maintained in the records or databases of government or public agencies or to rectify data when the person concerned does not prefer to do so through informal, judicial, or administrative channels.

 

17.              The State of Brazil reported that the Supreme Federal Tribunal -- the highest court of Justice in Brazil -- has jurisdiction in cases of habeas data against the President of the Republic, the Chamber of Deputies, the Federal Senate, the Tribunal of Accounts of the Union, the Prosecutor General of the Republic, and the Supreme Federal Tribunal itself.  The Superior Tribunal of Justice has jurisdiction for cases of habeas data against the Minister of State, Commanders of the Navy, Army, and Air Force, and the Tribunal itself.

 

18.              The Ministry of Justice also indicated that there are legal provisions regulating the right to information.  Law 9.507 of 12/11/97 "regulates the right of access to information subject to the habeas data procedure", and Law 9.265 of 12/2/1996 "regulates section LXXII of Article 5 of the Constitution...”

 

19.              Law 8.159 of 8/1/1991 contains provisions "on national policy with respect to public, private, and other archives, regulated by decrees 1.173 of 29/6/1994 and 1.461 of 25 April 1995.  There are also two bills in this area, one in the Federal Senate and the other in the Chamber of Deputies.

 

20.              Law 268/99, approved by the Federal Senate, "contains provisions on the structure and use of personal databases and the habeas data procedure".

 

21.              Law 8.159 (8/1/1991) "contains provisions on national policy with respect to public and private archives", regulated by decrees 1.173 and 1461.

 

22.              Requests for information in Brazil are processed free of charge (Article 5, LXXII, and Law 9.265) and can be filed by physical or legal persons exercising their own rights or individual interests, organizations and associations representing collective rights and interests, and legally established persons or associations in the case of general rights and interests.

 

Canada

 

23.              Through its permanent mission to the OAS, the Canadian government responded that there is no constitutional provision recognizing or referring to habeas data.

 

24.              Paragraph 2b of the Canadian Charter of Rights and Freedoms establishes the right of the media to access information referring to judicial proceedings, but this "does not include the general right of access to information generated in the process of government", since "in general terms, section 2b pertains to intellectual freedom and the right to communicate with others".

 

25.              By way of background information on case law, it was reported that in 1997, the Supreme Court of Canada ruled in favor of access to information in a case brought against the Minister of Finance.  The arguments were based on "the facilitation of democracy in helping to ensure that citizens obtain requested information and participate in a significant way in the democratic process..."

 

26.              With respect to legal provisions, private acts govern the protection of personal information held by government institutions, and the Access to Information Act guarantees the right, subject to certain exceptions, of access to files held by government institutions.

 

27.              Any physical or legal person present in Canada can file requests under the Access to Information Act, paying a fee of five Canadian dollars.  From 1 April 1998 to 1 April 1999, 14,340 requests for access to information were made under the Act.  Requests for information under the Privacy Act are free of charge.

 

28.              Requests under the Access to Information Act must be processed within a period of 30 days, although "under special circumstances" this period can be extended one time by government institutions.  The duration of this extension is not limited, and the reasons given for denial of information range from the exception invoked by Industry Canada and Health Canada, based on their right to confidentiality of commercial information, to the exception invoked by Foreign Affairs, based on its right to confidentiality of information received from other governments.

 

29.              The Royal Canadian Mounted Police (RCMP) and the Canadian Secret Intelligence Service (CSIS) can deny information "that may interfere with law enforcement or national security".  The Access to Information Act is limited by the exceptional circumstances indicated above, although the Act stipulates that such exceptions must be used in moderation and only when necessary.

 

30.              Finally, the system for archiving state information includes various provisions for the preservation of documents: the National Archives Act specifies that no federal government document may be destroyed without the permission of the National Archivist, who publishes an agenda indicating what documents can be destroyed and when.  The Access to Information Act was amended to incorporate a provision making the destruction of documents a criminal offense, as infringement of the rights of citizens to access information.

 

Chile

 

31.              Chile does not have specific provisions with respect to the application of habeas data or regulating access to state-held information for that purpose.  However, there are general provisions that can be interpreted and applied for the purpose of requesting access to information.

 

32.              According to official information, the 1999 reform of the constitutional organic law on government administration includes the right of access to information contained in state and private archives.  Article 11 bis of the Administrative Probity Act provides:

 

(...) public functions shall be exercised with transparency, so as to permit and promote awareness of the procedures, content, and basis of decisions taken in the exercise thereof.

 

The administrative acts of national government agencies and the essential supporting or supplemental documents they use shall be public.

 

33.              According to the official information received by the Special Rapporteur, this article indicates that in cases where information is not available to the public on a permanent basis, the interested party shall have the right to request it, subject to denial on the following grounds: that the information is reserved or secret pursuant to legal or regulatory provisions; that public disclosure would prevent the agency concerned from discharging its functions; that third parties referred to in or affected by information contained in the documents requested have objected to their disclosure; and that public disclosure would affect national security.

 

34.              Article 11 ter provides for the possibility of bringing action before a professionally qualified judge or a civil court in cases where the origin of the information being withheld is unrelated to national security or the national interest.  When national security or the national interest are invoked, this article provides that:

 

In cases where documents for information are denied on the grounds that their disclosure would affect national security or the national interest, the request shall be referred to the Supreme Court, which shall request a report from the authority concerned, to be communicated by whatever means the Court considers most expeditious, setting a time limit to that effect, following which the dispute shall be settled on the bases of the information available.

 

(...) Failure to provide the documents or background material concerned on a timely basis, in the form stipulated by the Court, shall be punished by suspension of the chief of the service concerned for a period of 5 to 15 days, and by a fine of two to ten monthly tax units.  If the chief of service persists in his attitude, these penalties shall be doubled.

 

35.              In August 1999, Chile enacted a law for the protection of personal data that includes certain provisions to protect privacy.

 

36.              Although there are general provisions in Chile that can be interpreted and applied in requesting access to information, Article 11 of the Administrative Probity Act provides that it is legitimate to limit access to information on the grounds that the effective functioning of government agencies would be impaired.  Various human rights organizations have expressed concern over this broad language, since it could give rise to inadequately founded abuses of discretional authority by government agents.[2]

 

Colombia

 

37.              Through the General Directorate of Special Affairs of the Ministry of Foreign Relations, the Colombian government reported that the action of habeas data is recognized as a fundamental right in Article 15 of the Constitution, whose Article 86 provides that:

 

All persons may seek protection from the courts... by means of preferential, preliminary proceedings... for the immediate protection of their fundamental constitutional rights, whenever these rights have been violated or threatened by an act or omission of any public authority.

 

38.              Article 15 of the Political Constitution of the Republic of Colombia of 1991 provides that:

 

All persons are entitled to their personal and family privacy and their good name, which the state must respect and protect.  They also have the right to investigate, update, and rectify information about them that has been collected and entered into the databases and archives of public and private entities.

 

39.              With respect to legal or regulatory provisions, Article 15 of the Constitution is supplemented by Chapter IV of the Code of Administrative Law Procedures, on the right to request information.  According to this chapter, any person has the right to consult documents on file in public offices and to receive copies of those documents, provided that they are not legally considered to be classified information and are not related to national defense or security.

 

40.              With respect to public information, Article 12 of Law 57 (5/7/1985) entitles any person to consult documents held by public offices and to receive copies of those documents.

 

41.              In 1998, the National Office of Civil Status Records received 319 requests for information and denied 60.  In 1999, the total number of requests rose to 458, and 98 were denied.  In all of these cases, the reason given for denying the information was that "the party requesting the information did not fulfill the requisites for obtaining access to it".  Any individual can exercise his right to request information from the state in Colombia free of charge.  The Code of Administrative Law Procedures provides that requests for information must be processed within 15 days of their receipt.

 

42.              According to information from nongovernmental sources, the rights to request and obtain access to public documents are established in Articles 23 and 74, Section 1, of the National Constitution.  These provisions guarantee the opportunity for journalists and the media to seek and gather information from public or private sources in order to evaluate and disseminate it in exercising their freedom of expression.[3]

 

43.              The exercise of these rights is regulated by the Code of Administrative Law Procedures and by Law 57 of 1985.  The general principle is that free access to official documents shall be restricted only if there is an explicit provision to that effect.

 

44.              However, the list of classified documents has recently been expanded, with the approval of a law under which disciplinary and administrative investigations conducted by oversight agencies in connection with disciplinary and fiscal responsibility proceedings are to be kept secret (Anticorruption Statute, Article 33).

 

45.              Since the reform of the Code of Criminal Procedures, the preliminary stage of criminal proceedings is subject to secrecy, whereas the full-trial stage is not.  In addition, according to Law 104 of 1993, known as of the Public Order Act, the Financial Institutions Guarantee Fund is required to maintain the confidentiality of information it subpoenas from registered financial institutions.

 

46.              In August 2001, the Congress promulgated and the President of the Nation signed Law 684 (State Security and Defense Act) together with supplemental legislation.  The Judicial Branch, on the other hand, has the power to invalidate the Law's entry into force, and a number of human rights organizations have brought action before the Constitutional Court to declare Law 684 unconstitutional.  Article 14 of the Law establishes a Superior Security and National Defense Council for the purpose of "guaranteeing the due planning, direction, execution, coordination and strengthening of all aspects of national authority, with a view to ensuring national security".[4]

 

47.              With respect to the classification of documents, Article 19 of Law 684 provides:

 

ARTICLE 19.  Legal reserve.  The Council’s deliberation and acts shall be confidential.  The primary and secondary defense documents mentioned in this Law shall likewise be classified.

 

Costa Rica

 

48.              Article 27 of the Costa Rican Constitution ensures the freedom to petition, individually or collectively, any public official or government agency, and the right to obtain prompt resolution. This right is protected by means of a summary procedure in the Constitutional Chamber in the case of arbitrary denial of information.

 

49.              This is an expeditious procedure commonly used by journalists, who under Article 27 of the Constitution must previously send a letter to the official from whom the information is being requested.  If an adequate response is not received within 10 working days, the summary procedure is instigated before the Constitutional Chamber, which conducts a hearing of the public official concerned.  If it is determined that the decision to deny the information was not satisfactory, the official is ordered to provide the information, subject to criminal prosecution for contempt should he fail to do so.[5]

 

Cuba

 

50.              There are no legal or constitutional provisions protecting or promoting free access to information in Cuba.  The legal system places a number of restrictions on the capacity to receive and disclose information.  In February 1999, a law was approved “to protect national independence and the national economy", known as Law 88, permitting the government to control the information that can be disclosed within the country.  This law establishes sanctions of up to 20 years imprisonment, the confiscation of personal property, and fines.  According to the information received, the journalists Bernardo Arévalo Padrón, Jesús Joel Díaz Hernández, Manuel González Castellanos, and Leonardo Varona are currently in prison for such alleged offenses.[6]

CONTINUES...

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