Freedom of Expression
4 - Chapter III - Habeas data and the right of access to information (continued)
Ecuador
1. There are a number of provisions in Ecuador that entitle individuals to obtain access to information held in government files. Article 81.1 of the Political Constitution of the Republic of Ecuador provides:
The state shall guarantee the right, in particular for journalists and social commentators, to obtain access to sources of information; and to seek, receive, examine, and disseminate objective, accurate, pluralistic, and timely information, without prior censorship, on matters of general interest, consistent with community values.
2. Section 3 of this same article provides:
Information held in public archives shall not be classified as secret, with the exception of documents requiring such classification for the purposes of national defense or other reasons specified by law.
3. Article 39 of the Law on the Exercise of the Journalistic Profession provides:
With the limitations established in this Law, professional journalists shall have free access to authorized information sources,to which end government agencies, private entities for social or public purposes, and private persons, shall provide such legal assistance as may be necessary.
4. Article 212 of the Penal Code provides for the punishment of persons impeding the exercise of the right of petition as follows:
Authorities who in any way impede the free exercise of the right of petition shall be punished with a fine of 40 to 100 sucres and imprisonment of one to six months.
5. Article 28 of the Modernization of the State Act provides:
All requests must be resolved within a period of no more than 15 days reckoned from the date of their submission, unless a legal provision explicitly provides otherwise. This practice shall not be suspended, and the issuance of decisions in response to requests or claims submitted by members of the community shall not be denied by any administrative agency. In all cases, once the specified period has elapsed, silence by the administrative agency shall be construed to mean that the request has been approved or that the claim has been resolved in favor of the claimant.
In the event that any administrative authority rejects a petition, suspends an administrative procedure, or fails to issue a decision within the period specified, criminal proceedings may be brought against such acts as contrary to the constitutionally protected right of petition, in accordance with Article 213 of the Penal Code, without prejudice to the exercise of other actions provided for by law.
Once it has been brought to their attention that a subordinate official has suspended an administrative procedure or refused to resolve it for a period of more than 15 days reckoned from the date of its submission, superior administrative authorities shall notify the Public Prosecutor of the district concerned for the purpose of instigating the appropriate judicial proceedings.
6. Article 32 of this same Act refers to access to documents, as follows:
Subject to the provisions of special laws, any party having an interest in the disposition of legally protected situations shall have the right of access to administrative documents held by the state and the various public sector agencies, so as to maximize the legitimacy and impartiality of government activities.
7. Article 33 provides for the enforcement of these legal provisions:
Public officials or employees who violate any of the provisions under this chapter shall be punished with dismissal from their posts, without prejudice to their civil, criminal, or administrative responsibility pursuant to other laws.
8. Article 94 of the Political Constitution of Ecuador guarantees the action of habeas data as follows:
All persons have the right of access to documents, data bases, and reports maintained by public or private entities referring to them or their property, and to be informed as to how and for what purpose such information is used.
They may request that the official concerned update, rectify, remove, or invalidate data that is erroneous or that illegitimately affects their rights.
If inaction results in injury, the affected party may seek compensation.
The law shall provide a specific procedure for obtaining access to personal data maintained in connection with national defense.
9. The Constitutional Enforcement Act provides for habeas data in Article 34:
National or foreign natural or legal persons who wish to obtain access to documents, data bases, and reports, in the possession of public agencies or of private natural or legal persons, referring to the aforementioned persons or to their property, and to be informed as to how and for what purpose such information has been or is to be used, may file an action of habeas data to obtain responses and require compliance with the protective measures prescribed in this Law by the agencies or persons in possession of such data or information.
10. Article 35 explains that the purpose of habeas data is to:
a) Require the possessor of the information to provide it to the claimant in a complete, clear, and accurate manner;
b) Obtain direct access to the information;
c) Require the person in possession of the information to rectify or remove it, or not to disclose it to third parties; and
d) Obtain certification that the person in possession of the information has rectified or removed it or has not disclosed it.
11. The limits to habeas data are defined in Article 36:
Habeas data shall not be applicable when it affects professional secrecy; when it can constitute an obstruction of justice; or when the documents requested are classified for reasons of national security. The removal of data or information cannot be requested when there are provisions of law requiring it to be maintained in public or private files.
12. Finally, provisions for enforcement are made in Article 43:
Public officials who are subject to removal and who refuse to comply with decisions issued by judges or courts pursuant to habeas data proceedings shall be immediately dismissed from their functions or posts by the judge or court concerned, without further formalities. Such is not the case, however, for officials appointed by the National Congress, who shall be dismissed by the National Congress at the reasoned request of the judge or court, subject to prior political judicial proceedings.
El Salvador
13. Article 18 of the Political Constitution of El Salvador provides for the right to petition the government, as follows:
All persons are entitled to address their written petitions, in due form, to the legally established authorities; to obtain a decision in response to their petition; and to be informed of the decision.
14. There are no regulations governing the exercise of this right in El Salvador, which makes its application difficult.
United States
15. In 1966, the United States approved the Freedom of Information Act (FOIA), which requires federal agencies to offer access to documents of public interest. Exceptions to the Freedom of Information Act include the following: information on national security, the internal regulations and policies of government agencies, matters specifically exempt from disclosure by statute, trade secrets, and other secret information pertaining to business, letters and memorandums between government agencies and individuals, personnel files and medical histories, bank information, police files, and geological and geophysical information.
16. In addition to the Freedom of Information Act (FOIA) at the federal level, each of the 50 states has laws guaranteeing access to the official documents of state, county, and municipal agencies.
17. The Federal Privacy Act of 1974 also prohibits federal agencies from revealing information about a person without his or her written consent, unless cited by the Freedom of Information Act as the type of information that must be disclosed.
18. In addition to laws providing access to files and documents, other laws, known as "access to government" laws, require state and local agencies to make most of their meetings open to the public.
19. The Federal Access to Government Act of 1976 applies to all federal agencies. All agency meetings must be open to the public, unless the law provides otherwise, such as when personal matters are being discussed. In such cases, the agency in question must notify citizens in the Official Gazette, at least one week in advance, as to the time, place, and subject of the meeting, as well as the name and telephone number of a contact person for additional information.[1]
Guatemala
20. Article 35 of the Political Constitution provides that:
Access to information sources is free, and no authority may limit that right.
21. With respect to state-held information, Article 30 of the Guatemalan Constitution provides that:
All government acts are public. Interested parties have the right at any time to obtain reports, copies, reproductions, and certifications upon request and the exhibition of such records as they wish to consult, unless they pertain to military or diplomatic matters of national security, or data provided by individuals subject to confidentiality.
22. With respect to habeas data, Article 31 provides that:
All persons have the right to know about information pertaining to them in state archives, files, or other records, and its intended use, as well as to correct, rectify, and update such information. Records and files regarding political affiliation are prohibited, with the exception of those maintained by election authorities and political parties.
23. Although article 30 and 31 of the Constitution establish the general principle of public disclosure of government acts and the action of habeas data, there are no provisions in Guatemalan law regulating the effective exercise of these rights. Nor is there an independent body to which appeals can be filed when information is withheld.
24. From April 2001, the Guatemalan government submitted a bill on access to information to the Congress of the Republic, regulating the right to state-held information and the action of habeas data.
Honduras
25. From a legal standpoint, there is no provision impeding media access to official sources, except for preliminary criminal proceedings or when disclosure may affect family privacy or persons under legal age. The legal provision establishing the obligation to inform is contained in Article 80 of the Constitution:
All persons or associations of persons have the right to present petitions to authorities for reasons of individual or general interest and to obtain a prompt response within the legally specified period of time.
26. The exercise of this right is not regulated in Honduras, which makes its application difficult.
Jamaica
27. There is no freedom of information act or any public or private agencies that can be compelled to give information to the press. There are, however, a number of avenues of recourse through which information is made public by law, guaranteeing access by the public, including the press, to files and documents. These processes refer to the records and documents of the Office of the Registry of Business Enterprises, the Title Registry, and the Registry of Births and Deaths. The registries of corporate shareholders and business executives are also public.
Mexico
28. The Political Constitution includes two provisions concerning access to official information. Article 8 provides that:
Public officials and employees shall respect the right of petition, provided it is exercised in writing and in a peaceful and respectful manner; with regard to political matters, however, only citizens of the Republic may avail themselves of this right.
A written decision shall be issued in response to all petitions by the authority to whom they are addressed; such authorities have the obligation to inform the petitioner of such decisions within a brief period of time.
29. According to information provided, the approval of legislation regarding access to public information is currently under consideration. It should be noted that in September 2001, the Department of Government Affairs initiated a public consultation project to gather opinions concerning the promulgation of a law providing access to state-held information. In October 2001, representatives of 75 academic institutions, nongovernmental entities, and media organizations in the country formed a technical committee to develop legislation for access to public information, which was shortly to be submitted to the Federal Congress for discussion and approval.
Nicaragua
30. The only provision related to freedom of expression, the very general Article 52 of the Constitution, provides that:
Citizens have the right to file petitions, denounce irregularities, and express constructive criticism of the state or any authority, individually and collectively; to obtain a prompt decision and response; and to be informed of the decision within the periods of time established by law.
31. Article 66 provides that Nicaraguans have the right to truthful information and, in exercising that freedom, may seek, receive, and disseminate information and ideas, orally, in writing, in graphic form, or by any other medium of their choice.
32. Article 26 of the Constitution provides for the possibility of obtaining all information contained in official files, and the reasons and purpose for which the information is held, when it pertains to the person requesting it:
All persons have the right to:
1. Their private life and that of their family.
2. The inviolability of their home, correspondence, and communications of every kind.
3. Respect for their honor and reputation.
4. Knowledge of all information about them registered by state authorities, as well as the right to know why and for what purpose this information is held.
33. The right of access to information has been made more difficult by restrictions imposed by other provisions, including those of the Penal Code, which make it a criminal offence to reveal state secrets and official information (Articles 538 and 540). Information is classified as "very secret", "secret", and "confidential" (Article 540). All information originating from sources within the government as a direct result of the conduct of official business, shall be considered "Official Information" and its disclosure shall be subject to limitations guaranteeing the security of national defense.
34. Article 1 of the Law Regulating Information on Internal Security and the National Defense of 1980 provides that the media may not disclose news or information compromising or undermining the country’s internal security or national defense.
35. This provision includes the communication of information or news on such matters as armed conflict, assaults on government officials, etc. without first reliably verifying the veracity of such information or news with the National Reconstruction Government Council or with the Ministry of Interior or Defense.
36. As indicated in the section on international provisions on the public right to state-held information, the use of broad language to restrict access to information on grounds of national security could give rise to abuses of discretional authority by state agents.
Panama
37. On 22 January 2002 a law on transparency in government was enacted which will institutionalize the action of habeas data. This law provides that all persons have the right to request and receive truthful and timely information held by government authorities or any institution. This law also indicates exceptions with respect to information considered confidential or restricted. Confidential information includes individual medical and psychological data; information on the private lives of individuals, including their family affairs, marital activity, or sexual orientation; criminal and police records, correspondence and conversations by telephone or any other audiovisual or electronic media; and information concerning minors.[2]
38. The constitutional provision with respect to the right of petition, Article 41, provides that:
All persons have the right to present petitions and respectful complaints to public servants in pursuance of social or individual interests, and to obtain a prompt decision.
The public servants to whom the petition, consultation, or complaint is presented shall reach a decision in the matter within 30 days.
The law shall provide for sanctions punishing violations of this provision.
39. With respect to legal provisions, Law 36 (5/6/1998) reinforces the provisions concerning the right of petition, and Article 837 of the Administrative Code explains that:
All individuals have the right to receive copies of documents existing in the secretariats and archives of administrative offices, provided that: the documents are not classified; the person requesting the copy provides the necessary paper and pays the fees specified in Book 1 of the Judicial Code; and that the copies can be removed under the inspection of an employee of the office concerned, without interfering with his work.
40. The constitutional provision on the right of petition is regulated by Law 15 of 1957, which provides that officials who do not respond to a petition within 30 days shall be punished with a fine of the $10 to $100 the first time and double that amount for subsequent occurrences. Officials who fail to respond on more than three occasions are to be dismissed.
41. In cases where the petition is denied, the Administrative Law Judicial Proceedings Act establishes the procedure to be followed during the course of administrative proceedings, which includes the following avenues of recourse: the recourse for reconsideration, filed with the administrative official of the first instance for clarification, modification, or rescission of the decision; the recourse of appeal to the immediate supervisor, for the same purposes; and those indicated in the Judicial Code.
42. The Panamanian government indicates that there are legal criteria for classifying state information as restricted, and therefore not for public use, which apply to confidential information or classified documents (Articles 834 and 837 of the Administrative Code).
Paraguay
43. The Ministry of Justice and Labor reported that the constitutional guarantee for habeas data is enshrined in Chapter XII of the Constitutional Guarantees, Article 135:
All persons may obtain access to information and data referring to them or to their property maintained in official or private records of a public nature, and to know how and for what purpose the information is used. They may file requests with the appropriate judicial authorities that such information be updated, rectified, or destroyed if it is erroneous or legitimately affects their rights.
44. The responses pertained more to the right to inviolability, and to the principle that state agencies not provide information to any person other than the interested party, than to the right of access to information per se.
45. Article 28 of Chapter II of the Constitution recognizes:
... the right of persons to receive truthful, responsible, and impartial information. Public sources of information are freely accessible to all. The law shall regulate the modalities, time limits, and corresponding sanctions to ensure the effective exercise of this right.
46. Article 135 of the Paraguayan Constitution mentions that:
No competent judicial magistrate may decline to hear an action or recourse provided for in the preceding articles; magistrates who do so unjustifiably shall be subject to prosecution and removal as the case may be. In their decisions, magistrates shall also rule on the responsibility authorities may have incurred by virtue of their illegitimate acts, and in the case of prima facie evidence of criminal conduct, shall order the arrest or suspension of the parties concerned, as well as any other precautionary measures that may be appropriate to more effectively determine such responsibility. In addition, if the magistrate has the jurisdiction to do so, he shall conduct preliminary proceedings with the intervention of the Public Prosecutor’s Office; otherwise, the case shall be referred to a magistrate with jurisdiction for prosecution.
47. An interesting feature of the Paraguayan legal system is the Constitutional Guarantees Reception Desk, created by Decree 83 of the Supreme Court of Justice (4/5/98), for the purpose of computerized receipt and distribution, by lot, of amparo, habeas data, and habeas corpus cases filed in the capital of the Republic to the 36 lower courts competent to hear such cases.
48. The action of habeas data is exempt from the payment of court fees and may be filed in respect of the various government agencies, nongovernmental organizations, national or multinational enterprises, any individual, organization, social or political association, or legal person. Between 20/10/98 31/3/2000, the Reception Desk for the Supreme Court of Justice received 1,038 habeas data petitions.
49. Once the judge reaches a decision, state agencies have three days to provide information, but, according to the Ministry of Justice and Labor of Paraguay, this time period may vary according to the type or content of the information. "In general, magistrates adhere closely to the legal time limits, and response times do not exceed five working days".
50. The only case in which information may be denied is when "the information requested is classified for reasons of state security".
51. It should be mentioned that in July 2001, the Executive Branch promulgated Law 1728 on Administrative Transparency and Free Access to Information, for the purpose of promoting transparency in government and ensuring access to information. However, this law provoked national and international protest, since it contained several articles imposing serious restrictions on the right of the press to access official documents, undermining transparency in government and allowing authorities extensive discretion to reject petitions.[3]
52. In late August 2001, civil society organizations in the Alliance for the Defense of Freedom of Expression and the Right to Information[4] submitted a new bill to the Chamber of Deputies on Free Access to Public Information, representing a thorough overhaul of the repealed Law 1728. This new bill is currently under consideration by the Congress.
Peru
53. In the case of the Government of the Republic of Peru, responses to the questionnaires sent by the Special Rapporteur were provided by the Ombudsman's Office, which indicated that "the action of habeas data is regulated by Article 200.3 of the Political Constitution of Peru (1993)", clarifying that prior to that date, "the rights protected by this action were covered by the action of amparo".
54. Article 2.5 of the Constitution provides that:
All persons have the right to request the information they require and to receive it from any public agency. On the other hand, information affecting personal privacy and explicitly excluded by the law for reasons of national security is exempt from this right.
55. Article 2.6 of the Constitution provides:
All persons have the right to be assured that information services, computerized or otherwise, public or private, will refrain from disclosing information affecting their personal and family privacy.
56. In order for private or confidential data to be disclosed under this provision, the person or family must so authorize or give their consent to the information service concerned. The privacy of personal data that is of a public character is not protected. Data of a public character means information known to a large number of people, without the knowledge of the party concerned, such as a person’s first and last name.
57. Case law by the Superior Courts and the Constitutional Tribunal (case 666-96-HD) indicates that it is possible:
...to gain access to information records stored in data processing or computerized information centers, irrespective of its nature, for the purpose of rectifying, updating, or excluding certain personal data, or preventing the dissemination of information that may violate the constitutional right to privacy.
58. With respect to legal provisions, Law 26.301 (1994) regulates the application of habeas data and Article 200 of the Constitution. The second paragraph of Article 1 of Law 26.301 on habeas data establishes the levels of appeal for cases where information requests are denied:
If the rights affected pertain to information held in court files, be they jurisdictional, functional, or administrative, and irrespective of the form or media in which they are stored, the complaint shall be heard by the appropriate Civil Chamber of the corresponding Superior Court of Justice...Lower Court rulings will in this case be issued by the Civil Chamber having heard the complaint. This same principle shall apply to the functional or administrative files of the Public Prosecutor's Office.
59. Appeals are heard by the Constitutional and Social Rights Chamber of the Supreme Court of Justice, whose rulings may in turn be appealed by extraordinary recourse to the Constitutional Tribunal. The cost of obtaining information through recourse to habeas data in Peru varies.
60. Article 110 of Law 27444 of the General Administrative Procedures Act provides that information can be requested as follows:
Section 1: The right of petition includes the right to request information held by an entity in accordance with the provisions of the Constitution and the law.
Section 2: Entities establish mechanisms for responding to requests for specific information and the ex officio supply to interested parties of information of general public interest, including by telephone.
61. The Ombudsman's Office indicated that it did not have information on the number of habeas data requests denied, although it cited the most recent report by the Ombudsman to the Congress of the Republic as noting "the existence of a culture of secrecy".[5]
Dominican Republic
62. The Government of the Dominican Republic indicated that Section 10 of the Constitution contains provisions recognizing the right of habeas data and access to information held by the state: "Except with their own consent, there shall be no obstruction to the freedom of expression of individuals, including freedom of opinion without interference, freedom to communicate their ideas and information without interference, and freedom from interference in their correspondence". The government also reported that there are no judicial precedents, legal provisions, or proposed legislation in this regard, nor a system of, or criteria for, the selection and storage of data by the state.
63. Article 8.10 of the Constitution provides that the media have free access to government and private news sources consistent with public order and national security.
Trinidad and Tobago
64. In its response to the Special Rapporteur’s questionnaire, the Government of Trinidad and Tobago cited general constitutional provisions that serve to protect freedom of information, such as "freedom of thought and expression", or "the right to express political opinions". Immediately afterwards, however, it recognized that the Constitution of Trinidad and Tobago does not contain provisions recognizing free access to state-held information. Nor are there judicial precedents in this area, or in the area of habeas data.
65. In the absence of specific legal provisions in this regard, reference was made to recognition of the Freedom of Information Act as the applicable legal provision:
All persons shall have the right to obtain access to official documents.
All persons are legally entitled to request information from various government agencies.
66. The procedure for requesting and obtaining information is free of charge, unless copies in printed form or other information storage formats, such as diskettes, tapes, etc., are requested.
67. If the information is denied, the requesting party must receive written notification, affording him the reasonable opportunity to consult with a government representative, who is required to provide the requesting party with the information needed to continue the procedure and renew the request. The reasons for denying the information must also be given to the requesting party, who must be informed of his right to appeal the decision to the High Court.
Uruguay
68. There is no provision whatsoever requiring the state to disclose information, or legal or judicial mechanisms obliging the state to provide information.
69. Although the constitutional clause that permits citizens to submit petitions to the government, contained in Article 30, provides a means to obtain responses to their petitions to government officials, this provision does not guarantee access to information requested by individuals. According to the information received, a bill on amparo informativo (habeas data) is under consideration by the Parliament.[6]
Venezuela
70. Article 28 of the Constitution, reformed in 1999, provides for habeas data as follows:
All persons have the right of access to information and data held in government or private files referring to them or to their property, except where the law provides otherwise; to know why and for what purpose the information is kept; and to file requests before the competent court for the updating, rectification, or destruction of information that is erroneous or that illegitimately affects their rights. They may also obtain access to documents of any kind containing information of interest to communities or groups of individuals.
71. Article 59 of the Organic Law on Administrative Procedures of 1 July 1981, also provides for public information or access to government sources for interested parties or their representatives. However, documents classified as confidential are exempt.
72. Article 51 of the Constitution establishes the right to submit petitions to the authorities. According to this provision, all persons have the right to represent or address petitions to any authority or public official on matters within their purview and to obtain a timely and adequate response. Violations of this right are punishable by law and can result in dismissal.
73. As indicated in the section on international provisions with respect to the right of the public to state-held information, the use of broad language to restrict access to information for reasons of national security or "confidentiality" can give rise to abuses of discretional authority by state agents.
D. Final Observations
74. As indicated by the information presented here, only seven countries in the hemisphere have specific provisions and regulations permitting access to state-held information and the action of habeas data. According to the information collected, practices contributing to a culture of secrecy with respect to state-held information continue to be followed in most countries, because of insufficient awareness of the specific provisions regulating this exercise, or because, given the vague, general language used in the provision, agents in possession of such information opt in favor of denying it, out of fear of punishment. These practices represent a threat to the constitutional democratic system, permitting a greater incidence of corruption.
75. Information is of essential importance to the proper functioning of democracies in the hemisphere. If societies are not fully aware of the acts and policies of their governments, full and informed participation by individuals in the processes of transformation, debate, and strengthening of democratic institutions is impossible. The right in a society to be informed helps in large part to guarantee the effective functioning of political and social systems based on democratic participation.
76. The Special Rapporteur recommends that the member states adopt the measures necessary to guarantee these rights in accordance with international standards and with the commitment adopted at the Third Summit of the Americas, held in Québec City, Canada, through:
1. The promulgation of laws permitting access to state-held information and supplemental provisions regulating the exercise of such access, as well as the promulgation of laws providing for the right of individuals to obtain access to personal data through the action of habeas data, taking international standards into account in this regard.
2. The existence of avenues of recourse for independent review to determine whether restrictions established for reasons of national defense are balanced, taking into account the protection of other fundamental rights consistent with international standards in the area of human rights and the right of a society to be informed, inter alia, about matters of public interest.
3. The introduction of legislation on civil society participation and consensus-building.
4. Policies promoting and disseminating information on these individual and collective rights as legal tools for achieving transparency in government, protecting personal privacy against the arbitrary or illegitimate handling of personal data, and promoting accountability to and participation by society.
[1] See the Freedom of Information Act, 5 U.S.C. Section 552
[2]Information obtained from the Panamanian newspaper La Prensa, 22 January 2002.
[3] The law impeded public scrutiny of any investigation under way into the conduct of a public official as well as into government purchases that could give rise to speculation. Information provided by the Committee for the Protection of Journalists, 30 July 2001.
[4] The Alliance for The Defense of Freedom of Expression and Rights to Information was created by the Journalists Union of Paraguay, with the participation of Human Rights Coordination, Paraguay, the Association of Users and Consumers, Sitrande (the electric power sector union), and Comunica (an association of community radios).
[5]Responses from the Office of the Ombudsman of the Republic of Peru to the questionnaire of the Special Rapporteur for Freedom of Expression.
[6]Uruguayan Press Association (APU) 22 January 2002.