Supreme Court Justices Call on Congress to Pass a Law Guaranteeing Access to Public Information

On March 26, 2014 the Federal Supreme Court of Justice (the “Supreme Court”) unanimously granted an amparo action instituted by the Center for the Implementation of Public Policies Promoting Equity and Growth ("CIPPEC") against the Federal Ministry of Social Development to obtain information on certain programs managed by this Department.
In the ruling, three Justices noted "the urgent need for a federal law to regulate this important matter." Currently, at the federal level this matter is regulated by the Rules of Access to Public Information for the Federal Executive Branch approved as Annex VII of Decree No. 1172/2003 (“Decree 1172").

1. The “CIPPEC” Case
Faced with the refusal of a request made under the provisions of Decree 1172, CIPPEC instituted an amparo action (a summary proceeding aimed at guaranteeing constitutional rights) against the Ministry of Social Development, in order to obtain information on how the department ran the public budget allocated to specific social assistance programs.
In particular, CIPPEC requested detailed information regarding social assistance provided to individuals and corporations, the list of its recipients, processed transfers and subsidies that were granted in 2006 and 2007.
The amparo action was rejected in First Instance. Subsequently, Tribunal II of the Federal Court of Appeals on Administrative Law Matters reversed the First Instance decision, upheld the lawsuit, and ordered the Ministry of Social Development to provide the requested information.
Against this ruling, the Federal Government filed an extraordinary appeal to have the case heard by the Supreme Court.

2. The Supreme Court ruling – The Request to Congress to Legislate on This Matter
The Supreme Court, in a unanimous decision, rejected the arguments of the Federal Government and affirmed the ruling of the Court of Appeals.
The Supreme Court’s decision was composed of a majority opinion, signed by Justices Lorenzetti, Fayt and Maqueda, and two concurring opinions by Justices Argibay and Petracchi, and by Highton de Nolasco. Justice Zaffaroni did not vote.
In the main vote, after making reference to the divergent positions taken in the case by various administrative bodies with respect to the scope of the right of access to public information, Justices Lorenzetti, Fayt and Maqueda urged Congress to pass a law on this matter.
In this regard, it was stated that "it is essential that the lawmakers establish uniform guidelines of general application that can ensure the fulfillment of this right and the predictability in its application, in order to reduce the possibility of arbitrariness from those who are required to provide public information."
It was added that "this need [...] is a real social demand in our country" and that "it has also been strongly noted within the international community," citing opinions and legal instruments adopted within the framework of the Organization of American States and the United Nations.
In this context, Justices Lorenzetti, Fayt and Maqueda concluded that "it is clear that to ensure the effective fulfillment of the right to information, the State must urgently pass a law that, while safeguarding the international standards and the principle of reasonableness, comprehensively regulates how public authorities should satisfy this right.”

3. Regulatory and Case Law Context
At the federal level, access to public information is currently regulated by Decree 1172, which was the rule invoked by CIPPEC as the main basis for its claim to access the requested information.
Decree 1172 establishes the principle that "any person or legal entity, public or private, has the right to request, access and receive information," without having to meet any formality other than a written request detailing (i) the data that is to be accessed and (ii) identification of the applicant.
As exceptions to this principle, Decree 1172 provides for a number of cases when the request of information may be denied (among others, cases of privileged or confidential information, or involving industrial, commercial or other secrets; information about the State’s strategy in legal proceedings; sensitive data relating to personal information, etc.).
Upon the refusal or silence of the relevant administrative authority, the petitioner may institute legal actions.
Despite the straightforward nature of the procedure provided for in Decree 1172, in practice, the administrative authorities have been reluctant in many cases to provide the information requested by petitioners. To that end, the administrative authorities have applied a broad construction of the provisions of Decree 1172 that exclude access to public information.
Several bills were introduced in Congress in order to broaden and ensure access to public information after the enactment of Decree 1172. In 2010, a bill introduced by then Senator Daniel Filmus was approved by the Senate; however, the initiative was not approved by the House of Representatives. Other bills that were introduced have not yet reached sufficient consensus in Congress.
Meanwhile, in recent years, the Judiciary has been more responsive to the demand of access to public information. In several cases, the courts have granted amparo actions challenging the denial of requests made under Decree 1172. The Supreme Court’s decision in the "CIPPEC" case is consistent with this trend.

4. Final Comments
It may be expected that this Supreme Court ruling will help improve and render the regulation on access to public information more efficient.
As stated in the preamble to Decree 1172, the right of access to public information "is a prerequisite for participation that enables controlling corruption, optimizing of the efficiency of government agencies and improving the quality of life of people by giving them the opportunity to know the contents of the decisions that are taken on a daily basis to help define and support the goals for a better community."
Both the passage of a law on this matter, to improve the aspects of Decree 1172 which are deficient, and the existence of adequate judicial review, are of the utmost importance for the effectiveness of the right of access to public information in order to fulfill the aims laid out under Decree 1172.