Bill on Access to Public Information

On April 8, 2016, the Federal Executive Branch (“PEN”, according to its Spanish acronym) submitted to the House of Representatives a bill that regulates access to public information (the “Bill”).

The House Committees on Constitutional Matters and on Budget and Finance have issued a joint opinion advising the approval of the Bill. A few amendments were made to the Bill submitted by the PEN. 

At present, Decree No. 1172/2003 governs access to public information held by agencies and other entities within the jurisdiction of the PEN.

In recent years, different sectors have demanded the enactment of a statute to regulate this matter. In addition, the Supreme Court has issued several rulings dealing with this matter, and it has also prompted Congress to address the issue of access to public information. Please see Marval News Nos. 138,144 and 156.

1.  Main Provisions of the Bill

According to the text of the joint opinion issued by the House Committees on Constitutional Matters and on Budget and Finance, the main provisions of the Bill are the following:

a.  Right of Access to Public Information

The Bill states that the right to access public information comprises the possibility of freely searching, accessing, requiring, receiving, copying, analyzing, processing, reusing and redistributing the information held by the Obliged Subjects (as defined below), which is restricted only by the limits and exceptions provided for in the Bill.

All the information created, obtained, transformed, controlled or held by the Obliged Subjects (the “Information”) is presumed to be public.

The Bill provides that any person or legal entity, either public or private, has the right to request and receive the Information. It is not necessary to allege any subjective right or legitimate interest; nor is legal counsel required.

b.  Obliged Subjects

The following subjects are obligated to provide Information (the “Obliged Subjects”):

1. The Federal Administration (both centralized and decentralized agencies);
2. The Legislative Branch;
3. The Judicial Branch;
4. The Public Ministry for the Prosecution;
5. The Public Ministry for Defense;
6. The Council of the Judiciary;
7. State-controlled corporations and companies (which includes any business organization where the Federal Government owns a majority shareholding or holds the majority decision-making power);
8. Corporations and companies in which the Federal Government or its agencies hold a minority shareholding, only with regard to that shareholding.    
9. Holders of concessions, licenses and permits over public utilities and public property; as well as Federal Government’s contractors and suppliers.
10. Any private entity which receives subsidies or contributions from the Federal Government (only regarding Information produced with  or related to the use of the public funds received);
11. Any institution or entity whose administration, custody or conservation is managed by the Federal Government.
12. Non-Governmental public legal entities (only regarding  public law matters);
13. Trusts comprised totally or partially by assets owned by the Federal Government;
14. Entities that have executed agreements with the Federal Government  on the field of technical or financial cooperation;
15. The Central Bank; and
16. Inter-jurisdictional entities where the Federal Government participates or is represented.

c.  Exceptions

The Obliged Subjects may only refrain from providing the Information when a statute so mandates or in any of the following cases: 

1. Expressly classified information, deemed as reserved, confidential or secret for reasons of foreign policy or public defense;
2. Information which disclosure may affect the functioning of the financial or banking system;
3. Industrial, commercial, financial, scientific, technical or technological secrets whose disclosure may affect the competitiveness or interests of the Obliged Subjects;
4. Information obtained from third parties as confidential, which disclosure may affect their rights or legitimate interests;
5. Information held by the Financial Intelligence Unit related to the prevention and investigation of transactions involving legalization of assets of illegal origin;
6. Information produced by the Obliged Subjects or third parties with the aim of regulating or supervising financial entities;
7. Information produced by advisors of the Federal Government, which disclosure may reveal the strategy to be used in legal proceedings or may reveal a technical or procedural investigation, or may affect the guarantee of due process;
8. Privileged professional information;
9. Sensitive personal information;
10. Information which may threaten someone’s life or safety;
11. Judicial information which disclosure is prohibited by other statutes or international treaties; and
12. Information obtained in secret investigations.

The Bill states that these exceptions will not be applicable in matters that involve serious violations of human rights, genocide, war crimes, or crimes against humanity.

d.  Information Request

Requests for Information must be filed with the Obliged Subject who holds or is presumed to hold that Information.

Each Obliged Subject must appoint an official in Charge of the Public Information Access, who will carry out the procedures related to Information requests within the relevant entity.

Requests of Information must be granted within 15 business days. This term may be postponed for another 15-day term.

If the request is denied, petitioner may either:

1. Bring a lawsuit before the Federal Courts in Administrative Matters; or
2. File an administrative challenge to be decided by the Public Information Access Agency. If the administrative challenge is rejected, petitioner may subsequently bring a legal action before the Federal Courts in Administrative Matters.

e.  Public Information Access Agency – Federal Transparency Council

The Bill provides the creation of the Public Information Access Agency (the “Agency”), within the jurisdiction of the PEN.

The Agency must, inter alia: (i) draft and adopt the Implementing regulations of Public Information Access applicable to the Obliged Subjects; and (ii) set up a platform for the management of the Information requests and their answers.

The Bill also provides that the Legislative and Judicial Branches and the Public Ministry for the Prosecution and the Public Ministry for the Defense shall set up, within their respective jurisdictions, an authority with powers and purposes equivalent to those of the Agency.

The Bill also provides for the establishment of a Federal Transparency Council.

This Council will be integrated by a representative of each Province and the Autonomous City of Buenos Aires. Its main purpose will be to promote technical cooperation and common policies related to transparency and access to public information.

f.   Effective date

If the Bill is approved, it is provided that it will become effective a year after its publication.

During that term, the current regulations governing access to public information would remain in force and in the meantime the Obliged Subjects should adapt to the new legal framework.

2.  Preliminary Considerations

If the Bill is passed, this will constitute a significant step in order to guarantee the effective exercise of the right to access public information, which the Supreme Court has declared to be a constitutional right.

As it is stated in the whereas of the Bill drafted by the PEN, “the right to access public information is a fundamental tool against corruption, and also for the citizens’ control of public affairs.” Thus, it is expected that the enactment of the Bill will contribute to a better performance by the public authorities.

Moreover, the provisions of the Bill are also applicable to certain private sectors, it will be important to follow the legislative process closely and, if the Bill is approved, its enforcement, to analyze the way in which the pursuit of more transparency in these activities works together with the necessary preservation of confidential aspects of private companies and individuals’ businesses.