Court pushes for state transparency

Says government must release information on recipients of social programmes

by Federico Poore
Buenos Aires Herald, 27-03-2014



The Supreme Court yesterday ordered President Cristina Fernández de Kirchner’s administration to publicize information related to its social programmes, following a legal filing made by the Centre for the Implementation of Public Policies for the Equity and Development (CIPPEC), a non-partisan NGO.

The move is yet another take by the highest court on the state’s accountability and responsibility to make information public, and comes after a series of high-impact rulings over the distribution of government advertising in media outlets issued over the last few months.
Specifically, the Supreme Court ordered the national government to reveal the identity of those who benefit from social programmes, where they are located, and the total amount of money they involve.

Near the end of the 48-page ruling the top tribunal said that Congress “urgently needs to pass legislation guaranteeing access to information” and regulating the way public authorities allocate social development programmes.

“The Supreme Court has confirmed that the right to public information is a constitutional right, and that the Legislative Branch is still in debt regarding the implementation of a specific regulation on the matter,” CIPPEC’s chief judicial researcher Martín Bomer told the Herald.

A six-year wait

The case began in 2008, when CIPPEC demanded the Social Development Ministry release the registry of beneficiaries of social programmes for 2006 and 2007, arguing the organization needed to know the identity of those who received the social aid in order to carry out a comprehensive oversight of those programmes.

The ministry refused to provide the requested information by saying that making public such information would collide with the 25,326 Personal Data Protection Law by exposing the “vulnerable condition” of beneficiaries.

But the Supreme Court yesterday said that “the right to maximum disclosure of public information” should prevail over other rights in conflict and that the state was simply choosing to refuse to publicly release the information without a valid argument.

In this context, Justices Ricardo Lorenzetti, Carlos Fayt and Juan Carlos Maqueda said they believed the government is “seeking to exclude certain information from the public domain.” But the harshest words came from Enrique Petracchi and Carmen Argibay, who said that hiding those whom the govenrment was assisting was a “disgraceful” attitude by the government, who was trying to “conceal the diversion of public funds.”

Dismissing official arguments

The Association for Civil Rights (ADC), which co-sponsored CIPPEC’s legal filing, celebrated the ruling’s importance.

“It brings down the repeated argument used to deny access to public information: that the government may refuse to provide such information when it contains ‘sensitive data’,” ADC said in a news release.

ADC’s Access to Information Director Ramiro Álvarez Ugarte said the court’s ruling follows its own jurisprudence regarding the matter that was first expressed in December 2012, while dealing with a case the organization had brought against the PAMI state-run healthcare scheme.

Argentina, Cuba, Haiti and Costa Rica are the only four Latin American countries without a Public Information Access Law, according to Marcela Basterra, a constitutional scholar at the University of Buenos Aires (UBA).

In that context, Justices highlighted that the Supreme Court has “repeatedly pointed out” that the right to public information “is a necessary condition for the organization of a democratic republic” and that the Constitution as well as international treaties with constitutional hierarchy consider such a right “an essential tool in helping public opinion to establish whether social policies carried out by the state are effectively helping (those in need) or if they are dysfunctional to the proposed goals.”

Paraphrasing the Inter-American Commission on Human Rights (IACHR), the top tribunal concluded that information belongs to the people: “It is not owned by the state, and its access is not a result of grace and favour from the government.”

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