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OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESION INTERAMERICAN COMMISSION ON HUMAN RIGHTS ORGANIZATION OF AMERICAN STATES REPORT 2009 clear and explicit obligations exist regarding the production of information related to the exercise of the rights of sectors that are excluded or historically discriminated against 15 . 24. The fourth State obligation in this matter, is that of bringing its domestic laws into conformity with international standards in terms of access to information, by (i) removing legal or administrative obstacles that impede access to information; (ii) promoting the right of access within all of the State’s entities and authorities, through the adoption and enforcement of rules and procedures and through the training of public officials on the custody, administration, filing and provision of information; and (iii) in general terms, adopting public policy that is favorable to the full exercise of this right. Indeed, as the Inter-American Court has explained, States must have an adequate legal framework for the protection of the right of access to information, and must guarantee the effectiveness of an adequate administrative procedure for the processing and adjudication of requests for information, with clear timelines for the issuance of decisions and the release of information under the control of public officials duly trained on the subject. 16 25. Fifth, the State is bound by the obligation to disseminate among the public in general the existence and methods of exercising the right of access to information. In this respect, the Inter-American Juridical Committee affirmed in its Resolution on “Principles on the Right of Access to Information” that “[m]easures should be taken to promote, to implement and to enforce the right to access to information, including creating and maintaining public archives in a serious and professional manner, training public officials, implementing public awareness-raising programs, improving systems of information management, and reporting by public bodies on the measures they have taken to implement the right of access, including in relation to their processing of requests for information.” 17 26. Finally, the State has the duty to adequately preserve the information to which individuals have the right of access, through an appropriate file management system. The UN, OAS and OSCE Special Rapporteurs on Freedom of Expression addressed this point in their Joint Declaration of 2004, in which they asserted that “[p]ublic authorities should be required to meet minimum record management standards”, and that “[s]ystems should be put in place to promote higher standards over time.” 7. Limitations to the right of access to information 27. Admissibility and conditions of the limitations. As an element of freedom of expression protected by the American Convention, the right of access to information is not an absolute right. It may be subject to limitations that remove certain types of information from public access. Nevertheless, such limitations must be in strict accordance with the requirements derived from article 13-2 of the Convention—that is, the conditions of exceptional nature, legal establishment, legitimate objectives, and necessity and proportionality. In this precise sense, Principle 4 of the IACHR Statement of Principles on Freedom of Expression states that “[a]ccess to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that 15 The Inter-American Convention in the Prevention, Punishment, and Eradication of Violence Against Women (Belém do Pará) establishes the State’s obligation “to ensure research and the gathering of statistics and other relevant information relating to the causes, consequences and frequency of violence against women, in order to assess the effectiveness of measures to prevent, punish and eradicate violence against women and to formulate and implement the necessary changes”, article 8. h). This provision deals with an obligation to produce clear information that is enforceable as a right. Para. 163. 16 I/A Court H.R., Case of Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Series C No. 151. 17 Inter-American Juridical Committee. Resolution 147, of the 73 rd Ordinary Period of Sessions: Principles on the Right of Access to Information. August 7, 2008. Principle. 10
OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESION INTERAMERICAN COMMISSION ON HUMAN RIGHTS ORGANIZATION OF AMERICAN STATES REPORT 2009 threatens national security in democratic societies.” Furthermore, according to the case law of the inter-American system, simple, effective, expeditious and non-onerous judicial and administrative recourse must be provided for purposes of contesting the decisions of authorities that deny access to information in specific cases. 18 28. It is incumbent upon the state to demonstrate, when it restricts access to information under its control, that it has complied with the requirements set forth in the Convention. The Inter-American Juridical Committee addressed this point in its Resolution on the “Principles on the Right of Access to Information”, stating that “[t]he burden of proof in justifying any denial of access to information lies with the body from which the information was requested.” The Inter-American Court has held that the establishment of restrictions to the right of access to information held by the State through the practice of the authorities and without meeting the requirements of the American Convention, (a) creates fertile ground for the discretionary and arbitrary action of the State in the classification of information as secret, reserved or confidential; (b) gives rise to legal uncertainty with respect to the exercise of such right; and (c) gives rise to legal uncertainty as to the scope of the State’s powers to restrict the right. 19 29. Exceptional nature of the limitations. Bearing in mind the principle of maximum disclosure, the law must guarantee the effective and broadest possible access to public information, and any exceptions must not become the general rule in practice. 30. Legal establishment of the exceptions. First, limitations to the right to seek, receive and impart information must be established by law expressly and in advance, to ensure that they are not set at the government’s discretion. Their establishment must be sufficiently clear and specific so as to not grant an excessive degree of discretion to the public officials who decide whether or not to disclose the information. 20 In the opinion of the Inter-American Court, such laws must have been enacted “for reasons of general interest” in accordance with the common good as an element of public order in a democratic State. The definition of the Inter-American Court in Advisory Opinion 6/86 is applicable in this respect, according to which the term “laws” does not just refer to any legal norm, but rather to general normative acts that are enacted by the democratically elected legislative body provided for in the constitution, according to the procedures established in the constitution, and tied to the general welfare. 21 Also relevant here is Principle 6 of the Resolution of the Inter-American Juridical Committee regarding the “Principles on the Right of Access to Information”, which states that “[e]xceptions to the right to access should be established by law, be clear and narrow.” 31. Legitimate purpose under the American Convention. The laws that set limitations on the right of access to information under the State’s control must correspond expressly to an objective that is permissible under article 13.2 of the American Convention, that is: to ensure respect for the rights or reputations of others, to protect national security, public order, or public health or morals. 22 Para. 137. Para. 98. 18 I/A Court H.R., Case of Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Series C No. 151. 19 I/A Court H.R., Case of Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Series C No. 151. 20 IACHR, Arguments before the Inter-American Court of Human Rights in the Case of Claude Reyes et al. v. Chile, cited in the Judgment of September 19, 2006, Series C No. 151. Para. 58.f). Para. 89. Para. 90. 21 I/A Court H.R., Case of Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Series C No. 151. 22 I/A Court H.R., Case of Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Series C No. 151.
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