An anticorruption pressure group in Peru wanted access to the financial declarations of the Minister of Transport, but the authorities said the information was confidential. The Constitutional Court found that details of his public income and movable property should be disclosed in the public interest.
In December 2003, the Lima-based Press and Society Institute (IPYS) requested access to the asset declarations of the minister and deputy minister of the Ministry of Transportation and Telecommunications. IPYS had repeatedly argued that the Peruvian constitution and the 2001 asset declaration law provide for full disclosure of the declarations.
In response to IPYS’s request, the Ministry denied access to the full asset declarations, relying on a June 2001 executive decree which stated that only a brief summary of the declarations should be made public, and that the detailed breakdown of the data provided by the officials should remain confidential.
IPYS challenged this refusal before the courts. In June 2005, the first instance court found in favor of the Ministry, holding that the information was protected because it was personal data. An appeal court confirmed that decision, finding that the executive decree was a proportionate interference with the right to information, aimed at protecting the right to privacy, and was constitutional.
IPYS lodged a constitutional complaint in June 2007 arguing that public officials have less privacy rights than ordinary citizens when it comes to their financial assets, and included information demonstrating that other ministries did provide access to the full asset declarations.
In February 2006, the Constitutional Tribunal had ruled in a different case that withholding the detailed assets declarations was consistent with the protection of the right to privacy. In August 2007, however, a lower Lima court, in a third case brought by IPYS, refused to apply the 2001 decree, holding that publication of the detailed declarations is a reasonable and justified restriction of the officials’ privacy. The Casas Chardon case gave the Constitutional Tribunal an opportunity to reconcile the divergent case law.
The Justice Initiative submitted a "friend of the court" brief to the Constitutional Tribunal arguing that access to the financial records of public officials is a necessary part of open government and forms part of the right to freedom of information protected in human rights law.
Access to financial disclosures by public officials fosters better government. In established democracies and increasingly in Latin America and elsewhere, public disclosure is seen as an essential element in effecting accountability of government officials and enforcement of government ethics laws. While all nations do not presently require filing of financial information by officials, or make such filings fully available to the general public, the best practice and clear trend is toward public disclosure of financial information for both the official and immediate family.
Access to financial disclosures is a widespread practice. The right of access to government information—including access to the financial disclosures of high-level government officials—is well-established in international and comparative law and practice. The right to receive government information is a basic political right, and, like the right to impart information and ideas, an actual prerequisite for the meaningful exercise of other fundamental rights in a modern democracy.
Public interest in financial disclosure generally outweighs privacy interests. Public access to financial disclosure filings by public officials is a justifiable and responsible intrusion into the rights of those officials to maintain the privacy of their financial information. Assuming public office and shouldering public trust require this privacy interest to give way to public accountability. Openness requires that detailed disclosures be made available to the public to ensure proper accountability. Meaningful disclosure requires that information regarding spouses and financial dependents also be made available.
December 2003. IPYS requests the asset declarations.
June 2005. Decision of the first instance court.
June 2007. IPYS lodges the constitutional complaint.
November 2007. Amicus brief filed by the Justice Initiative.
September 2009. Constitutional Tribunal delivers judgment.
The Constitutional Tribunal held that detailed asset declaration information provided by senior officials must be disclosed with respect to the income and other benefits paid by the public sector and also for real estate interests and movable property recorded in a public register. All other detailed data (private sector income; property not recorded; savings, deposits and investments; debts and obligations) should not be disclosed. The law provided that summaries of this data must be provided.
The court noted that the fight against corruption has a constitutional dimension, based on Article 39 (public officials are servants of the nation) and Article 41 (obligation to declare assets, unlawful enrichment is a crime) of the constitution. However, the officials’ income derived from private sources, such as bank account holdings and investments, raise right to privacy issues as well as issues of personal security "given the high levels of organized crime in the country." Given that all detailed asset declarations are made available to the national audit agency and a summary to the public, it is not strictly necessary for all their details to be made fully public.