In June 2012, the Colombian Senate approved a Draft Law on Transparency and Right to National Public Information in order to give effect to Articles 20 and 74 of the Constitution guaranteeing the rights of expression and access to information. Virtually unique in comparison with other access to information laws around the world, the Colombian draft law included a provision which substantially narrowed the scope of the law—excluding information related to defense and national security, public order, and international relations. Colombia’s Constitution requires that the Constitutional Court review draft laws, prior to their enactment, where they affect fundamental rights, and permits concerned parties to submit interventions to the Court during the review process. The Open Society Justice Initiative, as well as other organizations, expressed concerns about this provision limiting the scope of the law, and also various other provisions. The Constitutional Court’s, in its review, rejected this provision as unconstitutional.
Colombia’s legislature passed a Draft Law on Transparency and Right to National Public Information, Draft Law 156 of 2011 of the Senate, 228 of 2012 of the Lower House.
As part of a constitutionally mandated review of any draft law related to a fundamental right, various actors, domestic and international, submitted comments to the Constitutional Court to facilitate its review of the law.
The Foundation for the Freedom of the Press (Fundación Para la Libertad de Prensa, or FLIP) filed a submission challenging certain elements of Colombia’s proposed right to information law. The Justice Initiative, with Roxanna Altholz of the Human Rights Clinic at the University of Berkeley School of Law, filed a third-party intervention before the Constitutional Court of Colombia.
The Justice Initiative third-party intervention to the Colombian Constitutional Court addressed the international and comparative law aspects central to the constitutional review of the proposed RTI law.
Maximum disclosure, transparency, and good faith. The Draft ATI Law is in large part consistent with the international requirements for the protection of the public’s right to access information, if interpreted in line with the principles of maximum disclosure, transparency, and good faith. International standards can be utilized to interpret the provisions establishing the public interest test and judicial review or oversight in order that they comply with human rights law. Authoritative guidance from the Court should require such an interpretation.
Necessity and proportionality. The absolute exclusion of information related to defense and national security, public order, and international relations from the scope of the Draft ATI Law is inconsistent with Colombia’s international treaty obligations. Such a limitation on the right of access to information is neither necessary nor proportionate, violates the principle of maximum disclosure, allows for perpetual secrecy, and exempts the withholding of information in these categories from independent oversight.
Supremacy of ATI law. The Draft ATI Law does not include a provision which ensures the supremacy of the Law in the case of a conflict with other statutes. This is inconsistent with best practices internationally and risks that competing laws will undermine access to information.
June 19, 2012. The Colombian Senate approved the Draft Access to Information Law in order to give effect to Articles 20 and 74 of the Constitution guaranteeing the rights of expression and access to information. Prior to its enactment, the draft law must undergo a constitutional review process by the Constitutional Court.
November 1, 2012. The alliance More Information, More Rights (Más información, más derechos) submitted a citizen intervention to the Constitutional Court concerning the Draft ATI Law.
December 3, 2012. The Justice Initiative submitted an amicus curiae brief to the Constitutional Court of Colombia.
May 9, 2013. Preliminary communication from the Constitutional Court of Colombia.
January 21, 2014. Court publishes decision.
In the Constitutional Court’s preliminary communication and final judgment, the Court recognized the role of the right to information in guaranteeing democratic participation, the implementation of political and other rights, and the democratic oversight of public functions and spending.
In line with the foundational principles of the right to information, the Court rejected certain provisions of the proposed right to information law as unconstitutional and unenforceable.
The Constitutional Court rejected as unenforceable the most concerning provision of the proposed law—the provision concerning the law’s scope. The Court found the provision exempting information from broad categories—defense and national security, public order and international relations—without stating specifically the concrete information to be withheld and the reasons for its withholding, to be a violation of the constitutional right to information and international law.
The Constitutional Court also declared as unenforceable various other provisions, among them:
· A phrase (in Art. 22) which permits a public authority to extend the temporal period in which the information may be withheld.
· A phrase in the public interest test (Art. 21) which FLIP had argued would allow for the provision of false or misleading information—the non-existence of a document which actually exists. The language in the provision states that a public authority may not deny the existence of information in its control or refuse to disclose the information except when the damage caused to the protected interest is greater than the public interest in obtaining the information. The Court rejected as unenforceable the final phrase.
· A phrase (in a provision in article 3) which required as a principle “responsibility in the use of information” received by public entities; the Court recognized the provision as largely enforceable with the exception of a phrase (“a la veracidad de la misma”) which required an individual using public information to take into consideration the truth of the information. The Court found that it set a “disproportionate and unreasonable” burden on the information user and the right to information, in violation of the Constitution.