Executive Decree 1129

Challenging Blanket Secrecy

Facts

Peru was one of the first Latin American countries to pass a right to information law, in 2002. It was enacted following the disclosure of abuses of power and corrupt dealings during the decade-long rule of Alberto Fujimori. Peru’s right to information law includes, as all or virtually all such laws around the world do, an exemption for information legitimately withheld on national security grounds.

The law also includes, within the same provision as the national security exemption, a prohibition of the classification of information related to human rights violations. The strict national security exemption, and especially the human rights exception, was influenced by historical concerns in Peru related to the excessive invocation of national security to cover up grave abuses.

Despite the human rights exception to national security secrecy, Peru’s President, Ollantá Humala, himself a former military officer, issued an executive decree in December 2012 that includes a sweeping secrecy provision in the areas of security and national defense, stating that “all information or documentation” related to security and national defense “is by its nature secret.”

This provision would exclude broad categories of information from public scrutiny without requiring any case-by-case justification by the public authority for withholding the information, or a demonstration that the disclosure of the information would harm national security in some way. Further, it does not set a time limit on this exclusion, or any consideration of public interests that might override a secrecy classification.

In 2013, Peru’s national ombuds office, the Defensoría del Pueblo, submitted a challenge to the executive decree before Peru’s Constitutional Court.

The question before Peru’s Constitutional Court is an essential one: can the state continue to hide broad swaths of information from public view?

Open Society Justice Initiative Involvement

In November 2013, the Open Society Justice Initiative provided an analysis of relevant international and comparative law in support of this constitutional challenge.

Arguments

The right of access to information is well-established in international law. As of May 2012, when Brazil’s law entered into force, more than 5.5 billion people worldwide live in countries that provide in their domestic law for an enforceable right to obtain information from their governments.  There is broad consensus that the right to information includes, at its core, the principle of maximum disclosure. Any restrictions on the right must be limited and subjected to effective oversight.

Blanket secrecy is anathema to any right to information regime. This includes information related to security and national defense, or any other category. State secrecy laws long existed to punish disclosure of information detrimental to economic or military affairs using “national security” as a justification. The official Commentary to the Model Inter-American Law specifically singled out Peru for improperly asserting a need for national security secrecy to cover up  “discretionary actions and maladministration taken by the government.”

Decree 1129’s blanket secrecy is inconsistent with Peru’s international law obligations. Such a limitation on the right of access to information (1) is neither necessary nor proportionate, (2) violates the principle of maximum disclosure, (3) allows for perpetual secrecy, and (4) exempts the withholding of information in these categories from independent oversight.

Decree 1129 is inconsistent with Peru’s existing right to information framework. This properly requires limited (rather than absolute) exclusions from the State’s disclosure obligations, each restriction with particularized justifications; and requires the disclosure of information concerning human rights violations and crimes of international law.

Excessive national security secrecy is irreconcilable with democratic oversight. Moreover, while national security may justify legitimate restrictions on the public’s right to access information when certain conditions are met, the public’s knowledge of state activities, including in the security sector, is often protective of legitimate national security interests. It promotes accountability to avoid human rights violations, corruption, waste and abuses. As the Constitutional Court of Colombia has stated (Judgment c-491/07): “Decisions or actions of public servants that they do not want exposed are usually ones that cannot be justified. And the secret and unjustifiable use of State power is repulsive to the rule of law and appropriate functioning of a democratic society.”