What are the limits of the public access to information? Does the mere fact that information relates to national security or international relations prevent public access to it? With more people around the world now able to demand access to government data under freedom of information laws, the courts often decide where these boundaries should be set—especially as governments try to expand their definition of what should be kept secret.
In a recently released decision, Colombia’s highest court ruled that the fact that information relates to national security or international relations is insufficient on its own to prevent public access. A similar question is currently pending in Peru (the Open Society Justice Initiative has filed third-party interventions in both cases, presenting relevant comparative and international law).
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.
So the Colombian Constitutional Court was correct to balk when the national legislature presented for review a draft right to information law which would have excluded from its scope information related to defense and national security, public order and international relations. In its decision (dated May 9, 2013, but released in final form January 21, 2014), the Constitutional Court rejected the provision exempting broad categories of information, without stating specifically the concrete information to be withheld and the reasons for its withholding.
Colombia’s Constitution requires that the country’s 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 Colombian coalition Más información, más derechos – More Information, More Rights – and the Open Society Justice Initiative submitted separate interventions to the Constitutional Court concerning this issue.
A similar challenge is now pending in Peru, which 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 was influenced by historical concerns in Peru related to the excessive invocation of national security to cover up grave abuses.
Despite the limited national security exemption within Peru’s right to information law, Peru’s President, Ollantá Humala, himself a former military officer, issued an executive decree in December 2012 which 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 which might override a secrecy classification.
Peru’s national ombuds office, the Defensoría, submitted a challenge to the executive decree before Peru’s Constitutional Court, and in November, the Open Society Justice Initiative provided an analysis of relevant international and comparative law in support of this constitutional challenge.
The question before Peru’s Constitutional Court is an essential one: can the state continue to hide broad swaths of information from public view? The rapid growth of right to information laws makes the answer to this question clear: not without just cause and meaningful oversight.
Blanket secrecy for information related to security and national defense, or any other category, is inconsistent with the right to information. State secrecy laws long existed to punish disclosure of information detrimental to economic or military affairs using “national security” as a justification. The Inter-American Commission on Human Rights, in its Commentary to the Model Inter-American Law, even singled out Peru specifically for improperly asserting a need for national security secrecy to cover up abuses.
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 said (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.”