On September 29, 2016, Argentina enacted Law No. 27275 – Law on the Right to Access to Public Information (the “Law”).
The Law aims at guaranteeing the full exercise of the right to access to public information, fostering citizen involvement, and transparency of public administration. For such purposes, the following principles are considered:
- Presumption of publicity of all information held by the government.
- Transparency and full disclosure, this means that all information held by the obligated entities must be available to everybody.
- The rules of procedure must provide for the access to information.
- Full access. Information should be as complete and integrated as possible.
- Opening, considering the electronic media that facilitates the information processing by automatic means.
- Dissociation: documents containing information which is expressly forbidden to be disclosed under this Law must be crossed out.
- No discrimination without cause against individuals who request the information.
- Free of charge.
- Control and permanent monitoring of compliance with the standards established by this Law.
- Liability for violation of this Law.
- Limited exceptions interpreted in a strict sense.
- In dubio pro petitor: In case of doubt the Law will be interpreted in favor of the individual requesting the information.
- Facilitation: no one can refuse to indicate whether a document is in his possession or refuse to disclose it.
- Good faith.
The Law aims at guaranteeing every citizen´s access to public information. The concept of Public Information means all information included in any document in possession of the entities bound by this Law.
A legitimate interest in the information is not a requirement. In this sense, Section 4 of the Law establishes that “any natural or legal person, either public or private, is entitled to request and receive public information, without showing any legitimate interest and without the assistance of a legal counsel.” This means that under this Law any person has the right to freely search, access, request, copy, analyze, reprocess, reutilize, and redistribute the information held by the obligated entities, except otherwise provided by this Law. In addition, the information will be provided as is, without any processing or classification.
Section 7 sets forth the entities bound to provide information under this Law:
- The Argentine Public Administration, including both the central administration and decentralized entities, such as the Argentine tax authorities (AFIP).
- Legislative branch.
- Judicial branch.
- Prosecutor’s Office
- Ministry of Defense
- Judicial Counsel
- Private and public companies, including mixed economy companies and all –majority-state-owned companies.
- Minority-state-companies participation but only with respect to that minor ownership.
- Licensees of public services, licensees of the use of public domain, and contractors, lenders and borrowers.
- Business organizations, political parties, universities, trade unions and any other entity that has received public funds, only in relation to such funds.
- Institutions or funds managed by the Argentine government.
- Public entities not owned by the government with regard to all matters governed by public law.
- Trusts created with public funds either in whole or in part.
- Entities that cooperate with the Argentine Public Administration.
- The Central Bank of Argentina.
- Jurisdictional entities in which the State holds an ownership interest.
- Licensees, administrators and operators of gambling.
The abovementioned entities may only refuse to provide information (i) when it does not exist, (ii) when such entity is not bound to provide the information, or (iii) when the information is included within the exceptions provided for in Section 8 of the Law. The exceptions are the following:
- Information which is reserved, confidential or secret for external defense purposes.
- Information that might be detrimental to the functioning of the banking system.
- Information that may compromise rights of third parties.
- Information held by those in charge of regulating financial institutions.
- Information held by legal advisers of the Argentine Public Administration that may compromise the defense strategies.
- Judicial information whose disclosure is prohibited by other laws.
- Industrial, commercial and financial secrets that may affect competition.
- Information held by the Financial Information Unit.
- Information considered as professionally privileged material.
- Information containing personal data that could not be provided by applying dissociation procedures.
- Information that may be detrimental to a person´s life or safety.
- Information of a corporation (S.A.) under the regime of public offering, except cases of crimes against humanity.
It should be noted that the list of exceptions does NOT include tax secrecy or tax authorities. On the contrary, Section 7 expressly includes the decentralized agencies of the Argentine Public Administration, including the Argentine Tax Authorities (AFIP). AFIP is an autonomous body in charge of carrying out tax and customs policies. This means that this body holds tax information of all taxpayers in Argentina. This Law does not only authorize but also orders to provide information to any person who requests it since tax secrecy is not an impediment. Moreover, this Law seems to contradict the government`s tax amnesty system.
The request for information is submitted to the obligated entity which, then, must refer it to those in charge of the access to public information within 30 days. The request must be answered within 15 working days – it may be extended for 15 days for cause. In the event that the requested information is not in the entity´s possession, the request must be submitted to the entity holding the information within 5 days. The refusal may be appealed before the courts of first instance in administrative federal matters or an administrative claim may be brought before the Office of Access to Public Information (Executive autonomous body created by this Law). It should be noted that all available administrative remedies must be exhausted in either case.
The Office of Access to Public Information created by this Law will be in charge of receiving the requests, urging the obligors to adapt their organization to this Law, providing advice, publishing statistics on their performance, and preparing bills, among other functions.
The entities listed on Section 7 are also bound by this Law to appoint a person in charge of the access to public information process. Finally, the Law also requires said entities, except licensees of public services and operators of gambling, to cooperate with the distribution of their information through their websites.
This assumed democratic law not only seems to forget the constitutional right to privacy, but also imposes administrative, financial and criminal liability on the obligated entities that refuse to provide the requested information. Although this is a big step for the government towards transparency, amendments should be made to prevent certain consequences that seem to have not been considered by lawmakers.