The secretbecause it is a resource to resolve public issues behind closed doors, without registration or control, as in the case of the reserved funds of the SIDE, or of the Decree No. 70/2023whose authorship and preparatory acts are still unknown today, nine months after its formal presentation, despite its very broad scope. Also with regard to the areas of government in contact with actors from the private sector, previously subject to principles of transparency and accountability, now replaced by meetings known only through headlines.
The privatization of public interestbecause it allows governments to confuse the private life of the official and the public interest that weighs on the constitutional functions that he must carry out. It is worth thinking about the multiple President’s foreign tripssome of them on planes whose financing is unknown, to destinations with agendas of which we know very little, always linked to the dissemination of the president’s personal project. Nor was it clear how his accommodation at the Libertador Hotel was financed during the long electoral campaign and the first days of his government.
The DAIP, a democratic consensus
In general we talk about transparency to refer to the processes through which the State guarantees free access to information and makes it available in a complete, clear, timely manner and in open formats that facilitate its reuse. Requests for access to public information are a case of passive transparency, in which the State provides information that is in its possession or is generated, obtained or financed with public funds.
Access to public information is a instrumental lawalso known as right key, Since it allows the exercise of other fundamental constitutional rights, its restriction also entails the degradation of democratic participation, freedom of the press, publicity of government acts and the right to petition authorities. The free exercise of this right has a profound impact on the quality of our democratic life, and even more so on the work of control and involvement carried out by citizens, journalism, academic sectors, civil society organizations, political parties, etc.
In September 2016 the Congress of the Nation sanctioned the Law 27.275 on Access to Public Informationduring the Mauricio Macri’s presidencywith the aim of “guaranteeing the effective exercise of the right of access to public information, promoting citizen participation and transparency in public management”. The law was the result of a long road in which civil society organizations, activists and experts in the field were part of the process and tirelessly insisted on its importance, giving rise to a norm that, although it was not pioneering in the region, turned out to be an advanced text, since it complies with the standards of the Inter-American Model Law on Access to Public Information of the OAS.
What changes?
The decree regulates 7 articles of the Law. Of the modifications introduced, none results in the expansion of the scope of exercise of the right to access public information, but rather imposes more restrictive criteria and alters the spirit of the law, exceeding the regulatory power, so it is expected that it will be subject to unconstitutionality actions.
While the Law refers only to the obligated subjects, the regulation places the applicants under the assumption of abuse of rights provided for in the Article 10 of the Civil and Commercial Codewhich provides for compensation. The measure is reminiscent of the lawsuits for slander and libel once used against journalists in cases of public interest, later decriminalized by Congress during the presidency of Cristina Fernández de Kirchnerafter a long struggle by journalism and civil society organizations.
The new regulation creates a new exception by restricting the definition, excluding “data of a private nature” or “due to the absence of a committed public interest”. The latter case, however, could give rise to doubts in which case the principle of transparency and maximum disclosure should be applied, in line with the recommendations of the Special Rapporteur for Freedom of Expression of the OAS (2012:12): “Any doubt must be resolved in favor of transparency and access,” in line with the jurisprudence of the Inter-American Court of Human Rights in the emblematic case “Claude Reyes and others vs. Chile”, which recognized for the first time the DAIP as an autonomous right and enshrined, among other things, the principle of maximum disclosure, that is, “the presumption that all information is accessible, subject to a restricted system of exceptions.”
It should be remembered that the law provides for the only limitations and exceptionsso we are talking again about excessive regulation. There are already legitimate limits to the DAIP established in the National Constitution. Art. 43. Habeas DataLaw 25326. Protection of Personal Data, Law 17622. Statistical Secrecy, Law 11.683. Tax Procedure, Law 11.723. Intellectual Property, Law 27275. Access to Public Information.
In relation to documents, it establishes a new definition that excludes preparatory deliberations and working papers, a point that clashes with good practices of transparency and governance, provided for example in the implementation of the Electronic Document Management System GDE that the National Public Administration currently uses every day, and which President Milei admitted to ignoring last year during the presidential debate.
Restriction of active legitimacy
The decree establishes new requirements that the applicant must meet, contrary to the broader standard of active legitimacy and informality in favor of the applicant that protects the DAIP.
The new regulations expand the exceptions that the State can use to refuse to provide the requested information. Although the Law clearly states that no more exceptions can be added than those provided for in it, the government adds three more: information that can be used to identify a person’s movements and locations; information whose dissemination could cause damage; and information that is linked to ongoing investigations and that could put people involved in them at risk. The generality of the first two also expands the administration’s discretion to interpret when these cases are met.
It also mentions nNew features for the AIP Agency. This point is new and controversial, since it was not previously regulated. It is noteworthy that “for the purposes of preparing statistics”, the Agency must pay special attention to repetitive requests that constitute an abuse of rights in the exercise of the right.
As with the previous point, this regulation is new and creates functions for those responsible that are not provided for in the law, which only refers to the monitoring and control of the processing of applications. As part of the strategy of introducing abuse of rights, section b) will now empower the authority to interpret the reiterations as a departure from the principle of good faith and thus give notice to the Agency so that take the necessary measureswhich in the absence of further details could imply a possible judicial intervention for abuse of rights against the applicant.
Citizen participation to believe again
Access to public information is a fundamental pillar of modern democracies. Given the progressive nature of constitutional rights protected by the international human rights system, this decree represents an authoritarian affront to citizens, the exercise of their legitimate right to information and freedom of the press, among other constitutional rights, and to democratic institutions such as the National Congress, which sees its legislative work distorted through direct interference by the Executive.
In addition to improving transparency and accountability standards, Access to public information allows civil society organizations to obtain data to promote evidence-based public policies, strengthening normative co-creation processes.
Citizen involvement in public affairs strengthens the transition from a “voting democracy” to a “participatory democracy,” which makes decisions more democratic and gives society control over government actions. From this point of view, the DAIP It is not only a right of citizenship but also a requirement inherent to any democratic society.
In the much-cited work “How Democracies Die,” Levitsky and Ziblatt point out that more and more often “the dismantling of democracy begins gradually,” almost imperceptibly. Citizens believe that the rule of law is maintained as long as elections are held and the press publishes its newspapers, but it happens that democracy can degrade “in tiny steps.” More opaque state encourages secrecyand the secret, corruption and incompatibilities. In a context of a clear crisis of legitimacy of democratic institutions at a regional level, we need, more than ever, to strengthen the mechanisms of citizen participation, transparency and open government. To grow again, we must also believe again.
* Martín Antoniucci is a lawyer, currently studying for a Master’s degree in Public Policy (UNSAM); Florencia Cavalli Durán is a lawyer, specializing in management and control of public policies.
Source: Ambito
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