Intellectual Property

The access to public information and personal data protection according to a recent ruling of the Argentine CSJN

On June 21, 2016, the Argentine Republic Supreme Court of Justice (“CSJN”) issued a ruling regarding the protection of personal data when an argentine citizen attempted to exercise his right to access public information.

The ruling was issued in “Garrido, Carlos Manuel c/ EN – AFIP s/ amparo ley 16,986”. In this case, the plaintiff, an argentine citizen and congressman, requested to the national tax agency, the Administración Federal de Ingresos Públicos (“AFIP”), certain information regarding the employment relationship of an employee of that agency and, in particular, about an administrative proceeding initiated against that civil servant. 

AFIP refused to provide the information as it represented sensitive personal data of the employee as well it included information about a proceeding that could be endanger, both exceptions to decline a public information request set forth in Decree No. 1172/2003, which regulates the right to access public information of the Federal Government, and also due to the fact that the plaintiff lacked a right to request the information. Given the situation, the plaintiff filed a complaint with the courts, which was admitted and it was ordered that the information was provided. As a consequence, AFIP appealed the judgment but the appeal was rejected. After that, they filed a motion before the CSJN to hear the case and which resulted in the ruling under analysis. The CSJN review the 3 arguments given by AFIP and resolved to uphold the ruling and obliged the provision of the information requested.

Regarding the first defence, the CSJN, following the criteria established in the case “Cippec”, considered that in order to access public information it is not necessary a qualified interest and its sufficient with being a member of the community given that the public information belongs to the argentine people. In this regard, the CSJN did not determine whether it was necessary to prove the condition of argentine citizen, or at least of argentine resident, in order to admit the request of information; in other words, it was not said if a foreigner could request public information in the Argentine Republic.

In respect with the defence that the public information requested was sensitive personal data, the CSJN considered that in the case there was no sensitive personal data involved that could allow AFIP the rejection of the information requested under decree No. 1172/2003. This was due to the fact that the information only was related to the employment record of the civil servant involved and that the data requested did not fall under any category that could be considered as sensitive personal data under Law No. 25,326 nor there was damage to the employee’s privacy.

Finally, and regarding the third defence, the CSJN considered that the information requested on the status of the administrative proceeding against the employee did not imply in any form the revelation of the strategy to be adopted on a trail or the release of techniques or proceedings of investigation or damage to the due process. 

For further information on this topic please contact Pablo A. Palazzi