Freedom of Information Law in Latin America

On March 18-19, 2004, the Open Society Justice Initiative brought together lawyers and activists from across the Americas to develop litigation and advocacy strategies, and strengthen intra-regional networks for promoting freedom of information and expression. The meeting resulted in some common approaches to (i) freedom of information advocacy strategies, (ii) FOI litigation strategies, and (iii) priority areas for litigation in the area of freedom of expression.

1. Freedom of Information Advocacy Strategies

Many countries in Latin America and the Caribbean have yet to follow the lead of Mexico, Peru, Panama, and Jamaica—four countries which have adopted and implemented freedom of information laws. Participants discussed starting points for advocacy strategies:

• Freedom of information as an anticorruption measure
• Building public trust
• Access to truth
• Media, Civil Society and Business as allies

2. Freedom of Information Litigation Strategies

Civil society groups use a variety of methods to promote freedom of information laws—these include advocating reform, raising public awareness, and providing technical assistance and training to government officials and civil society groups. Litigation is another available, and sometimes necessary, tool to enforce the right.

Although the Inter-American Court has not yet recognized a general right to access government-held information, it has relied on Article 13 of the American Convention on Human Rights to support the fundamental importance of freedom of information in a democratic society. The Court has also explicitly recognized a right to information when this is related to the exercise of other Convention rights. Thus, in the Barrios Altos case, the Court argued that a state's obligation to investigate and punish serious human rights violations included an obligation to shed light on the truth. This obligation corresponded to the victims and their families' "right to truth." It is important to build on the existing jurisprudence in order to expand the scope of the Convention right to information, with a view to obtaining recognition of a general right to access government information.

In countries with freedom of information legislation in place, litigation is a possible strategy in a range of situations:

• Systematic failure by government institutions to comply with the law. Experience from Peru has shown that initiating a lawsuit can lead to rapid release of information and may even encourage requests from government departments for technical assistance in implementing the law.
• Misapplication or restrictive application of the law, including through overbroad interpretation of exemptions, and/or secondary regulations on issues ranging from state secrets to costs for receiving information.
• Discriminatory application of the law and discriminatory provision of information.
• Certain flaws in the law; for example, ambiguities regarding the range of government and parastatal institutions covered by the law, or the lack of a "harm" or "public interest test" for evaluating exemptions. In countries where the right of access to information enjoys constitutional recognition, litigation to address flawed legislation can be brought to the highest level.

In countries lacking freedom of information legislation, litigation should aim at specific results:

• To employ relevant existing constitutional or administrative provisions to entrench any ad hoc access to information mechanisms that already exist.
• To promote the right of access to information through cases chosen to underscore the need for an appropriate and functioning freedom of information regime.

At the Inter-American Court level, cases should be carefully selected both for their chances of success and for their potential to yield beneficial jurisprudence supporting the fundamental right of access to government-held information:

• Where victims have suffered clear harm as a result of the denial of information, cases are more likely to succeed.
• Cases which touch upon other basic rights, such as health or environmental protection or human rights violations, may prove more compelling for the Court (a similar approach proved successful before the European Court of Human Rights).
• Information access should ideally be the central issue at stake, in order to establish access to information as a fundamental right.
• Cases from countries which have freedom of information legislation might be preferred, as the steps needed to fulfill the procedural requirement of "exhaustion of domestic remedies" are more evident. Furthermore, the existence of a freedom of information law provides a basis for arguing that the state has recognized the right of access to information.
• Where countries lack freedom of information legislation, cases at the Inter-American level can exert pressure for their adoption.

Many national governments and judicial systems are resistant to international jurisprudence, but participants at the Buenos Aires meeting did not view this as an obstacle, citing cases where reform had occurred despite professed rejection of international oversight. A recent example is the Inter-American Court's decision against Chile in "The Last Temptation of Christ" case in which a challenge was brought to Chile's film censorship laws. The court's ruling forced Chile to change the relevant constitutional and statutory provisions, replacing the prior censorship regime with a movie rating system.

Tactical considerations

Participants discussed tactical approaches to selecting cases at the national level, and identified the following considerations:

• All litigation, both national and international, should be compelling enough to generate widespread public support and provide advocacy platforms for law reform.
• Not all cases of interest to freedom of information professionals will attract public support. Challenges to arcane national security exemptions, for example, may have little advocacy value.
• Politically controversial cases are not always ideal for establishing clear precedents, particularly in national courts. Carefully chosen cases on obvious, if mundane, issues might be preferable. Some more cutting-edge cases might, however, be selected to challenge the perception that certain secretive institutions (like the army or the police) are immune to legitimate demands for information.

3. Priority Issues for Freedom of Expression Litigation

The meeting devoted a morning session to the discussion of key threats to freedom of expression in the region that can be addressed through strategic litigation and accompanying research and advocacy. Participants noted that litigation as a means of furthering free expression continues to be underused both at the domestic and Inter-American level. The debate identified a number of cross-cutting priorities:

• Promoting decriminalization of defamation and insult laws and the application of the "actual malice" principle for civil defamation laws.
• Challenging concentration of media ownership and promoting transparency of ownership structures.
• Challenging abusive and discriminatory allocations of government advertising.
• Defending journalists and others against forced disclosure of confidential sources.
• In the broadcasting area, participants identified the need to promote: independent and transparent regulatory authorities; fair access to and conditions for using frequencies; and reform of state-owned broadcasters, particularly aiming at fairer, unbiased broadcasting.