After several years during which different sectors called for a law on access to public information, on September 14, Congress passed a law regulating this matter, which was published in the Official Gazette on September 29, 2016, as Law No. 27,275.
Until now, access to public information was only regulated within the scope of the Executive Branch (the "PEN"), by Annex VII of Decree No. 1172/2003. The Supreme Court, in different precedents, had called on Congress to address this issue. Please see Marval News # 138, # 144 and # 156.
Against this backdrop, on April 8, 2016, the PEN submitted a bill that was approved, with some amendments, by the House of Deputies on May 18, 2016.
On September 7, 2016, the Senate approved the bill, introducing some modifications to its text. However, the House of Deputies rejected those changes and insisted on the text that was approved last May 18, 2016.
As a result, the text approved by the House of Deputies has been passed by Congress and now the Executive Branch may promulgate it as the new Law on Access to Public Information (the "LAPI").
1. Main Provisions of the LAPI
The main provisions of the LAPI are the following:
a. Right of Access to Public Information
The LAPI states that the right to access public information comprises the possibility of freely searching, accessing, requiring, receiving, copying, analyzing, processing, reusing and redistributing the information held by the Obliged Subjects (as defined below), which is restricted only by the limits and exceptions provided for in the LAPI
Any kind of data contained in any document, whatever its format might be, which is created, obtained, transformed, controlled or held by the Obliged Subjects (the "Information") is presumed to be public.
The Bill provides that any person or legal entity, either public or private, has the right to request and receive the Information. It is not necessary to allege any subjective right or legitimate interest; nor is legal counsel required.
b. Obliged Subjects
The following subjects are obliged to provide the Information (the "Obliged Subjects"):
- The Federal Administration (both centralized and decentralized agencies);
- The Legislative Branch;
- The Judicial Branch;
- The Public Ministry for the Prosecution;
- The Public Ministry for the Defense;
- The Council of the Judiciary;
- State-controlled corporations and companies (which includes any business organization where the Federal Government owns a majority shareholding or holds the majority decision-making power);
- Corporations and companies in which the Federal Government or its agencies hold a minority shareholding, only with regard to that shareholding.
- Holders of concessions, licenses and permits over public utilities and public property; as well as Federal Government's contractors and suppliers.
- Any private entity which receives public funds from the Federal Government (only regarding Information produced with or related to the use of the public funds received);
- Any institution or entity whose administration, custody or conservation is managed by the Federal Government.
- Non-Governmental public legal entities (only regarding public law matters and information related to the received public funds);
- Trusts comprised totally or partially by assets owned by the Federal Government;
- Entities that have executed agreements with the Federal Government on the field of technical or financial cooperation;
- The Central Bank;
- Inter-jurisdictional entities where the Federal Government participates or is represented;
- Concessionaires, exploiters, managers and operators of gambling and betting establishments.
The LAPI also states that infringement of the law is considered as a cause of malfeasance.
c. Exceptions
The Obliged Subjects may only refrain from providing the Information in any of the following cases:
- Expressly classified information, deemed as reserved, confidential or secret for reasons of foreign policy or public defense;
- Information which disclosure may affect the functioning of the financial or banking system;
- Industrial, commercial, financial, scientific, technical or technological secrets whose disclosure may affect the competitiveness or interests of the Obliged Subjects;
- Information obtained from third parties as confidential, which disclosure may affect their disclose rights or legitimate interests;
- Information held by the Financial Intelligence Unit related to the prevention and investigation of transactions involving legalization of assets of illegal origin;
- Information produced by the Obliged Subjects or third parties with the aim of regulating or supervising financial entities;
- Information produced by advisors of the Federal Government, whose disclosure may reveal the strategy to be used in legal proceedings or may reveal a technical or procedural investigation, or may affect the guarantee of due process;
- Privileged professional information;
- Sensitive personal information;
- Information which may threaten someone's life or safety;
- Judicial information whose disclosure is prohibited by other statutes or international treaties;
- Information obtained in secret investigations;
- Information related to Corporations subject to the public offering regime.
These exceptions will not be applicable in matters that involve serious violations of human rights, genocide, war crimes, or crimes against humanity.
d. Information Request
Requests for Information must be filed with the Obliged Subject who holds or is presumed to hold that Information.
Each Obliged Subject must appoint an official in Charge of Public Information Access, who will carry out the procedures related to Information requests within the relevant entity.
Requests of Information must be granted within 15 business days. This term may be postponed for another 15-day term.
If the request is denied, the petitioner may either:
- Bring a lawsuit before the Federal Courts in Administrative Matters; or
- File an administrative challenge to be decided by the Public Information Access Agency, or the respective body of the Congress or of the Judiciary, respectively. If the administrative challenge is rejected, petitioner may subsequently bring a legal action before the Federal Courts in Administrative Matters.
e. Public Information Access Agency – Federal Transparency Council
The LAPI provides for the creation of the Public Information Access Agency (the "Agency"), within the jurisdiction of the PEN.
The Agency must, inter alia: (i) draft and adopt the Implementing regulations of Public Information Access applicable to the Obliged Subjects; and (ii) set up a technological platform for the management of the Information requests and their answers.
It is also provided that the Legislative and Judicial Branches, the Council of the Judiciary, the Public Ministry for the Prosecution and the Public Ministry for the Defense shall institute, within their respective jurisdictions, an authority with powers and purposes equivalent to those of the Agency.
The LAPI also provides for the establishment of a Federal Transparency Council.
This Council will be integrated by a representative of each Province and the Autonomous City of Buenos Aires. Its main purpose will be the technical cooperation and consolidation of policies related to transparency and access to public information.
f. Effective date
The LAPI will become effective a year after its publication. During that term, the current framework provided by Annex VII of Decree No. 1172/2003, will still be effective and the Obliged Subjects will have to adapt to the new framework.
2. Preliminary Considerations
With the enactment of the LAPI, Argentina has taken a very important step towards guaranteeing the effective exercise of the right to access public information, which the Supreme Court has declared to be a constitutional right.
As provided for by the Whereas of the Bill drafted by the PEN, "the right to access public information is a fundamental tool against corruption, and also for citizens' control of public affairs." Thus, it can be expected that the enactment of the LAPI will contribute towards a better performance of the public authorities.
On the other hand, given that the provisions of the LAPI are also applicable to certain private sectors, it will be important to follow up its application to analyze the way in which it reconciles the pursuit of more transparency and the necessary preservation of confidential aspects of private companies and individuals' businesses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
