The free access of State-held information is a fundamental requirement in achieving open public debate, enabling people to assume an active role in the governing of their country.

The Access of State-held Information as a Human Right

  by Ana Luisa Gomes Lima e Camila Colares Bezerra

1.             Freedom of Expression:

            After being deeply immersed in the political domination of dictatorial regimes, Latin America can gradually retake at the end of the 20th century, the democratic systems of governing and re-establish step by step a series of fundamental guarantees that were previously denied.  Obviously, the process of redemocratization, along with the assorted documents and formal agreements drawn up in each country, still does not cure all of the damage generated by the period of repression. Vestiges of humans rights violations practiced during the dictatorships  persist, even in countries recognized as democracies.

            It is well known that during the period of authoritarian governments,  freedom of expression was practically non-existent. Today, it would be somewhat naive to believe that an absence of public awareness regarding governmental actions during the years of darkness would lead to a prompt and extensive opening up of archives and testimony, and the furnishing of any and all information.  In fact, the exercise of free expression remains elusive for some Latin American countries still immersed in the heritage of past regimes.

            Freedom of expression is essential for the establishment and principally for the maintenance of any democratic regime. In the Inter-American System for the Protection of Human Rights, such rights are recognized and ensured normally by the Charter of the OAS (Articles 33 and 44, “f”), by the American Declaration of the Rights and Duties of Man (Article IV) by the American Convention on Human Rights (Articles 13 and 14) and by the Declaration of Principles on Freedom of Expression.

            What is clear is that, with all  these organizations, and with the jurisprudence of the Inter-American System for the Protection of Human Rights and with the majority of the doctrine being agreed upon,  the rights and freedom of expression have two dimensions. Not only do individuals have an inherent right to disseminate thoughts and opinions, but society has a collective right to receive a variety of information and ideas. For the common citizen, access to unpopular opinion and information put forth from others is important when presenting one’s own ideas.

            Thus, the reach of freedom of expression becomes strengthened with the recognition of personal autonomy in expressing one’s  thoughts.  The Inter-American Court of Human Rights conveyed the same sentiments:

As regarding the components  of the right and freedom of thought and expression, those that are under the protection of the Convention have not only the right and the freedom of expression of one’s own thoughts, but also have the right and freedom to search, receive, and spread information and ideas of all types. It is for this that freedom of expression has an individual and a social dimension.”^[1]

            Only by considering freedom of expression in its broadest sense, can one analyze properly the importance, the reach, and the relation of this guarantee with other rights, as well as interpret possible restrictions in a way most favorable to human rights.

II.        Access to Information as a Right:

            The first activists to campaign on the notion that humans are  guaranteed access to information were the environmentalists, followed by consumer advocate organizations. In this  way, by drawing on specific material, freedom of information was being consolidated, and merged with the right to access State-held information, independent of the interests of the petitioner.

            From then on, the freedom of expression became solidified as a collective attribute, being understood as the “freedom to search, receive and spread ideas in any way possible” (American Convention, Article 13). Indeed, while the access of information figures as a collective aspect of the freedom of expression, such prerogative consequently becomes a right assured by the International Human Rights Law.

            Freedom of information, besides its intrinsic value, becomes an instrument in the  promotion of other human rights, indispensable for true democracy and social development. Furthermore, it suggests replacing secrecy and exclusivity with a demand to share and disseminate information. The question is, however, when must a government provide information and when may access to information be restricted.

            In the move to clarify emerging doubts, one  has to consider the freedom of information under the two points of discussion.  As an individual right, freedom of information functions as a way of increasing personal autonomy, permitting and helping citizens to articulate a lifestyle more suited to their needs.  This exactly is the link which tests the freedom of expression, and makes possible an important connection between the seeker and the universe of circulating data and ideas.

            Clearly the  concept of human rights results in conflicts between personal autonomy and what is best for the individual.  Though it is important for people to have access to certain information, many argue that it is necessary to consider whether freely divulging information is for the social and moral good, and whether it is in the larger public interest to limit the reach of  freedom of information.

            Counteracting the concept of freedom of information as an individual right, is the consideration that the collective tends to have a character of its own. When analyzing this from a social view point, freedom of information fulfils a relevant role in how an institution maintains its control, whether it chooses  to give power to the public, or to heavily exert its influence and dominate the conduct of individuals.

            This sentiment is, according to some authorities, magnified by the concept of freedom of information established by the San Jose Pact and signed by the Inter-American Court of Human Rights:

“[The] freedom of expression is indispensable for the formation of public opinion. It is also  conducted sine qua non by the political parties, the unions, the scientific and cultural societies, and those in general who desire to have influence over the collective to  develop fully. And, finally, the community needs to be in the right condition so that when it comes time to exercise its options, it is sufficiently informed.  Furthermore, one can affirm that a society not well informed is not  fully free. ^[2]

            Because of the need for freedom of information, there is a narrow link between the promotion of fundamental human rights and the establishment of democracy, and of citizen control over the acts of their leaders.

III.       Access of State-held Information:

            Although not all systems of human rights protection support public access of State-held information and  the right and freedom of expression, there exists a vast international consensus that  government is obliged to make available to its citizens the information they seek.

            One understands that without unrestricted access to information by its citizens, the political benefits derived from an effective democracy cannot be fully realized. In fact, for  serious public debate at the heart democracy, the opinion of the population needs to be supported solidly with the truths contained in State-held information.  Free access to State-held  information is a fundamental requirement for an open public debate, which enables people to assume an active role in governing their country.  This feeling was presented in the Inter-American Court on Human Rights, which emphasized that,  “within a democratic society, the concept of public order demands that news, ideas, and opinions be freely circulated, guaranteeing society in its entirety the widest possible access to information.” ^[3]

            It is still necessary to emphasize that the wide conception of rights and freedom, including the right to public access of State-held information, like one of the two pillars of the democratic system, permits individual to demand State-held documentation and information; and also requires the state to divulge its acts and decisions. The control of citizens over  public action requires  not only that the state abstain from censoring  information, but also demands positive action in providing information to its citizens.

            Considering the basic character of a majority, it becomes  necessary to reach a climate where fundamental rights are respected. Access of State-held information is recognized and given wide legal support by the  International Human Rights Law.  Regardless of how presented, the extension of the right to freedom of expression, the right to access State-held information, is based on various international documents on human rights as well as doctrine and jurisprudence.

            At the regional level, for example, access to State-held information presents itself as  strongly focused on conventions and declarations, on the Commission’s understandings as well as Jurisprudence put forth by the Inter-American Court on Human Rights. Conforming explicitly, the rights of access to State-held information is protected by its own Charter of the OAS, by the American Declaration of the Rights and Duties of Man, by Article 13 of the American Convention, and by the Inter-American Declaration of Principles on Freedom of Expression, which in turn, expressly recognizes that “access to State-held information is a fundamental right of individuals.” ^[4]

            At the United Nations, a Special Report on the Freedom of Opinion and Expression submitted to the Human Rights Commission clarified  that access of State-held information authorities is protected by Article 19 of the Universal Declaration of Human Rights and of the  International Pact on Civil and Political Rights, since together they foresee the freedom to “investigate and receive information and opinions”. ^[5]

            It is clear however, that being part of a system that foresees a series of rights many times in conflict, the right to State-held information ought to impose conditions on other public interests, and apply limitations to those interests as reasonably  necessary.  It is necessary to recognize that other legitimate state objectives also exist, and that the State can also be harmed by the indiscriminate publication of all protected information.

IV.       Exceptions to the Rights and Access of State-held Information:

            The system of exceptions imposed on the rights of access to State-held information ought to be clear and straightforward. In fact, it is inevitable that the State occasionally finds itself in situations that oblige it to look for a balance between respecting these rights and protecting legal State-held property, or between protecting personal privacy and maintaining  national security. Such a burden is  not so simple, as state officials must always refer to the international standards of human rights. This sentiment was expressed at the General Assembly of the OAS, recognizing that the objective of constructing a full well-informed society ought to be compatible with the maintenance of other public interests, but also insisting that the States always use principals of access of information in elaborating and implementing internal legislation in national security documents. ^[6]  The  Commission expressed the same idea,  emphasizing that all restrictions of the free flow of information ought not to conflict with the basic aims of Human Rights and the Humanitarian Law. ^[7]

            In practice, exceptions imposed by internal law on the right to access State-held information should meet the guidelines of the international norms and principals of Human Rights.  It is in this context that the American Convention on Human Rights clarifies in its Article 13  the circumstances in which the States can limit public assess of certain information without substantially infringing on its obligation to follow International Law.

            Specifically, the document says that  in order to be  valid and not produce international responsibility for the States, the restrictions ought to be expressly defined in law as representing the condition sine qua non, which respects the rights and reputation of people, and maintain national security, as well as public order, health and morality. Consequently, in the States Parties section of the Convention, those restrictions not stated explicitly in the law or are not found to be fundamental in one of the situations predicted in Article 13, are not accepted by the  Inter-American System for the Protection of Human Rights.

            The  Inter-American Declaration of Principles on Freedom of Expression follows the same line of reasoning, stating that the access of State-held information, “only permits  exceptional limitations that ought to have been previously established in the law in cases where a real and present danger threatens the national security of democratic societies.” ^[8]

            The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, are more specific in dealing with limitations of rights and of access to information and, for this reason, have been used by the Inter-American Commission, as well as by  other international agencies as guidelines in the interpretation and application of the law of Freedom of Expression.

            Considering national security as grounds for restricting public access to information for example, the legal tools available will only be legitimate if the real purpose is to protect a nation’s existence or territorial integrity when it is threatened by outside or internal forces.  Even with such possibility, the Johannesburg Principles declare that legitimate authority, in the name of public security, can restrict access of information under its power and ought to be maintained on behalf of the public interest.  In all other cases, restrictions based on the grounds of maintaining  national security would be considered illegitimate if the true objective were not for the protection of the nation, but rather to cover dishonorable acts or to hide information about malfunctioning public institutions.

            The Johannesburg Principles emphasize that the State in question has the burden to prove their imposed limitation is compatible with the norms of the International Human Rights Law specifically stated within the Article 13 of the American Convention. The Inter-American Commission expressed the same sentiment:

“The law can include limited restrictions on divulging information, based on the same criteria that authorized the application of sanctions in accordance with the Article 13. In these cases, the State has the task of demonstrating that the limitations imposed on the access of information are compatible with the  standards of Freedom of Expression.

            Finally, the Johannesburg Principles also recommend an independent review procedure which certifies that the restrictions imposed are in fact legitimate and reflect the international standards for the protection of Human Rights.

            One may perceive, therefore, that the legitimacy of imposed restriction to the access of State-held information finds itself balanced between the rights that one wants to protect, and the objective to maintain a well-informed society that can exercise fully their role in the democracy. Such burden, however delicate and complex, becomes  vital in bringing to attention the horrors already committed in the name of national security by some public authorities.

V.        Rights to the Truth:

            The right to the truth is presented as fundamental in Article 13 of the American Convention on  Human Rights which has recognized the right to search for and receive information. The right to information and truth component of Article 13 constitutes a recent development in Human Rights documentation, and this right is consolidated in the jurisprudence of international doctrine. Introduced with the results of the combination of Articles 1 (1), 8, 13 and 25 of the Convention, the right to the truth, in part, was not yet “assured” in the Inter-American System.

            Though some  international agencies have resisted protecting human rights by challenging the existence of the right to the truth, the Commission, in its Briefing  25/98 on the Law of Amnesty of Chile, recognized the right to the truth, along with the obligation brought up by some of Article 13 of the American Convention, obliging the Chilean state to respect the Law  – considered irrevocable –  which states that all people in that society should know  the complete truth of those events which occurred, including the motives and specific circumstances of those events, and  most important, the identity of those responsible.

            In the cases in question, the petitioners alleged that the constant application of the Law of Amnesty in Chile cheated victims and their loved ones of their rights which were violated by the dictatorial regime strongly in force during the Pinochet government. According to the Law, all crimes committed between 1973-1978 were pardoned, impeding the investigation and punishment of those responsible. Needless to say, the perpetrators were not charged with their crimes. In the information surrounding the case, the Commission declared that “all of society has inalienable rights to know the truth of what occurred, even the reasons and circumstances in  which perverse crimes were committed, and the right to make sure these crimes do not occur again.”

            In 1999, the year following the Commission’s report as stated above, the Commission dealt with the material in a new way, this time analyzing the situation that had happened in El Salvador when it declared  in a 1992  peace accord, an end to the internal conflict, and established a Truth Commission to finally investigate and report grave violations of human rights unleashed during the conflict. However, one year later, the Salvadoran government approved the amnesty law that nullified  the recommendations of the Truth Commission, making it impossible to investigate and punish the criminals. As a consequence, various violations of human rights remained unpunished, and were denounced by the Inter-American Commission of Human Rights in briefs 01/99 and 136/99. In this last document, the Commission pointed out that “the right to the truth is a right of the collective character that permits society to have access to essential information for the development of democratic systems, and is, at the same time, a special right afforded to the families of the victims, and a right which permits some type of reparations, particularly in the cases where the laws of amnesty are applied.” ^[9]

            In essence, the right to the truth is afforded not only to the victims or their loved ones who look for full clarification of the events that brought about violations, but also to all society which, in turn, must have access to information in a way which makes it viable to the development of serious and well-grounded public opinion.

            Non-governmental organizations which advocate for strict application of the right to the truth as a way of providing a foundation for their cause, claim that it is duty of the State not only to respect Human Rights, but to make viable for the victims and their loved ones, all possible means of investigating the truth, even though this means releasing information under state protection. The State, therefore, is obliged to establish an array of executive and judiciary legislation as a workable means of investigating human rights in a way that a victim, his or her  loved ones, and society all have access to the truth.

            It is known, however, that the right to the truth is systematically compromised, especially when the investigations of crimes involve agents of the State. In the majority of these cases, along with the sluggishness that characterizes judicial power in these countries, one finds historical and political factors become much more complicated when the victim or loved ones try and access the truth.

            Consequently, attempts to investigate, put to trial and punish state agents for grave violations of the human rights committed during past dictatorial regimes have been burdensome, and are becoming more difficult in Latin America.  Those who try and find out what happened may face difficulties, including the discovery that the truth contained in State-held documents – documents not normally classified – have become secrets under the pretext of being related to national security.          

            This practice has made possible the perpetuation of immunity for hundreds of state agents who, under the auspices of the dictatorship, committed barbarous acts including kidnapping, torture, and murder. The most amazing is that many of these agents still occupy high positions in public office and society does not even have an opportunity to know their past contempt for human rights.

            Even though these crimes happened under a different public administration, the concealment of crimes committed by agents of the State is groundless in both internal and external affairs.   In national political affairs, this impunity cultivated by the public institution, has imposed itself above laws mandating the rights of the victim, their loved ones, and the public to know the truth. In the external affairs, such practice puts the international responsibility on the State so that the right to access State-held information  as well as the truth is consolidated in treaties and international conventions even in a different form from those demonstrated above.

            It is necessary, moreover, to remove legal and political obstacles that impede the access to the truth of the events which occurred during the dictatorship as stated in the States Parties of the Convention. Only in this way, will it become possible establish national and individual  responsibilities for the various crimes perpetrated under dictatorial regimes. Above all, it becomes essential to open the public archives relating to this period.

            The reluctance of national governments to turn over certain public archives relative to violations committed during its military regime contradicts democratic principles. It is necessary to understand that the politics of reconciliation and national pacification used frequently by the state authorities as a pretext for maintaining secrecy over these documents will not be successful if based on the concealment of the truth and consequent impunity of those who, indiscriminately, in the name of an ideology,  targeted  even a small section of the population, and committed crimes that simply went over the top of  national security and the dignity of human people.           

V.         Final Consideration:

            As democracy develops in the continent, new denunciations arrive on the national scene and in the Inter-American System for the Protection of Human Rights around the reluctance of some States to allow access to the Truth. In Brazil, the most notorious examples constitute the Guerillas of Araguaia Case, passed on to the  Inter-American System for the Protection of Human Rights.  Still without any decision surrounding the Case’s  merit, its admissibility has already been declared by the  Commission.

            The sentiment to effectively guarantee the right – both individual and collective – of access to information, especially information clarifying events which occurred during dictatorial regime, is a sentiment which increases slowly with time. Without a doubt, the Inter-American System for the Protection of Human Rights  can contribute immensely to the modification of laws and state politics that circumvent  the dictates of Article 13 of the Convention.

            The pronouncements of the Commission are awaited in the hope that they formally denounce the Guerilla of Araguaia Case, a lawsuit based on judicial arguments, many of which were presented as a result of this document.

VII.             Bibliography

            ABRAMOVICH, Victor. COURTIS, Christian. The access to information as a right. Center of Legal and Social Studies (CLSS). Buenos Aires, 2000;

            CJIR Human Rights in the Inter-American System - Collection of Documents. Center for Justice and International Rights (CJIR). Rio de Janeiro Brazil, 2002;

___________. The Protection of the Freedom of Expression and the  System. Center for Justice and International Rights (CJIR). San José, Costa Rica, 2003;

            SABA, Roberto. The right of people to access information in the hands of the government. Compared Right of the Information, number 3, January-June of 2004, pp. 145-185. UNAM, Mexico.