The Supreme Court confirmed that the Federal Tax Authority must provide information on the appointment, positions and duties of a public official, as well as on the status of an administrative proceedings conducted against him.
Recently, the Supreme Court of Justice (the “Supreme Court”) confirmed a decision against the Federal Tax Authority (“AFIP”) which required it to supply specific information on one of its public officials (Supreme Court of Justice, “Garrido, Carlos Manuel v. State”, decision dated June 21, 2016).
Member of the National House of Representatives Manuel Garrido filed an injunction against the AFIP in order to obtain information on the appointment, positions and duties performed by Carlos Mechetti within the entity. He sought information on the status of an administrative proceedings which was opened against Mr. Mechetti in 2010 in relation to alleged contraband. The court of first instance partly granted the injunction and ordered the production of some of the information.
The Congress member appealed before the Court of Appeals on Administrative Matters, which held that the AFIP had to supply information on which positions had been held by Mr. Mechetti, the length of time he held them for, how long he had been employed by the AFIP, his labor and professional records within the agency, and the status of the administrative proceedings begun in 2010.
The AFIP filed an extraordinary appeal before the Supreme Court which was granted by the Court of Appeals on Administrative Matters.
Essentially, the AFIP’s opposition was based on (i) the inexistence of a legitimate interest of Mr. Garrido (ii) the claim that the requested information fell within the category of third party sensitive personal data which, according to Section 16 (i) of Annex VII of Decree No. 1172/03, should not be revealed.
In turn, the Supreme Court conducted its own analysis of the case, weighing up the possible infringement of the Data Protection Law No. 25,326 (“DPL”) as well as the requirements of Section 16 (i) of Annex VII of Decree No. 1172/03. Under this provision, “(…) [public agencies] may only be exempted from providing requested information if a law or decree establishes this, or if: (…) (i) the information is on sensitive personal data - under the terms on Law No. 25,326 – and its publicity constitutes a violation of the rights to privacy and honor, unless the data subject provides his or her express consent.”
In the first place, the Supreme Court commented that the matter of the legitimate interest of the assignees of personal data had already been addressed on a prior occasion. It concluded that the legitimate interest of the assignor and assignee to which Section 11 of the DPL refers did exist since access to the information sought was necessary for the correct exercising of the right to control public activity.
Subsequently, the Supreme Court highlighted that the right to access information is not absolute and can be subject to limitations, as long as these are truly exceptional, pursue legitimate objectives and are necessary to achieve the desired result. In these exceptional instances, secrecy can be justified when it is kept to protect the public interest.
Along those lines, the Supreme Court further considered that the information requested by Mr. Garrido – exclusively related to a public official’s administrative career – was of undeniable public interest insofar as it provided knowledge about the people who are in charge of state affairs, and would enable the recipient of the data to exercise a better control of the regularity of the acts which define public administration..
Consequently, the Supreme Court held that the disputed request did not fall within the above mentioned exemptions. It further stated that even if Decree No. 1172/03 were applicable to the public official, since the information requested is not related to sensitive personal data (personal data that reveals racial or ethnic origins, political opinions, religious, philosophical or moral convictions, affiliation to unions, or relates to a person’s health or sexual life), its release in this case does not affect his right to privacy or honor. As a result, there are no reasons for the authorities required to supply the information to refuse to do so.
The Supreme Court reached the same conclusion regarding the information on the administrative proceedings begun in 2010, “(…) since its only objective is to determine the procedural status of an already opened investigation that relates to a public official”, and therefore it cannot be considered an undue disclosure or a violation of the right to due process.
Lastly, the Supreme Court established that although AFIP’s Regulation No. 185/10 – which establishes the disciplinary system applicable to personnel – provides the secrecy of certain parts of an administrative proceedings, the provision of information on the status of the proceedings initiated in 2010 does not undermine its objectives. On the contrary, it allows for a proper social control over the efficiency and diligence with which the competent authorities fulfill their obligations.
In conclusion, the Supreme Court clearly established that those required to provide public information by Decree No. 1172/03 cannot refuse to do so on the grounds of a possible breach to the DPL, as long as the information does constitute sensitive data as defined by law.