Sunshine Week Home Page » Sunshine Week and Sunshine Campaign Toolkit »

Eduardo Bertoni

Published: March 03, 2008
Last Updated: March 03, 2008

By Eduardo Bertoni

Since 2002, countries in Latin America enacted a wave of freedom of information (FOI) laws. Although, there were some existing national laws that attempted to promote greater transparency, it was not until the beginning of this century that a more concerted effort was made throughout the hemisphere to make information available to the public.

These efforts were also propelled by a series of standards established by regional and international organizations, governmental and non-governmental, culminating in the decision of the Inter-American Court of Human Rights in the case Claude Reyes vs. Chile Nevertheless, the impact of these laws has been quite varied, and a complete access to judicial information is not always the rule.

The Due Process of law Foundation (DPLF) developed a report of the legal frameworks for access to judicial information in 10 Latin American countries: Argentina, Chile, Colombia, the Dominican Republic, Ecuador, Honduras, Mexico, Panama, Peru, and Uruguay. These nations were selected based on the variety of national regulations they offer: from countries where such norms are absent, to countries where freedom of information dispositions apply fully to the judicial branch.

A Freedom of Information law is considered as "an act to promote maximum disclosure of information in the public interest, to guarantee the rights of everyone to access information, and to provide for effective mechanisms to secure that right."

Nonetheless, access to information from judicial proceedings may present particular conflicts of rights. For example, the success of criminal investigations may be jeopardized if some information is made public and dissemination of family cases may collide with individuals' right to privacy. In contrast, the aforementioned conflicts are not present, at least not to the same extent, in information related to the administration and management of the judicial system.

However, this difference may not be as clear in a number of Latin American judicial systems, where many management decisions, such as appointments, budgets, and expenditures, are made within the judicial system itself, sometimes by the judges themselves. There are a number of justice officials in the region who disagree with the argument that administrative information should not be subject to the same restrictions as judicial information, and that its disclosure does not jeopardize judicial independence.

Additionally, many of the regulations on transparency enacted before 2002 did not apply to any information from the judicial branch at all, including administrative information, which added to a culture of secrecy that only now is beginning to diminish. For DPLF judicial management or administrative information should not be treated any differently than the same kind of information made public by other state entities.

Recent researches represent important steps towards developing recommendations for improving access to judicial information. Despite the existence of regulations governing access to judicial information, it is important to continue studying how these regulations are actually applied in practice.

Differences between countries with FOI laws and countries without them should be highlighted: while the FOI laws always provided some reference to draw a legal panorama on access to judicial information, the same task in countries lacking such an act had to be done in pieces. The FOI law, even where it does not apply fully to the judicial system, offers a pattern composed of allowed restrictions and principles that make it easier to group the different sets of information.

However, the differences between the countries with FOI laws and those without, by no means ensures that the formers are free of concerns and challenges. For instance, Honduran FOI law offers much fewer guarantees than those established by case law in Argentina, a country with no FOI law at the national level.

Finally, according to DPLF’s research, it is possible to divide the countries into three groups depending on the classification given to judicial information in FOI laws:

Full application of FOI provisions to the judicial branch: this has been the most common model to regulate access to information from the judiciary; it is used in Panama, Honduras, Ecuador, and Peru.

Autonomy of regulation of the judicial system: in Mexico, the judicial system has been tasked by FOI law to develop its own implantation procedures. But the substantive provisions in the FOI law establishing obligations of transparency, information to be published, and restrictions allowed apply fully to information from the judiciary.

Limited application to specific judicial information: FOI laws limit its application to a specific type of information. This is the case in the Dominican Republic, where the FOI law applies fully to information related to administrative matters of the judiciary, but it does not apply to information from judicial proceedings.

Bertoni is Executive Director of the Due Process of Law Foundation, Washington, and former Special Rapporteur for Freedom of Expression of the Organization of American States This article is excerpted from the report, Disclosing Justice. A Study on Access to Judicial In Latin America.