By Natalia Torres, CELE Senior Researcher
Articles on freedom of information in Latin America, written by the Center for Studies on Freedom of Expression and Access to Information (CELE) in Argentina, will be a regular feature in FreedomInfo.org. See this article Spanish.
It is difficult to talk about the evolution of the right to know in Latin America without considering the battles for the right to the truth: the right of the families of the disappeared to know what happened to their loved ones and what role the state played, independent of the viability of criminal prosecution.
Within this context is a case that will soon be heard before the Inter-American Court of Human Rights regarding the “Military Logbook,” a document created by a Guatemalan military intelligence and operational unit that contains information on 183 men, women and children who were disappeared by security forces.
The original version of the logbook was given to Kate Doyle, senior analyst of Latin America for the National Security Archive. As an expert on this type of information, she studied and analyzed it thoroughly and concluded that the document was authentic. The document has the structure of an internal registry, containing a daily account of the secret capture and detention of the disappeared.
The logbook includes a brief profile of each victim: name, alias, position, civil status, picture, and date and place of detention. It also contains horrifying data such as the inclusion of the code-number “300” along with a date, an indication of the date of execution of the detained person. According to the National Security Archive’s analysis, a little over half of the 183 people chronicled in the log suffered this fate.
“The death squad diary is a stark example of how far governments will go to hide the truth about human rights atrocities committed by their own security forces,” says Doyle, who disclosed the document in 1999. “For decades, the Guatemalan army stonewalled the search for information by relatives of the disappeared – even truth commission investigators – through silence and denial.
Only after this extraordinary document was smuggled from the army’s internal archives and made public did Guatemalans learn that records about the military’s role in the brutal counterinsurgency did still exist. For the right to truth to function in the hemisphere, States must be legally compelled to open secret files that contain information about human rights abuses committed by their own security agents and provide it fully to investigators and to society.”
After the document’s publication in 1999, the Myrna Mack Foundation – a Guatemalan research institute dedicated to human rights and judicial reform – worked with other NGOs to organize a legal case for presentation within the Inter-American system. Eventually, relatives of 28 of the 183 victims registered in the logbook joined the case as petitioners. “The Mack Foundation presented the case to the Inter-American Commission of Human Rights (IACHR) in 2005,” says Silvia Barreno, in charge of the area of systematization at the Mack Foundation. “Five years later, we are before the Court. We are very happy.”
According to Barreno, the Access to Information Law of Guatemala permitted the Foundation to receive a tremendous amount of information, especially from the Historical Archive of National Police.
The records have served to document the state’s role in the abuses involved in the case. However, access to military archives remains problematic, despite the promises of President Colom: “…the commission created to review and release information from the military archives presented a report to the President one year after its creation, but the number of documents disclosed is much less than was expected. For comparison, the archive of National Police contains 80 million pages of records corresponding to a century of history. But for the period analyzed by the military archives commission –from 1954 to 1996- only 11,000 pages were found, and nothing at all for the period 1980 to 1985,” says Barreno.
The case opens a debate not only about the duty of states to broadly inform the public but also over the obligation to allow access to information regarding violations of human rights.
The society of Guatemala had access to the Military Logbook and the archive of the National Police thanks to a series of random events, not because the records were voluntarily disclosed by the State. In the case of the Military Logbook, it was stolen by an agent of the armyand ended up in the National Security Archive’s possession.
By the same token, in 2005, the archive of the National Police was discovered accidentally after a routine inspection carried out by the Human Rights Prosecutor’s Office of a police base in downtown Guatemala City. During the inspection, millions of pages of historical police records were found, including information from the worst period of the country’s civil conflict, 1975-1985.
Regarding the military archives, the case opens an interesting discussion not only on the duty of the State to provide information about the fate of victims of human rights violations, but also on its obligation to demonstrate the inexistence of information. According to Barreno, the commission created to review and release the archives has claimed that records from the 1980-85 period simply do not exist. In the 2010 Gomes Lund v. Brazil ruling by the Inter-American Court for Human Rights, however, the court found that
“…the power to decide whether or not requested information [concerning human rights abuses] may be released or to establish the existence of the information cannot reside in the same authority accused of violating human rights […]… the right to access to information is not fully satisfied by an answer from the State that the information does not exist. When the State has the duty to record information and preserve it and then nevertheless declares it non-existent, it must demonstrate all of the actions taken to recover or reconstruct the information lost or illegally removed. Otherwise, the right to know is violated.”
According to Barreno, another controversial aspect of the military archives is the use of the exceptions of FOI legislation to withhold information. However, according to article 24 of the FOI act: “In no case can information be classified as confidential or reserved during investigations of human rights violations or crimes against humanity.”
The right to the truth is intrinsically related to access to information. If the right to the truth provided the basis for debate over what should be consider public information, advances on regulating the right to know should help us understand more about the darkest periods of the past in Latin America.
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