By Rachel Hatcher
Hatcher is a PhD candidate at the University of Saskatchewan. She is now in Guatemala studying post-conflict public memories and discourses of the civil wars in Guatemala and El Salvador.
The Guatemalan Congress is considering stricter controls on the release of information about military and diplomatic matters.
The proposal, first introduced on Feb. 7, would amend the nation’s Free Access to Information Law for the purposes of national security.
The original 2008 Free Access to Information Law, Decreto 57-2008, draws on the Guatemalan Constitution and international human rights laws which Guatemala has signed and establishes the fundamental right of all people to access information held by the State or in the hands of institutions which use State funds. The law guarantees Guatemalans the right to request and access public information and the right to know and protect personal information found in the State archives. The law also ensures maximum transparency and public knowledge about government functions.
Finally, it establishes exceptions to its guarantees regarding the right to access to information. The only exceptions to this right are related to information categorized as either reservada, or secret, or as confidential. As well, Article 24 declares that under no circumstances can information related to human rights violations or crimes against humanity be classified as either secret or confidential.
Secret, Confidential Differentiated
The main difference between these two types of information is that access to secret information is only temporarily restricted, whereas information categorized as confidential has no such time limitations.
As stated in Article 27, information classified as secret will only remain so for a maximum of seven years. It is possible to extend the seven-year period for an additional five years if the reasons the information was made secret still exist. If, however, the initial reasons for classifying the information as secret no longer exist, or if the courts wish, secret information can be made available to the public even before the seven year period expires. Article 26 sets out the rules for determining whether information can be declared secret or confidential. Information can only be confidential or secret if its availability and accessibility is clearly more damaging to the public interest or the interests protected in a specific law than its confidentiality.
Higher Classification Proposed
The reform, which originated in then-President Colom’s office in January 2011, proposes the reclassification of two types of information listed as secret in Article 23 of the 2008 Law—information related to military issues and that involving diplomatic affairs that have been categorized as issues of national security. Should the reform pass, these would be transferred to Article 22, which lists confidential information.
The Executive justified these reforms on the grounds that they would be more in keeping with Article 30 of the Constitution, which deals with exceptions to the issue of making State actions and decisions known to the public. The article declares that all acts must be made known to the public, except those which concern military or diplomatic affairs of national security. The Executive also explained that Article 30 states that this type of information is confidential.
The Executive’s “Statement of Reason” also includes a brief discussion of the March 2009 Agreement to create the Declassification of Military Archives Commission, and the subsequent extension of the Commission’s mandate in January and July 2010. The Commission was charged with organizing the military’s recently discovered documents from 1954 to 1996, during Guatemala’s internal armed conflict. The Commission recommended that 103 documents be classified as confidential, 599 as partially confidential, and 11,641 as open to the public.
Then-President Colom, thus, justified the proposed reform to the Free Access to Information Law based on the Commission’s work and Article 30 of the Constitution. At the time, the reform had the support of the Minister of Defense, the Director of the Legal Department of the Ministry of Defense, the Legal Department of the Army, and the Minister of Foreign Affairs, among others.
Human Rights Groups Object
Human rights organizations in Guatemala reject the proposed reform.
Security in Democracy (SEDEM) and the Guatemalan Human Rights Defenders Protection Unit (UDEFEGUA) declared that the reform represents a step backwards in the advances Decreto 57-2008 made in regards to access to information.
The Pro-Justice Movement, an umbrella organization which includes the Myrna Mack Foundation, Anguished Mothers, and Families and Friends against Crime and Kidnapping (FADS), concured. Recognizing that states need to defend themselves against those who seek to weaken them, the Pro-Justice Movement nevertheless declared that the proposed reform represents a “setback in terms of security and access to information since it is disconnected from the Constitution, is contrary to international human rights law and promotes opacity in matters of national security.”
The Pro-Justice Movement cites the Guatemalan Constitution to support their rejection of the reform. Notably, they argue that Article 30 of the Guatemalan Constitution, on which the Executive’s move to reform the 2008 law is based, does not refer to military or diplomatic affairs as confidential but only asserts that these issues do not have to be made public. The Executive’s use of Article 30 as justification for the reform, therefore, is “imprecise” and the reform itself “unfair.”
They also refer to decisions of the Inter-American Human Rights Court, the Inter-American Human Rights Commission, the American Convention on Human Rights, and declarations of the UN and the OAS, among others, to support their position, arguing, as a result, that the reform violates international human rights laws and standards. The Pro-Justice Movement recognizes that the right to access to information is not absolute, but that the reform does not meet the requirements international law demands be met. Citing the Inter-American Court’s ruling in Claude Reyes and others v. Chile, the Principles of Johannesburg, the Principles of Lima, and others, the proposed reform to Decreto 57-2008 does not meet the requirements in terms of legality, legitimate ends, proportionality or time limit.
Court Ruling Cited
Rejections of the reform also highlight human rights. In the Inter-American Court’s ruling in Myrna Mack Change v. Guatemala, handed down in 2003, the Court echoed the Inter-American Commissions statement and ruled that
[i]n the framework of a criminal proceeding, especially when it involves the investigation and prosecution of illegal actions attributable to the security forces of the State, there is a possible conflict of interests between the need to protect official secret, on the one hand, and the obligations of the State to protect individual persons from the illegal acts committed by their public agents and to investigate, try, and punish those responsible for said acts, on the other hand.
[…P]ublic authorities cannot shield themselves behind the protective cloak of official secret to avoid or obstruct the investigation of illegal acts ascribed to the members of its own bodies. In cases of human rights violations, when the judicial bodies are attempting to elucidate the facts and to try and to punish those responsible for said violations, resorting to official secret with respect to submission of the information required by the judiciary may be considered an attempt to privilege the “clandestinity of the Executive branch” and to perpetuate impunity…. (http://www.corteidh.or.cr/docs/casos/articulos/seriec_101_ing.pdf )
As a result of this line of argument, the Inter-American Court ruled that the Minister of Defense’s refusal to hand over certain documents in the investigation into Myrna Mack’s assassination because they were state secrets constituted an obstruction of justice. This argument resonates in the original 2008 Law’s Article 24, which excludes information human rights violations from being declared either secret or confidential, and is also justification for Guatemalan civil society organizations to reject the proposed reform.
The Pro-Justice Movement also criticizes the reform for its potential to be used by political interests who do not only have national security in mind. Indeed, the Movement suggests that the reform may actually threaten the national security it was meant to protect by reducing transparency, preventing a critical and careful reading of government policies that deal with national security, and creating obstacles to the flow of pertinent information between state institutions.
Thus, for human rights groups, the proposed reform to the Guatemala’s Free Access to Information Law represents a challenge to the spirit of the original law and a threat to the gains made in terms of freedom of information in the past years.
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