-4487.
Democratic control by society, through public opinion, fosters transparency in
State activities and promotes the accountability of State officials in relation to their public
activities.89 Hence, for the individual to be able to exercise democratic control, the State
must guarantee access to the information of public interest that it holds. By permitting
the exercise of this democratic control, the State encourages greater participation by the
individual in the interests of society.
B)
The restrictions to the exercise of the right of access to State-held information
imposed in this case
88.
The right of access to State-held information admits restrictions. This Court has
already ruled in other cases on the restrictions that may be imposed on the exercise of
freedom of thought and expression.90
89.
In relation to the requirements with which a restriction in this regard should
comply, first, they must have been established by law to ensure that they are not at the
discretion of public authorities. Such laws should be enacted “for reasons of general
interest and in accordance with the purpose for which such restrictions have been
established.” In this respect, the Court has emphasized that:
From that perspective, one cannot interpret the word "laws," used in Article 30, as a synonym for
just any legal norm, since that would be tantamount to admitting that fundamental rights can be
restricted at the sole discretion of governmental authorities with no other formal limitation than
that such restrictions be set out in provisions of a general nature.
[…]
The requirement that the laws be enacted for reasons of general interest means they must have
been adopted for the "general welfare" (Art. 32(2)), a concept that must be interpreted as an
integral element of public order (ordre public) in democratic States […].91
90.
Second, the restriction established by law should respond to a purpose allowed by
the American Convention. In this respect, Article 13(2) of the Convention permits
imposing the restrictions necessary to ensure “respect for the rights or reputations of
others” or “the protection of national security, public order, or public health or morals.”
91.
Lastly, the restrictions imposed must be necessary in a democratic society;
consequently, they must be intended to satisfy a compelling public interest. If there are
various options to achieve this objective, that which least restricts the right protected
must be selected. In other words, the restriction must be proportionate to the interest
that justifies it and must be appropriate for accomplishing this legitimate purpose,
interfering as little as possible with the effective exercise of the right.92
89
Cf. . Case of Palamara Iribarne, supra note 72, para. 83; . Case of Ricardo Canese, supra note 72,
para. 97; and . Case of Herrera Ulloa, supra note 72, para. 127. Likewise, cf. Feldek v. Slovakia, no. 29032/95,
§ 83, ECHR 2001-VIII; and Surek and Ozdemir v. Turkey, nos. 23927/94 and 24277/94, § 60, ECHR Judgment
of 8 July, 1999.
90
Cf. Case of López Álvarez, supra note 72, para. 165; . Case of Palamara Iribarne, supra note 72, para.
85; . Case of Ricardo Canese, supra note 72, para. 95; and . Case of Herrera Ulloa, supra note 72, paras. 120123.
91
92
Cf. Advisory Opinion. OC-6/86, supra note 86, paras. 26-29.
Cf. Case of Palamara Iribarne, supra note 72, para. 85; . Case of Ricardo Canese, supra note 72, para.
96; . Case of Herrera Ulloa, supra note 72, paras. 121 and 123; and Advisory Opinion OC-5/85, supra note 72,
para. 46.