The legal reserve is based on information that endangers fundamental rights or constitutional interests, but not on the entire public process in which it is inserted. This has been established by the Supervision of Surveillance and Private Security when it concerns the classification and management of the information it receives and produces, as well as the origin of the provision of information by companies under its supervision and control. “ARTICLE 19 INFORMATION OTHER THAN HARM TO THE PUBLIC INTEREST.
Let`s start by clarifying what the legal reserve is and what documents or information have or can have the character of a reservation. As a general rule, in Colombia, in accordance with article 74 of the Constitution, everyone has the right of access to public documents, except in the cases provided for by law; And these are precisely the cases on which the legal reserve is based. This is a constitutional and legal guarantee, the content and scope of which are contained in Article 61 of the Commercial Code, which stipulates that the private books and documents of the trader, except those for which the same law authorizes their publication, may not be examined by persons other than their owners or persons authorized to do so, because of the protection of the right to privacy. under the threat of the criminal sanction provided for in Article 62 of the Commercial Code. This protection extends not only to physical or digital documents, but to all the information contained therein and respects the right of inspection enjoyed by the members and shareholders of a company and its audit body. The objection to persistence is appropriate only if the public body responds to the request but refuses to provide the requested information on the grounds that it is reserved in nature. In other cases where no substantial and timely response is given, or in any case other than rejection by a document with reservation, the appropriate mechanism is the Tutela action, either to protect the fundamental right of the petition or that of access to official documents. Thus, if the reply to the application does not contain the rules on which the alleged reservation of rights is based, the Tutela action is the only appropriate mechanism, since the applicant has no legal basis for bringing an action for perseverance before a contested court. To this end, the official concerned shall send the relevant documents to the court or administrative judge, which shall rule within ten 10 days. This period shall be interrupted in the following cases: (1) If the court or administrative judge requests a copy or photocopy of the documents on which it must rule or other necessary information, and until the day on which it officially receives them. 2.
When the Authority requests the service of the Council of State provided for by the Regulation to assume knowledge of the matter with regard to its legal significance or to harmonize the relevant criteria. If, after 5 days, the article remains silent or decides not to invoke knowledge, the action will continue before the court or administrative court concerned. What are the effects of the booking exception? In its judgment T-487 of 2017, the Constitutional Court stresses that the legal reserve can only act on information that endangers fundamental rights or constitutional interests, but not especially on the public process in which this information is inserted. It points out that, from a constitutional point of view, tax returns constitute semi-private information which has legal reservations, a situation which protects the data they contain and also extends to databases created from the processing of those data. PARAGRAPH. Documents containing opinions or views that are part of the staff consultative process are also excluded. “If the replies granted by the Colombian authorities to nationals deprived of their liberty abroad contain documents or information with legal reservations, these and their restriction of access to them must be protected in such a way that they constitute a duty of the Ministry of Foreign Affairs as an official channel between Colombian nationals and public institutions. to protect this reservation and thus to be able to transcribe the answers proposed by these institutions so that only information that is not taxed with the respective reservation is sent. The court is of the opinion that the right of petition is not considered to have been infringed if the authority responds to the applicant, even if the answer is no. As long as this is done under the conditions provided for by law, it constitutes in itself, whatever its meaning, the satisfaction of the right of petition. If the acquittal of the application decides to reject the application, the right of petition is not ignored and, therefore, no object has guardianship to seek protection. A completely different question is that of the validity of the administrative act in which the response exists, against which the petitioner has the means through the government, while protecting his interests.
In this case, an action for protection is not possible in view of the existence of other means of judicial defence, unless an attempt is made to avoid irreparable harm as a transitional measure. Extract from Articles 63 et seq. of the Commercial Code specifies that the protection of the reserve of documents constitutes an exception resulting from the obligation to defend public order and the public interest by granting the administrative authorities, in the exercise of their supervisory function, not only the power but also the obligation to require the professional to submit a communication. documents, in whole or in part, which prevent the administrators responsible for processing the information from objecting to its disclosure at the request of an authorised administrative body or a court decision.
Comments are closed.