Introduction

The right of access to public information has undergone a notable evolution in contemporary law. Traditionally, it was derived from the republican form of government and the principle of publicity of state acts, and its original function was closely linked to democratic control of management and transparency of the administration. However, the advent of the environmental paradigm and the enshrinement of third-generation rights have substantially reconfigured this institute. Thus, access to environmental information is not an accessory right, but an essential instrument that enables informed participation, makes democratic control of public policies possible, and constitutes a preventive guarantee against environmental risks.

In this article, we will analyze how it is configured in the Argentine environmental legal system and how the federal organization and the distribution of competencies in the matter carried out by Article 41 of the Argentine Constitution influence its configuration. To this scheme we must add the projection of the Escazú Agreement following its ratification by Argentina.

With that aim, we will critically and systemically examine the state of this fundamental right, identifying its constitutional foundations, its reception in the regulations on minimum budgets for environmental protection, and its consolidation through national and international jurisprudence. The purpose of this contribution is to offer useful conclusions for judicial interpretation, legislative drafting, and institutional design aimed at guaranteeing the effective exercise of the right of access to environmental information.

The research adopts a legal-dogmatic methodology, based on the systematic analysis of the Argentine Constitution, national legislation on minimum budgets, applicable international instruments, and the jurisprudence of the Supreme Court of Justice of the Nation and the Inter-American Court of Human Rights. The study focuses on the Argentine federal regime and on current standards regarding access to environmental information.

The right of access to information

General framework

The right of access to information is that which includes the possibility of seeking, accessing, requesting, receiving, copying, analyzing, reprocessing, reusing, and redistributing public information freely. It has its direct origin and foundation in the republican form of government, specifically in the principle of publicity of government acts, “in the sense that the acts of the powers of the State must be public, accessible to the public, and not in the sense of propaganda for government management” (Manilli, 2021, p. 669).

It has also been related to administrative transparency, expressing that this is unthinkable if access to the public is not guaranteed (Basterra, 2006, p. 31), and it is considered a necessary condition for the exercise of other rights, in particular those related to citizen participation.

Likewise, it is possible to find its foundation in other basic rights, such as freedom of expression and thought, understood as the right to disseminate our ideas and to access and disseminate the ideas of other people (Balbín, 2015, p. 406), and it is precisely in this way that it is received in the American Convention on Human Rights, known as the Pact of San José de Costa Rica (PSJCR), which in art. 13 establishes that the right to freedom of thought and expression includes “freedom to seek, receive, and impart information and ideas of all kinds...”.

Moving on to the text of the Argentine Constitution (AC hereafter), it is possible to find references to this right in several of its norms. In this regard, it should be noted that even before the constitutional reform of 1994, in the text of 1853, it was possible to find it explicitly in the right to “petition the authorities” of art. 14 AC and implicitly in the clause of art. 33 AC. And, after the 1994 reform1, it was expressly included in several precepts. Thus, art. 38 AC recognizes, in favor of political parties, “access to public information and the dissemination of their ideas”; art. 41 AC, in its second paragraph, provides that “the authorities shall provide... for environmental information and education”; art. 42 AC recognizes, in favor of consumers and users of goods and services, the right “to adequate and truthful information”; art. 43 AC, third paragraph, provides for the habeas data action, referring to another aspect of the right of access to information. Finally, in the human rights treaties incorporated into the constitutional block by art. 75, inc. 22 AC, there are also different instruments that recognize it: the Universal Declaration of Human Rights, in art. 19; the PSJCR, in the aforementioned art. 13; the International Covenant on Civil and Political Rights, in art. 19.2; and the Convention on the Rights of the Child, in art. 13.

In the infra-constitutional sphere, the right under analysis has also been received in different instruments, some of general scope and others referring to specific matters. The latter is the case with the first laws enacted in Argentina, which reflected the application of this right in environmental matters. Thus we find Law No. 25,675 (2002), known as the General Environmental Law (GEL hereafter), enacted by the National Congress in November 2002, which contains several mentions of environmental information and the right to access it. And Law No. 25,831, which establishes the “Regime for free access to public environmental information”, approved by the National Congress in November 2003. Both provisions will be analyzed in detail later.

It was after these sectoral norms that instruments appeared to regulate access to information in a general way for the entire public administration at the national level. The first of them, with an infra-legal character, is Decree 1172/2003, from the National Executive Power, of December 2003, by means of which, among others, the “General regulation for access to public information for the National Executive Power” (Annex VII) is approved, later modified by Dec. 79/2017. This decree was the only regulatory instrument that regulated the exercise of the right for a little more than a decade, together with the doctrine generated by the Supreme Court of Justice of Argentina with important rulings in the matter and to which we will briefly refer later, until in 2016 national Law No. 27,275 was enacted, with the objective of “guaranteeing the effective exercise of the right of access to public information, promoting citizen participation and the transparency of public management” (Article 1). Regulated by Decree 206/2017, issued by the National Executive Power, the law came to generate an advance and progress in the matter, as its legal character gave it greater hierarchy in the system of sources. Likewise, this implied an expansion of the scope of application that the decree possessed, which only applied to the National Executive Power, now being mandatory legislation for other subjects, including the Legislative Power and bodies that operate within its sphere, the Judicial Power of the Nation, the National Public Prosecutor’s Office, the Public Defender’s Office of the Nation, and the Council of the Magistracy. Other relevant contents of the law are the principles listed in art. 1, defining the right of access to public information as that which “comprises the possibility of seeking, accessing, requesting, receiving, copying, analyzing, reprocessing, reusing and redistributing freely information under the custody of the listed obligated subjects” (art. 2), and exceptions to the provision of information are established (art. 8). Likewise, in Chapter III we find the procedural requirements for information requests and their processing, as well as the channels for claims in cases of refusal. Finally, among the notable contents, in Chapter IV the Agency for Access to Public Information is created as an autarkic entity that must ensure compliance with the principles and procedures established in the law, guarantee the effective exercise of the right of access to public information and promote active transparency measures.

Jurisprudence

To conclude this general overview of the right under study, we must make a brief reference to the jurisprudence in the matter. To begin, we must mention the leading case Claude Reyes et al. v. Chile of the Inter-American Court of Human Rights (Inter- American Court, 2006)2, which arose from the refusal of the Chilean state to deliver information to the applicants regarding a deforestation project to be carried out in the twelfth region of said country by the Trillium forestry company. There, the Inter-American Court left important concepts and principles applicable to the matter. In the first place, after having expressly established that art. 13 of the Convention protects the right of every person to request access to information under the control of the State, it added that:

The actions of the State must be governed by the principles of publicity and transparency in public management, which makes it possible for the persons who are under its jurisdiction to exercise democratic control of state management [...] Access to information under the control of the State, which is of public interest, can allow participation in public management, through the social control that can be exercised with said access (Inter-American Court, 2006, para. 86).

Another important contribution of this ruling refers to the restrictions on the exercise of this right. The Inter-American Court established that these “must be previously established by law” (para. 90) and these must be enacted “for reasons of general interest and with the purpose for which they have been established” (para. 90). It then adds that the restriction “must respond to an objective permitted by the American Convention” (para. 90) and must be “oriented toward satisfying an imperative public interest”, and “the one that restricts the protected right to the smallest degree should be chosen” (para. 91). Finally, we cannot fail to highlight paragraph 92 of the sentence, where the Inter-American Court establishes the principle of maximum disclosure that must govern state authorities, which implies that “all information is accessible, subject to a restricted system of exceptions” (para. 92).

This significant pronouncement by the Inter- American Court was taken, together with other international precedents, by the Argentine Supreme Court of Justice when issuing rulings related to the right of access to information. The first example of this is the case Asociación Derechos Civiles v. EN - PAMI (2012), by means of which a case of a request for information made by the plaintiff to the National Institute of Services for Retirees and Pensioners (PAMI) was brought before the high court in relation to the budget allocated to official advertising in the year 2009 and the advertising investment corresponding to the months of May and June of the same year. The defendant alleged that it was not obliged to provide said information, as it is not part of the National State, having personality of a different legal nature, and, therefore, Decree 1172/03 was not applicable to it. In this regard, it should be clarified that, according to Argentine legislation, this National Institute is a non-state public law legal person, with financial and administrative individuality (according to its creation law, National Law No. 19,032, art. 1).

Faced with this controversy, the Argentine high court, after a detailed review of the international instruments in which this right is received and having made express mention of what was said by the Inter- American Court regarding exceptions to access to information, concludes that in this case:

The appellant’s refusal to provide the information or to provide it in an incomplete form is not reasonable, since the plaintiff association’s petition complies with the aforementioned international guidelines and with the scope given to decree 1172/03 by the appellate court. (CSJN, 2012, consid. 12).

And later it adds:

The object of the claim concerns a request for public information from an institution that manages public interests and holds a function delegated by the State, the interaction between the defendant entity and the state administration being indisputable (cf. fiscal opinion on pages 92/97). Therefore, with that scope, the plaintiff association has the right to be provided with the requested information in complete form and the defendant has the obligation to provide it, as long as it does not demonstrate —a circumstance that has not occurred in this instance— that a legal restriction applies to it. (CSJN, 2012, consid. 13).

In this case, the way in which the Argentine Court interpreted the text of Decree 1172/03 stands out, extending its provisions to PAMI, even when it was not listed as one of the subjects obligated by the norm, prioritizing the public character of the interests and the function of the defendant entity, as well as its interrelation with the national public administration.

Another ruling that should be highlighted is the one issued in the case CIPPEC v. EN – Min. Social Development (2014), where the Argentine Court specifies active legitimacy when requiring information, especially the relationship with the provisions of Law 25,326 on Personal Data Protection. This case refers to the request for information by the plaintiff to the Ministry of Social Development of the Nation to know data on social aid granted to individuals and legal entities during the years 2006 and 2007. The ruling reaffirms the broad character of legitimacy, consolidating its doctrine that it is improper to demand a qualified interest from the person requesting the information. It adds that “it is information of a public character, which does not belong to the State, but belongs to the people of the Argentine Nation and, consequently, the sole condition of being a member of the community is sufficient to justify the request.” In relation to personal data, the Court makes a distinction between these and sensitive data and analyzes in the specific case the apparent collision between the right to privacy and the honor of the persons whose data are requested and the right of access to information. The tribunal concludes that in this case there is no violation of privacy or honor, as the requested data do not constitute sensitive data, that is, those that according to Argentine legislation are those that refer to racial and ethnic origin, political opinions, religious, philosophical or moral convictions, union affiliation, health or sexual life. This same doctrine was reiterated in the case Garrido, Carlos Manuel v. EN – AFIP (2016).

Another essential ruling when talking about the jurisprudence of the Argentine Court on this matter is the one issued in the case Giustiniani, Rubén Héctor v. Y.P.F. S.A., referring to the request for copies of an investment agreement between YPF, a corporation whose shareholding composition corresponds 51% to the Argentine National State, and the private company Chevron. The judgment stands out for the analysis it performs regarding whether YPF is a subject obligated by Decree 1172/2003 on access to information or not. To this end, the ruling analyzed National Law 26,741, by which the Argentine State regained control of YPF and which exempts it from internal and external control of the national public administration. The Court’s conclusion is that there is no normative conflict between said law and Dec. 1172/03, as the latter regulates a control different from administrative control: “democratic control, which presupposes access to public information, and which can be carried out by any citizen to monitor the progress of matters of general interest.” And with a citation to its previous precedents it adds:

The state character of the company, even if partial, has as its correlate the attraction of the principles proper to public action, derived from the republican system of government, based on the responsibility of public authority, one of whose consequences is the publicity of its acts to sharpen the control of the community.... (CSJN, 2015, consid. 21).

In this case we see once again the broad criterion of the Argentine Court to subject to access to information legislation subjects who, according to their organizational form, do not have a public or state character, but who fulfill and develop eminently public interests.

The situation in Argentine environmental law

General considerations

After this general overview of the right of access to information in Argentina, we will proceed to analyze its characteristics in the environmental law of this country.

To do this, in the first place, we must highlight the importance of environmental information. For this, the words of Ricardo and Pablo Lorenzetti (2018) are enlightening: “every person, group or organization must have adequate and permanent access to information about the environment and its progressive development that public authorities have available, within the framework of their national legislation, allowing the knowledge, understanding and comprehension of information about projects, materials and activities that pose a danger to their communities, as well as measures for protection, mitigation, compensation and reparation of the environment” (p. 73).

For their part, Hutchinson and Falbo (2011) consider that “environmental information is a true and indisputable principle of law” and later add that this “enshrines the right to be informed in a clear and accessible way and in a truthful manner. In this way, if the data provided are confusing or their understanding is complicated beyond what is reasonable, they do not fulfill the minimum requirements to be considered environmental information; nor if the information provided is not truthful” (p. 294-295).

International antecedents

Now, if we want to look for the normative origins of this right —or principle, in the words of Hutchinson and Falbo (2011)— applied to environmental law, we must go back to an international instrument prior to the Argentine constitutional reform of 1994. We refer to the Rio Declaration on Environment and Development (United Nations, 1992), arising from the Rio de Janeiro Earth Summit3, organized by the UN in June 1992. Although this configures a non-binding commitment, it is considered by the doctrine as one of the most important conferences, due to its objective of laying the foundations of a global policy that ensures the continuity of life on earth (Botassi, 1997, p. 52), which was captured through the proclamation of 27 principles.

Among them, in relation to the theme of the present work, we must highlight Principle 10, which reads: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided” (the emphasis in italics is ours).

As we see from the transcribed text, referred to as the doctrine of the three accesses (Acuña, 2003), the importance in environmental matters of the right of access to information and its close relationship with citizen participation and access to justice clearly arises.

Its reception in Argentine domestic law

The guiding ideas previously described were taken up by Argentine legislation in different regulatory instruments. The first of them, and most important, is the Argentine National Constitution, which after the 1994 reform incorporated in art. 41, 1st paragraph, the recognition for all inhabitants of the “right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those of future generations; and [...] the duty to preserve it”.

But, in relation to the object of the present work, what is provided for in the second paragraph of the article is of great interest, where the obligations of the “authorities” are established, among which is that of providing for “environmental information and education”. To fully understand the scope of the norm, two clarifications should be made. In the first place, it has been said that “the norm suffers from poor legislative technique... [i]n the case of information, it should have indicated providing for access to public environmental information and not the information, as the difference is substantial” (Esain and García Minella, 2013, p. 64). In the second place, the term “authorities”, given that no type of precision is made, must be interpreted broadly, including all those mentioned in the Second Part of the Constitution, that is, the Federal Government, the Provincial Governments, the municipalities, the Autonomous City of Buenos Aires and those derived from concertation (arts. 124 and 125 AC) (Esain and García Minella, 2013, p. 64).

It is then in the first two paragraphs of art. 41 AC where the right of access to environmental information is expressly established and recognized. In relation to this, what was expressed by Sabsay and Tarak (1997) is noteworthy, who, when referring to this particular norm, said that not only is a right being recognized, but an obligation is also imposed, that of preserving the quality of the environment. For this, “we must have the necessary tools to be able to effectively fulfill said task... In this sense, access to information stands as an essential instrument so that we can act in time and efficiently. This is why we consider that we are facing both a right and a guarantee. We think this is so because with the necessary information we will be able to achieve the effective enjoyment of our right to a healthy environment, to the extent that we will be able, with knowledge of the cause, to thwart the obstacles that stand in the way. On the other hand, in that way we will be able to comply at the precise moment with the duty that has been imposed on us” (p. 31).

The words of Bidart Campos (2001) are also instructive, who, in commentary on this constitutional norm, said: “The State assumes, in regard to information, two duties: one, to collect it and process it properly; that is, the State must inform itself, which presupposes —among many other things— constant vigilance and control to know real or potentially risky or harmful situations; the other duty consists in supplying and disseminating the information accumulated and updated, all this in an effective and constant way” (p. 235).

The right in the laws of minimum budgets for environmental protection

Moving now to the infra-constitutional order, the right of access to environmental information has been recognized and received in several environmental minimum budget laws. In this line, it is first worth making a brief mention of the meaning and relevance of these norms being “minimum budgets”, mainly due to the effects they produce regarding the scope of application of their provisions, in contrast to the general legislation in the matter already mentioned (Dec. 1172/03 applicable only to the National Executive Power and Law 27,275, of national scope only). For this, we must observe what is prescribed by the third paragraph of art. 41 AC. It establishes how the distribution of competencies in environmental matters between the federal (national) order and the local orders (provinces and municipalities) is. Textually, the paragraph reads: “It corresponds to the Nation to enact the norms that contain the minimum budgets of protection, and to the provinces, those necessary to complement them, without the former altering local jurisdictions.” In relation to this, it is worth specifying that Argentina is a federal country, which implies that two different legal orders coexist: the federal order, on the one hand, and the local orders (the provinces), on the other.

This distribution of competencies has been defined by national environmental doctrine as the system of complementary concurrence (Esain, 2008, p. 234 et seq.). This implies that both the federal and local (provincial) orders regulate the same subject matter — environmental protection— but each of them in the proportion that the constitutional norm assigns to them: the Nation only the minimums and the provinces their complement (Esain, 2008, p. 217 et seq.). This generates the need for legislative activity both nationally and subnationally, that is, from the provinces and even from the municipalities, which would function as a second-degree complement (Esain, 2008, p. 263). To this we must add that the legislation enacted by the Nation, of minimum budgets, is operational and directly applicable, obliging the 23 provincial jurisdictions, the Autonomous City of Buenos Aires, and the municipalities, who cannot ignore them. Likewise, these norms serve as a normative floor, allowing the provinces to develop their own policies, always providing for higher standards of protection (Esain, 2020, p. 319-335 and 434-436).

Therefore, although the minimum budget laws do not possess a formal hierarchy superior to other national laws, they present a special territorial and jurisdictional efficacy derived from article 41 of the National Constitution, as they set mandatory minimum standards for all jurisdictions, causing the right of access to environmental information to have a minimum and uniform regime throughout the country, which does not happen with the right of access to “general” public information.

General environmental law

Returning to the review of the regulations, the first law that should be mentioned is Law 25,675, of November 2002, known as the General Environmental Law (GEL). Numerous references to environmental information can be found there: in art. 2, inc. i), one of the objectives of national environmental policy is stipulated as “Organizing and integrating environmental information and ensuring the free access of the population to it” and art. 8, inc. 5 mentions as one of the instruments of policy and environmental management the “environmental diagnosis and information system”.

Further on, under the title “Environmental Information”, we find three provisions dedicated to the theme. The first of them, art. 16, is the one that expressly receives the right of access, as after providing for the obligatoriness of “physical and legal persons, public or private” to provide “information that is related to environmental quality and refers to the activities they develop”, it says: “Every inhabitant may obtain from the authorities the environmental information that they manage and that is not legally contemplated as reserved.”

For their part, the following articles refer to what we could call one of the other sides of the right, that is, the obligation of the enforcement authority to “develop an integrated national information system that manages significant and relevant data on the environment, and evaluates available environmental information” (art. 17) and the duty to “inform about the state of the environment and the possible effects that current and projected anthropogenic activities may provoke on it” through the preparation and presentation before the Congress of the Nation of an “annual report on the environmental situation of the country” (art. 18).

From the interaction of these three articles and following the line of Bidart Campos’s words cited above, the subjective component of this right arises. Thus we find the active subject “every inhabitant”, who is the one who can obtain environmental information from the authorities (art. 16). The passive subject “the authorities”, who are those who must manage the information, that is, store it, give access, publicize it, publish it, update it, request it from the “subjects obligated to provide it” or, as the case may be, produce it (arts. 16, 17 and 18). And, finally, the subject obligated to provide information, that is, those physical, legal, public or private persons who possess public environmental information, “because some component of the environment to be investigated is on their property —for example, the owner of a field where a species of flora dwells— or because they develop an activity that affects the environment —for example, when they are the holder of an industry—” (Esain, 2020, p. 676-677).

Law 25,831 on access to public environmental information

After the GEL, and with the aim of completing some of its contents, a law specifically dedicated to developing the right under study was enacted in November 2003; we refer to Law 25,831 on Access to Public Environmental Information. Its object and scope of application are clearly defined in art. 1, which establishes: “The present law establishes the minimum budgets for environmental protection to guarantee the right of access to environmental information that is in the possession of the State, both in the national as well as provincial, municipal and City of Buenos Aires spheres, as well as of autarkic entities and companies providing public services, whether public, private or mixed.”

Next, performing a brief review of the content of the norm, we find in its art. 2 the definition of environmental information, which is understood as “all information in any form of expression or support related to the environment, natural or cultural resources and sustainable development.”

Following this, we find provisions of an instrumental type for the exercise of the right. Thus it is established that access will be “free and gratuitous for every physical or legal person”; without it being necessary to “prove reasons or a determined interest” (art. 3). Then the obligated subjects are mentioned, including “the competent authorities of public bodies and the holders of companies providing public services, whether public, private or mixed” (art. 4).

Likewise, in art. 7 we find the reasons why requested information may be denied. They are: affectation of national defense, internal security or international relations; when the requested information is subject to consideration by judicial authorities, and its disclosure or use by third parties may cause harm to the normal development of the judicial procedure; when commercial or industrial secrecy or intellectual property could be affected; the confidentiality of personal data; when the information corresponds to scientific research work, as long as these are not published; when the object of the request could not be determined; and when the information is classified as secret or confidential by current laws. Finally, the article adds that the refusal must always be reasoned and, in the case of administrative authority, the requirements of reasonableness of the administrative act must be met.

Regarding the system of exceptions, it has been said that “it is extremely restricted, as those that are clearly considered, by most legislations and doctrine, as necessary to safeguard are enunciated, avoiding establishing discretionary powers so that officials can deny the requested information by invoking the safeguard of an eventual ‘general interest’” (Napoli, 2022, p. 5).

Finally, art. 8 refers to the deadline for the resolution of environmental information requests, establishing a maximum period of thirty (30) business days; and art. 9 is dedicated to violations of the law, considering as such the obstruction, falsehood, concealment, lack of response in the deadline established in the previous article or the unjustified refusal to provide the requested information, and every act or omission that, without justified cause, affects the regular exercise of the right of access to environmental information. In said cases a direct judicial channel, of a summary nature, before the competent courts is enabled. Likewise, it is established that public officials or employees who incur in any of these conducts will be liable to the sanctions provided for in the public employment laws corresponding to each jurisdiction; and public service companies that do not comply with the obligations established in the law will be liable to the sanctions provided for in the norms or contracts that regulate the concession of the corresponding public service. In both cases, without prejudice to the civil and criminal responsibilities that may correspond.

Sectoral laws

Finally, it is worth making a brief reference to other sectoral minimum budget laws that refer to environmental information. We will simply mention some of them and their most relevant provisions. For the most part, they are focused on the obligation of authorities to compile it and eventually provide it to those who duly request it, leaving the regulation of the right to access it in the laws already analyzed.

In this sense, some of these laws are:

1. Law 25,612 on Integral management of industrial waste and service activities (2002): the development of an “Integrated Information System” is established, of free access for the population, which manages data regarding the integral management of waste (art. 57, inc. e); information referring to records of generation, handling, transport, storage, treatment and final disposal of industrial waste (art. 19) must be integrated there, as well as information from the records of operations of storage, treatment or final disposal plants for industrial waste (art. 34).
2. Law 25,916 on Integral management of household waste (2004): among the functions of the enforcement authority is that of “preparing an annual report with the information provided by the provinces and the City of Buenos Aires” regarding the type and quantity of household waste that is collected (art. 25, inc. b).
3. Law 26,331 on Minimum budgets for environmental protection of native forests (2008): one of the objectives of the National Program for the Protection of Native Forests is to “keep updated information on the surface area covered by native forests and their state of conservation” (art. 12, inc. e). Likewise, art. 26 of the law stands out, in which it is provided that, for native forest clearing projects, compliance must be given with arts. 16, 17 and 18 of the GEL; in particular, “adopting necessary measures in order to guarantee access to information of indigenous peoples, original peoples, peasant communities and others related, on authorizations granted for clearing, within the framework of Law 25,831 —Regime for Free Access to Public Environmental Information.”
4. Law 26,639 on Minimum Budgets for the Preservation of Glaciers and the Periglacial Environment (2010): the National Glacier Inventory is created as an information instrument (art. 3), which must contain information on glaciers and the periglacial environment by hydrographic basin, location, surface area and morphological classification of glaciers and the periglacial environment (art. 4). Likewise, the following functions are placed on the enforcement authority (art. 10): prepare a periodic report on the state of glaciers and the periglacial environment (inc. e); develop environmental education and information campaigns (inc. g), among others.
5. Law 27,520 on Minimum Budgets for Adaptation and Mitigation to Global Climate Change: for the preparation of the National Adaptation and Mitigation Plan to Climate Change, the National Climate Change Information System is created “as an instrument for the diagnosis and development of response plans to climate change in different jurisdictions and to guarantee the robustness and transparency of the national greenhouse gas inventory and monitoring of mitigation measures” (art. 17). Chapter VI “On Participation and Information” also stands out, where it is established that each jurisdiction must promote participation processes for defining the best adaptation and mitigation actions to Climate Change” (art. 25). For its part, art. 26, titled “Environmental Information”, establishes that all data and documentation related to the application of the law is public environmental information in terms of laws 25,831 and 25,675, and places on the competent authorities the realization of actions to guarantee the dissemination and communication of information in their possession. Finally, express reference is made to the annual environmental report provided for in art. 18 GEL, to which an analysis and evaluation of the measures of the National Adaptation and Mitigation Plan to Climate Change must be incorporated (art. 27).

The regional agreement on access to information, public participation and justice in environmental matters in Latin America and the Caribbean

Finally, we cannot fail to highlight the existence in environmental matters of a Regional Agreement, of which Argentina is a part, on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (known as the “Escazú Agreement”), opened for signature in September 2018 and ratified by Argentina by Law 27,566 (2020).

This regional agreement is the first legally binding one for the countries of Latin America and the Caribbean and arose as a result of the “United Nations Conference on Sustainable Development” of 2012 (Rio + 20) and is based on Principle 10 of the Rio Declaration already commented on. Furthermore, it presents as a noteworthy feature having had relevant participation from civil society and the general public in its negotiation (Cafferatta, 2018).

This agreement has signified a great advance, raising the standards of access to information provided for by internal legislation in which, as we saw, it was sufficiently regulated. This strengthening is due to the place where it is inserted within the system of environmental sources in Argentina, where it has a hierarchy superior to laws and inferior to the National Constitution and results in “direct and immediate application, operational in aspects that do not require subsequent development, and programmatic in those that do” (Esain, 2022a, p. 1). This must also be analyzed and inserted in relation to the distribution of competencies in environmental matters established in the third paragraph of art. 41 AC that we commented on above. In this sense, since the Agreement is superior to the minimum budget laws (enacted by the Nation), these must be interpreted in accordance with it, and this new configuration of those laws, insofar as they are minimum floors that the provinces (and also the municipalities) must respect, causes the contents of the Agreement to also radiate toward those local orders. This has been so interpreted by Esain, who expresses: “The Escazú Agreement serves as a super-minimum budget, as it modifies the federal floor, because it is of superior hierarchy to laws (supralegal), reconducting them, as well as other instruments that make up the federal block of PMPA [Minimum budgets for environmental protection]. Due to the matter that composes it, the Agreement will have a direct influence on access to information (modifying laws 25,675, 25,831), citizen participation and access to justice, but also indirect influence on laws that use tools that internally incorporate these elements. Furthermore, because it is a new PMPA, it modifies and enriches the 24 local orders (23 provinces and CABA). The same for municipal orders where PMPA are also operational, within the framework of their competencies...” (Esain, 2022a, p. 1).

Regarding its particular content, there are several provisions that are worth mentioning and highlighting. We previously clarify that, although the agreement includes provisions referring to citizen participation and access to justice in environmental matters, we will leave them aside, mentioning only those dedicated to the right of access to information, in order not to depart from the objective of the present work.

Thus, in the first articles we find general provisions. In art. 1 the objective of the agreement is established (“guaranteeing the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in environmental decision-making processes and access to justice in environmental matters”); in art. 2 definitions of important concepts in the matter are given; in art. 3 the Principles for the implementation of the Agreement are set out. Among them, due to their close relationship with access to information, “equality and non-discrimination”, the “principle of transparency” and the “principle of maximum publicity” stand out.

Then, the Agreement dedicates two extensive articles to “Access to environmental information” (art. 5) and to “Generation and disclosure of environmental information” (art. 6). Among the most important contents of these precepts we can highlight the following:

- the right to access environmental information must be guaranteed, in accordance with the principle of maximum publicity;

- access to environmental information for persons or groups in vulnerable situations must be facilitated, for whom assistance must be guaranteed to formulate their requests and obtain responses;

- the reasons for refusal of access must be established by law previously and will be of restrictive interpretation;

- states must guarantee that their authorities generate, compile, make available to the public and disseminate relevant environmental information in a systematic, proactive, timely, regular, accessible and understandable way. Likewise, they shall encourage the disaggregation and decentralization of environmental information at subnational and local levels;

- there may be updated environmental information systems, which may include, among others, reports on the state of the environment; lists of contaminated zones, by type of contaminant and location; information on the use and conservation of natural resources and ecosystem services; sources relating to climate change;

- in case of a threat to public health or the environment, immediate and effective disclosure of relevant information that allows the public to take measures to prevent or limit eventual damage must be guaranteed;

- the disclosure of environmental information in various languages used in the country will be sought;

- access to environmental information contained in concessions, contracts, agreements or authorizations that have been granted and that involve the use of public goods, services or resources will be promoted;

- it must be ensured that consumers and users have information on the environmental qualities of goods and services and effects on health, favoring sustainable consumption and production.

Conclusions

At this point, we can make some concluding notes. The right of access to information presents itself as a challenge for authorities and requires from them a strong commitment to make it effective. We are facing a right that has a constitutional basis and a regulatory reception that consolidates and strengthens it. National jurisprudence has been consistent with this recognition.

The above is strongly highlighted in environmental law, where the requirements are greater, with express obligations for authorities to generate information, keep it updated, request it from obligated subjects, adapt it to be accessible to citizens, among others.

In this sphere, the novelty is found in the jurisdictional distribution carried out by the third paragraph of art. 41 AC, which implies that, because they are regulated in minimum budget norms, the contents of the right of access to environmental information and the obligations of authorities deploy direct effects in provinces and municipalities. This generates a great difference with the general regime of the right, whose regulation is only applicable in the national order.

Finally, the influence of the Escazú Agreement must be highlighted, which modifies the law from a supralegal hierarchy, projecting itself over its national and local regulation, raising operational standards.

The important role of this right for the exercise of an active citizenship, supported by the three accesses (information, participation and access to justice), which implies providing greater guarantees to majorities and minorities in government management, allowing an evolution in our democratic system, cannot fail to be highlighted.

Guaranteeing the right of access to environmental information is an indispensable condition for the prevention of damage to the environment, effective participation and the consolidation of a robust environmental democracy; its implementation requires political will, technical resources and effective judicial controls.

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Funding: No funding was received for the research, authorship, and/or publication of this article.

Conflict of interest: The author declares that there is no commercial or financial conflict of interest for this research.

Author contributions: Florencia Cheruse: Conceptualization, Writing - review and editing, Writing - original draft, Investigation.

Use of AI: The author declares that no artificial intelligence tools (such as ChatGPT, Copilot, Gemini, or others) have been used in the writing, analysis, or review of this article.

Notes

1 We clarify that, from now on, whenever we refer to the Argentine Constitution, we are referring to the 1994 text.

2 Regarding the pronouncements of the Inter-American Court of Human Rights, it should be recalled that, as the organ of authentic interpretation of the ACHR, its rulings must be taken as an interpretive guide for Argentine courts. This is in accordance with the interpretation made by the Argentine Supreme Court of the phrase “in the conditions of its validity,” of Art. 75, clause 22 of the AC, according to the 1994 text (conf. doctrine of the rulings “Ekmekdjian c/ Sofovich” 315:1492; “Giroldi” 318:554; “Bramajo” 319:1840; “Felicetti” 323:4130).

3 On that occasion, documents of great relevance to the subject were opened for signature, such as the Framework Convention on Climate Change and the Convention on Biological Diversity. Likewise, it should be noted that on that occasion, ‘172 governments were involved and 108 Heads of State and Government, 187 foreign representatives, 17 specialized UN agencies, 35 intergovernmental organizations, and also a significant number of NGOs participated’ (Serafini, 2022).