High court slaps down ministry's dodges around transparency law

A unanimous full plenum of the Supreme Court has struck down two dodges that Minister of Public Works Benjamin Colamarco, the former commander of General Noriega's Dignity Battalions goon squad, has used to avoid disclosing 16 public documents pursuant to the nation's transparency law. The decision stems from a June 2007 habeas data lawsuit brought by Kevin Harrington, the court-appointed receiver for the assets of the fly-by-night but politically connected PYCSA construction consortium, which has never paid all of its bills for the Corredor Norte toll road project.

The Ministry of Public Works (MOP) has ignored the court-ordered receivership by which Harrington was mandated to seize the assets of PYCSA in order to ensure payment of the Metropolitan Natural Park for lands that PYCSA took for the Corredor Norte. PYCSA also has many other claimants, whose homes or back yards were taken for the toll road but who were never paid. The largest asset that PYCSA had, the concession to build the Colon - Panama Autopista, was transferred to the bribery-prone Brazilian corporation Odebrecht SA (whose criminal activities were at the center of a scandal that led to the ouster of a Brazilian president) without respect to the receivership and without compensation to PYCSA's creditors. Harrington's requests for information under the transparency law were related to his attempts to collect on behalf of the park.

One of Colamarco's ploys was the argument that only documents published in the Gaceta Oficial are subject to disclosure under the law. This was invoked to deny disclosure of an alleged 1997 resolution by which MOP purportedly approved the transfer of operation and maintenance of part of the Corredor Norte from PYCSA to a company called Autovias SA. One of MOP's, PYCSA's and Odebrecht's ploys to avoid payment of creditors is the pretense that PYCSA no longer owns or controls many of the things that Harrington might seize. In his demand to see the resolution approving that purported contractual transfer from PYCSA to Autovias, Harrington was essentially testing the validity of the move, given that said contract may have actually been a back-dated sham concocted for the sole purpose of thwarting creditors.

But as to that resolution, the nine magistrates held that the test of whether a document is in the public domain and subject to disclosure under the transparency law is not whether it must by law be published in the Gaceta Oficial but whether by its internal characteristics it is a document maintained by a public entity that is not encompassed in one of the legal exceptions to the law. Thus the court declared the refusal to disclose the purported MOP resolution approving a contract between PYCSA and Autovias "incorrect and also insufficient."

As to the other 15 documents that Harrington requested, MOP's answer was that they could be found on the Internet, either within documents published in the Gaceta Oficial or on the National Assembly's website. However, as anyone who has ever navigated those websites in search of information will know, they are user-unfriendly, most probably intentionally so. One may not, for example, run a key word or phrase search on those databases to conveniently locate information. It gets yet more arcane with the practice of burying documents within documents, such that a scan of the document headlines that are available by scrolling through the government's online archives would yield no clue that the sought-after information would be contained in the place where it is hidden.

The court, however, cited the text of the transparency law's article 7, which provides that if a government agency refers somebody to a document found online or in a public archive, it must "make known the source, the place and the form in which access may be had to previously published information." It therefore held that by simply telling Harrington that the information he sought was available in the Gaceta Oficial or on the legislature's website without specifying such things as the edition of the Gaceta and the particular document in which the requested information is found, or the precise Internet address where the information is published by the National Assembly, MOP's response was "incorrect and insufficient."

So with that court order in hand, did Harrington get his information?

Actually, no. When he went to MOP on September 8 to get the information that the court had ordered the ministry to provide, he was told that nobody there had heard of the court's decision and that he couldn't have the infomation. Thus on September 12, Harrington was back in the Supreme Court, filing a motion to have Colamarco held in contempt for disobeying a court order.

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