Cuba's Government Plans Law to Further Restrict Public Access to Information

The Cuban government is preparing a law aimed at further restricting public access to information on the island, as announced by the National Assembly of People's Power (ANPP) on Tuesday. This proposed legislation, known as the "Transparency and Access to Public Information Law," will be reviewed by ANPP deputies and is available for public scrutiny on the Parliament's website at the following link.

According to official media, the law seeks to "regulate transparency and the right to access public information, while outlining the obligations that must be met by responsible parties." Although the draft acknowledges that "the Constitution of the Republic states that all individuals have the right to request and receive truthful, objective, and timely information from the State, and to access information generated by state organs and entities," it emphasizes the need to "implement mechanisms that ensure citizens can access public administration information, while protecting information that jeopardizes national defense and security, as well as personal integrity, as generated by the State, Government, and other obligated entities."

Exceptions to Public Information Access

Defending the necessity of a normative provision that defines obligated entities and ensures effective compliance, Article 21 of the draft law outlines "exceptions to public information access." It specifies that exceptions include "classified or restricted information and circumstances, events, or attributes that, if disclosed, would cause harm, danger, or violate: a) Sovereignty, defense, and national security; b) personal data; c) ongoing judicial or administrative procedures; d) intellectual property rights; e) commercial data confidentiality; and f) the environment."

Additionally, Article 22.1 states that obligated entities must conduct a damage test, which limits access to information only when its disclosure poses a real risk to a protected interest. The damage test involves evaluating the balance between the harm caused by disclosing certain information and the benefits of making that information public. This assessment is performed by the obligated entity, ensuring that: "a) The disclosure does not present a real, demonstrable, and identifiable risk to public interest or national defense and security; b) its dissemination exceeds public interest; and c) the decision to disclose represents a greater benefit than the potential harm caused."

According to the government, this law aims to promote a culture of transparency in public management through the application of common regulatory methods for institutional, patrimonial, and personal document management systems and archives.

Cuban experts have responded to the ANPP's proposal. Lawyer Eloy Viera stated that "the survival of totalitarian regimes relies, among other characteristics, on their opacity and ability to keep public information out of citizens' reach. For this reason, the Cuban regime has handled any regulations related to transparency and the right to access information with extreme caution."

In an article published in El Toque, Viera notes the absence of a guaranteeing body to oversee the legislation's enforcement, unlike in Mexico, where the National Institute of Transparency exists, or in Argentina, with the Agency for Access to Public Information, or in Chile, which has the Council for Transparency. "Guaranteeing bodies are crucial as they are independent from any state institution, mediate between these institutions and the citizenry, and ensure compliance with access to information and transparency regulations. They also resolve claims when an authority declares certain information exempt or secret upon request by citizens," he explains.

However, the draft law indicates that the Citma will assume some functions of guaranteeing bodies. Yet, Citma is a central state administration body tasked with "controlling" obligated entities' provision of public information, but its specific powers are not clearly defined.