In 2006, by ruling in “Claude Reyes” case, the IACHR Court established a principle of great relevance for the subsequent legal construction of the right of access to public information in the countries of the region. They said there that “…in a democratic society it is essential that state authorities be governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject only to a restricted system of exceptions.”

Then, in 2010, the OAS General Assembly approved the “Model Law on Access to Public Information” that quickly became the legal text that many countries sanctioned. Ten years later, on 21.10.2020, the Assembly approved a new version, this time 2.0, in which, among other relevant recommendations, such as the one related to data and statistics on gender issues, it proposed greater transparency of the information of entities, public and private also, that receive and manage public funds, as well as exemptions and, in general, tax benefits.

Although in recent years, exceptions have been incorporated in the access to public information legislation, for example in Argentina and Mexico, in order to give greater transparency to decisions on the destination of public expenditures, in most cases the compatibility of this disposition with the new one of citizens’ access to public information relevant to the exercise of their individual and collective rights, essentially linked to the improvement of the democratic system, this compatibility is still pending.

Thus, some tax law articles still promote total secrecy, such as art. 69 of the Tax Code of Mexico since its original version of the year 1938, in the same way as the Model Code of the Inter-American Center of Tax Administrations (CIAT) in its art. 117, have been interpreted by the Courts in the light of the principle of maximum publicity to mean that there certain information, for example that relating to tax benefits and their beneficiaries does not require that absolute reservation because other relevant interests, those of the rest of the citizenry, advise its publicity. In particular, with the aim of making public management transparent and favoring citizen participation and accountability processes as a way of consolidating democracy, the objectives of any open government policy or Open status, as Oscar Oszlak prefers to name it^[1].

Gabriela Ríos Granados, professor and researcher at the Institute of Legal Research of the National Autonomous University of Mexico, also refers to the need to reconcile tax secrecy and the right of access to information. To do this, he invokes what he calls a new conception of the taxpayer, in which, in addition to the private interest, that is, the taxpayer’s individual interest, there is also a  general interest to protect^[2]. Thus, the tax interest is no longer only of the States, which govern the Tax Administrations. The entire citizenry has an interest that each taxpayer fulfills their duty to contribute according to their real ability to do so.

As a result of this analysis, one can begin to think about a democratic tax secrecy, that is, a tax secret in which the privacy of people is guaranteed, but at the same time it allows the rest of the citizenry to have access to the necessary information to know if this tax duty was fulfilled, if the exemptions and other tax benefits charged with public funds of the entire community were used correctly, among other information that is estimated to be of relevant constitutional interest, as stated in more than one pronouncement by the Supreme Court of Justice of the Nation of Argentina, allowing its democratic access. A tax secrecy in which access to information on the origin and destination of public resources is possible, if the public interest weighing judgment reveals the need for its publicity, is a tax secrecy that does not protect compliant and non-compliant or opaque alike.

This is a classic topic. Carlos Nino, a great Argentine jurist, in some of his works^[3] also mentioned tax secrecy and  express his desire for a society with  a translucent tax system,  transparent enough to prevent the most ruthless from winning. In fact, in particular in Latin and Central America, inequality and poverty permanently challenge the constitutional democracy and greater transparency can be an ideal way to reduce the rates of tax evasion and also achieve the democratic quality to which the Spaniard Rafael Bustos Gisbert refers in his works when he says that for this,  we must create suitable instruments to reduce the rates of tax evasion^[4].

[1] Oszlak, Oscar, Estado abierto: ¿hacia un nuevo paradigma de gestión pública? Retos e innovaciones, 2013, disponible en: www.oscaroszlak.org.ar

[2] Ríos Granados, Gabriela, La influencia de las nuevas tecnologías en el derecho tributario: algunos casos de derecho comparado entre España y México, Universidad Nacional Autónoma de México, 2006, p. 166.

[3] Nino, Carlos S., Una teoría de la justicia para la democracia, Siglo veintiuno, Buenos Aires, 2013

[4] Bustos Gisbert, Rafael, Calidad democrática. Reflexiones desde la teoría, la realidad y el deseo, Marcial Pons, Madrid, 2017.

This author argues, by referring specifically to Latin American democracies, that these can be considered of good quality if they satisfy five aspects: 1) the electoral decision, 2) the political participation, 3) the accountability (accountability), (4) the responsiveness (receptivity to social demands) and 5) sovereignty. He also states that “Transparency control is a form of Good Governance control. This control is undoubtedly very modern and is justified by the generalization of the idea of the right to Good Governance, which implies the existence of a right of every citizen to access public information. A right to Open Government. This control is not evaluative, but purely descriptive. It would reflect what we have called above purely informative responsibility (accountability), in that it obliges all public entities to maintain a transparency policy capable of ensuring that any citizen can know the data related to the functioning of public administrations”.

He concludes that “Taking measures to improve the quality of democracy requires creating instruments to ensure its effective functioning. If these instruments depend, immediately or mediately, on the controlled organs themselves, their ineffectiveness is assured.

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