Las restricciones del derecho al acceso a la información reservada en el marco de la defensa y la seguridad nacional

Abstract

The Administrative Court of Cundinamarca in resolving requests for access to reserved information, related to matters of defense and national security, within the framework of insistence resources, part of the restrictions established by the legislator. However, it is important to establish whether these interpretative judgments are of mere legality or constitutionality and, consequently, if the aforementioned restrictions are fair, reasonable and proportional. In this sense, the methodology was based on a jurisprudential analysis of the decisions made by the Administrative Court of Cundinamarca, in the resources of insistence, which involve matters of defense and national security, through the development of several categories that must be taken into account to guarantee the right to access public information, such as ownership, legitimacy, interest, use and destination of the information. The investigation carried out shows that the Court, in the requests for information related to national defense and security matters, making judgments of mere legality, delimiting its decisions to fit the factual situation in the norm. However, there have been some nuances and changes in position in the decision trends that make the Court is in the process of transitioning from trials of mere legality to constitutionality judgments, so it is considered necessary that legal operators take into account the resolve the requests for information subject to this thesis, more comprehensive and systematic judgments of the legal system that include interpretative categories such as ownership, legitimacy, interest, unenforceability, use and destination of the information, in order to have more just, proportional decision scenarios and reasonable.