Chile

International Focus

History and Background

Freedom of information first entered the political sphere in Chile in 1980, with the National Constitution's 'probity' provisions. These requirements made the decisions of public bodies, the grounds for those decisions, and the procedures for arriving at those decisions public. In the subsequent years there was a great deal of legislative activity in the area, but it was not until the influential case of Claude Reyes, and the subsequent Chiledeportes and Publicam scandals in 2006,[1] that real progress was made on a comprehensive FOI Act. These centred around financial irregularities were rife in the government department responsible for sport, and brought to light serious abnormalities in electoral funding among certain politicians, with the effect that the government's reputation for honesty and competence was severely damaged [2].

A recent addition to those states with FOI laws, Law no. 20.285 on Access to Public Information [3] was passed in 2008, came into force on 20 April 2009. It constitutes Chile's first comprehensive scheme for access to information. The passage of the Act is interesting in that the press showed little interest in an FOI law until the president initiated a campaign to create such a scheme. Robert Michener has suggested that this quirk might be a result of the privileged position of the two major news agencies in Chile who were keen to protect their position of advantage in the marketplace developed through their network of contacts.[4]

Legislation

The 2008 Act includes both active and passive elements, requiring public bodies to proactively publish information that relates to the 'functions, competencies and responsibilities' of the body in question, as well as a right for everyone to request information within the ambit of the act. All requests must be dealt with within 20 working days unless the gathering of information is complicated, in which case it may be extended by 10 days as long as the extension is communicated to the applicant.

A body will be subject to the Act if it is at least 50 per cent owned by the State, while information is within the ambit of the law if it is a resolution of a public body, a document that gives substance to those resolutions, or if it relates the procedures used to make a decision. The provisions apply to information 'in the power of' public bodies, regardless of format, creation, origin or classification (art. 5). Currently, 276 public bodies are covered by the Act.

Exemptions

The Act provides a non-exhaustive list of exemptions in article 21, including where disclosure would affect the 'proper compliance' of a public body with its duties. This requirement may be fulfilled as a result of the content of the information or where the workload required to produce the data would be so great as to unduly divert the resources of the organisation. Standard grounds for withholding information, such as national security, national interest and the rights of third parties are also included.

Beyond those exemptions contained within the Act, exceptions can be added through other legislation that has been passed with a supermajority. Unlike systems such as that of the UK, all exemptions are absolute. If information is considered to fall within an exception, then public interest in release cannot override a decision to withhold.

Operation

It is free to make a request for information, and "any person" is able to do so, including non-Chilean nationals, although the relevant department may charge for the direct costs of reproducing the information.

Once a request has been denied, or the time limit for a response has expired, the applicant may lodge a complaint with the Council for Transparency (art. 24). The Council is an independent body created under the 2008 legislation to adjudicate disputes under the Act, and can order the release of information where it considers to be appropriate. It is also possible to lodge a complaint with the Council where it is alleged that the public body has failed to meet its duty of proactive disclosure (art. 8). While the existence of an independent administrative appeals body is widely considered to be a beneficial feature of Chile's FOI regime, Toby Mendel, the president of the Centre for Law and Democracy, has criticised the limited grounds for appeal as well as the limited nature of remedial orders. It is not possible to appeal regarding the costs of a request, or for the Council to award compensation for the poor behaviour of officials [5].

During the first year of the Act (April 2009 to March 2010), the Transparency Commission recorded public organisations receiving 34,482 requests, and a further 15,000 were been received from March to December 2010. On average, 93 requests are filed every day.[5a] Information from the Ministry of Defence is the most requested.

The Commission has compiled data on who is using the Act based on a survey answered by 13,405 requesters. Almost half of requesters are between 30 and 45 years old, male requesters outnumber females by 2 to 1, almost half live in urban areas, and almost half have university degrees. Non-Chileans have made only 3 per cent of all requesters. However, while compiling these demographic statistics the Commission does not compile information on the rate of disclosure [6]

The scheme has an innovative framework of sanctions for failure to meet the duties imposed by the legislation. The head of a public body, should they refuse to disclose without grounds, are liable for a of 20-50 per cent of their salary. These sanctions, alongside similar fines for failure to deliver information on time, should provide a powerful incentive to disclose information promptly where appropriate. However, there is no evidence available as to whether these sanctions are used and, if so, to what extent.

Critical reactions

The critical response to the 2008 Chilean law has been largely favourable. Toby Mendel considered the Act to be "on balance…strong" [7], and Silvana Lauzán, of the University of Chile's Human Rights Centre, considered it to be "a good law" that should contribute to "defending individual and collective rights, to discouraging corruption and to preventing abuse of power and authoritarianism"[8]. The relative youth of the legislation, however, may be a factor in the limited criticism of the Act so far.

References

[1] Claude Reyes and Others V Chile, 19 September 2006, Series C, No. 151; for the Chiledeportes and Publicam scandals see http://en.wikipedia.org/wiki/2006%E2%80%932007_Chilean_corruption_scandals

[2] Michener, Robert Gregory (2010) 'The Surrender of Secrecy: Explaining the Emergence of Strong Access to Information Laws in Latin America', http://gregmichener.com/Dissertation.html

[3] Access to Public Information (Ley de Acceso a la Información Pública) Law 20,285 http://www.bcn.cl/leyes/pdf/actualizado/276363.pdf (in Spanish)

[4] Michener (2010)

[5] Mendel, Toby (2009) 'The Right to Information in Latin America: a Comparative Legal Survey'

[5a] Commission of Probity and Transparency, http://www.leydetransparencia.gov.cl/noticias-principales/gobierno-recib... (translated via Google translate)

[6] The Committee on Integrity and Transparency, http://www.leydetransparencia.gov.cl/noticias-principales/gobierno-recib... (translated via Google translate)

[7] Mendel (2009)

[8] IPS 20 April 2009 (http://ipsnews.net/news.asp?idnews=46570)