By Peter Kornbluh
Special thanks to Marianna Enamoneta, Emilene Martinez-Morales, Carly Ackerman, Joshua Frens-String and Yessica Esquivel Alonso
On April 20th, Chile will become the most recent country to have a functioning Freedom of Information Actand potentially establish a leading model for new access to information laws around the world.
The new “Law of Transparency of the Public Service and Access to Information of State Administration” will institutionalize procedures for releasing government documentation and information, and, its supporters hope, codify the principle of the right-to-know in Chile. “This reform implies a profound cultural change,” stated Chilean President Michelle Bachelet, as she signed the law into effect last August. “To begin with, it will drastically change the way in which citizens relate to the government.”
The comprehensive legislation moves Chileonce an infamous military dictatorshipfirmly toward a more open democracy. Chile joins a number of Latin American nations that have passed FOIA laws over the last decade, among them Mexico, Peru, and Uruguay, in an effort to create more government accountability and accessibility, and advance the public right-to-know. The principle of transparency, as the law itself states, “consists of respect and protection of the public nature of actions, resolutions, processes, and documents generated by government office [as well as] to facilitate public access for any person to this information.” While key observers in Chile have expressed concerns that the bureaucracy is not yet organized to preserve, locate, or release government documentation, officials there see a long-term, permanent change in the way the state will conduct itself. Over time, President Bachelet suggests, the transparency law will result in more efficient government because broader access to information will “restrict the space for irregularities, arbitrary action and corruption.”
Key Provisions
Law No. 20.285 contains several key components. First, it defines the broad categories of information that must be made public, much of it will be posted on websites of government agencies. Second, it lays out comprehensive procedures to be followed for state offices to respond, in a fixed period of time, to requests for information. Third, it identifies specific areas of information that can be exempted from public access; and finally it establishes a unique Transparency Council to monitor implementation of the law.
Among the key advances in the law is a broad definition of the type of government information that must be made readily accessible, on the Web, to Chilean citizens. Government agencies will now be obliged to post all budget information, regulations, decisions, functions, hiring, and even the salaries of all functionariesa provision that has caused consternation among some government workers. The law, as one of Chile’s leading advocacy groups, Chile Transparente, points out in a special overview, advances the “relevancy principle”that “all information generated by agencies of the state bureaucracy, in whatever format, date of creation, origin and classification,” should be presumed to be publicwith few exceptions that are specified by the law.
The law establishes the ability of Chileanas well as other citizensto request information and obliges a broad range of federal, provincial, municipal, and even semi-private businesses (in which the government has at least a 50 percent ownership) to respond. Agencies have twenty business days, with a possible ten-day extension, to respond by providing the requested information, or denying its release.
As under the United States’ FOI system, the Chilean law includes a series of exemptions that allow the Chilean government to withhold documentation. Exemptions include law enforcement and legal records; deliberative documentation; national security information; and other information that could damage the interests of the nation if released. There is also a privacy clause for records relating to individuals, and a “third party” clause. If third parties will be affected by the release of the documents, for example, those entities or individuals must be informed by the state within two days of the receipt of the petition; then the third party has three days to respond with an objection to release the information. Third party information will be deleted if such an objection is made.
And similar to the US FOIA, Chile’s new law sets up an appeal process if requesters believe the documentation has been inappropriately withheld. But the system itself, an autonomous “transparency council,” is quite different from US procedures.
The Transparency Council
Indeed, the most significant aspect of the new law is the establishment of a Consejo de Transparenciaa four-member watchdog council that will oversee implementation of the law, and rule on appeals. Since the law was signed last August, President Bachelet has appointed Juan Pablo Olmedo, a prominent Santiago lawyer and founder of Pro Acceso, Chile’s leading right-to-know advocacy group, as the President of the Consejo. He is joined by three other Consejo members picked from across Chile’s political spectrum: Roberto Guerrero, the Vice-Dean at the Law School at the Catholic University; Alejandro Ferreiro, a Christian Democrat and the former Minister of Economy, and Raul Urrutia, a constitutional law professor at the Catholic University in Valparaiso and a member of the conservative National Renewal party. All members of the Consejo were ratified by the Chilean Senate.
The Consejo has unique powers. It has a first-year budget of $3 million, giving it operational autonomy. It has the capacity to oversee implementation and the functioning of the law, as well as to act as a liaison between the government and the press and citizens on the issue of freedom of information. The Consejo will also serve as a court of appeals for citizens who believe that information has been unfairly withheld. And, the Consejo will have the ability to actually level a fine from 20 to 50 percent of their monthly salarieson officials who delay in responding to petitions or unfairly withhold information.
In an exclusive interview with freedominfo.org, Consejo President Juan Pablo Olmedo noted that establishing the council as a “regulatory entity” to oversee the process with independent decision-making powers constituted a major “innovation” in the law. “The Transparency Council is a permanent institution of the Republic,” he said, and it’s first “major mission is its integration into the national community.” In the coming weeks and months, the Consejo would work on “how the law is defined internally, the internal policies of institutional development,” and the Consejo’s “connections with other actors in our community.” The first major test for the new law, and the Consejo itself, according to Olmedo, would be “the resolution of [disputed] cases.”
Countdown to Implementation
In the eight months since the law was signed, the Consejo has been working with a special Presidential Comision de Probidad y Transparencia (Commision on Transparency and Probity) to ready the government bureaucracy for April 20th, when the law goes into effect. “We expect that the government and the bureaucracy are prepared to comply with the law,” states Olmedo. But as April 20th nears, other interested parties have expressed concern that, in fact, the government is not yet prepared. “The government is nowhere near ready for this law,” says Monica Gonzalez, one of Chile’s leading journalists and the director of CIPER-Chile, an online investigative newspaper. “They don’t know where the documents are.” In a major article on March 1, the leading newspaper La Tercera, reported on the problems with technology, inadequate preparation time, disorganization of records management, and resistance in government agencies to divulging individual salaries that are complicating the governments preparations to respond to the law when it goes into effect.
According to Moises Sanchez, the director of Pro Acceso, the government has “been absent from the public debate over the implementation of the new law.” The law was dictated, he told freedominfo.org, “and then came silence.” Sanchez points out that the law is being implemented during an election year, and politics will play a role in how the law is implemented and how it is used for political advantage.
One key constituency for the new law is human rights victims and their families. But it remains to be seen how much documentation on repression from the Pinochet era will become available. The files of the secret police, DINA, have long been hidden or destroyed; the military has repeatedly claimed it is unable to locate records relating to torture, disappearances, and killing during the dictatorship. Elizabeth Lira, one of Chile’s leading political sociologists and director of the Centro De Etica at the Alberto Hurtado University in Santiago, points out that the archives compiled by the Truth Commission, the Torture Commission and the Reparations Commission appear to be classified as nonpublic records; some of them are sealed for up to 50 years. Still, as Lira noted, “the existence of the law, and the use of the law will at least enable [victims] to identify documents and address the difficulties in obtaining them.” One form of secrecy, she points out, is for the state not to maintain organized archives. The new law will change that because “the foremost consequence of the law will be that public agencies are now required to organize their information to be able to respond to petitions for its release.”
In Chile, the advent of the new transparency law is seen as only first step toward openness and accountabilityalbeit a significant first step. Over the next year, Juan Pablo Olmedo suggests, Chile has an opportunity to establish itself as a point of reference for other countries advancing the right-to-know. “The question that is going to be asked is: if through a constitutional process, with reasonable but not abundant resources, and in a place strongly committed to cultural changes, in what manner can countries achieve the implementation of practices that defend the right to information and transparency?” That, he says, “is the challenge that [we] now face.”
Perfiles / Profiles
Members of Chile’s Consejo de Transparencia (Transparency Council). From left to right, Raúl Urrutia, Roberto Guerrero, Juan Pablo Olmedo, Alejandro Ferreiro.
Juan Pablo Olmedo tiene 40 aos, es abogado y ex presidente de la ONG Pro Acceso que ha luchado para que exista mayor transparencia y acceso a la informacin pblica. Es Magster en derecho Internacional de los Derechos Humanos de la Universidad de Essex, Inglaterra y particip en el grupo de apoyo tcnico legislativo al Proyecto de Ley de Transparencia y Acceso a la Informacin Pblica. Es Presidente del Consejo para la Transparencia (18 meses).
Juan Pablo Olmedo (40 years old) is a lawyer and former president of Pro Access, an NGO that works on issues related to transparency and access to public information. He recently participated in the technical legislative support for the Transparency and Access to Public Information Bill. Olmedo has a master’s degree in International Human Rights Law from the University of Essex, England. For eighteen months, he will serve as President of the Consejo de Transparencia.
Roberto Guerrero tiene 41 años, es profesor de la Universidad Católica y Vice-Decano de la Facultad de Derecho de esa misma casa de estudios. Es Master en jurisprudencia comparada de la Escuela de Leyes de la Universidad de Nueva York y se ha desempeñado como mediador del Centro de Arbitrajes y Mediaciones de la Cámara de Comercio de Santiago y director del Programa de Magíster en Derecho de la Empresa de la Facultad de Derecho de la Universidad Católica.
Roberto Guerrero (41 years old) is a Professor and the Vice-Dean of the Law School at Universidad Católica where he also serves as the Director of the Master’s Program in Business Law. He has served as a mediator at the Arbitration and Mediation Center of the Santiago Chamber of Commerce. He graduated with a master’s degree in Comparative Jurisprudence from the New York University Law School.
Alejandro Ferreiro de 42 años, es abogado y fue Ministro de Economía durante la administración de Michelle Bachelet. También se desempeñó como Superintendente de Isapres y Superintendente de AFP.
Alejandro Ferreiro (42 years old) is a lawyer and former Minister of Economy under President Michelle Bachelet. He has been a consultant in health insurance regulation and of pension systems for international organizations.
Raúl Urrutia tiene 58 años, es abogado egresado de la Universidad Católica de Valparaíso, casa de estudios en la que imparte clases de Derecho Constitucional y Teoría Política. Fue diputado en representación del distrito de Viña del Mar y Concón entre 1990 y 1998.
Raúl Urrutia (58 years old) is a lawyer who graduated from Universidad Católica de Valparaíso in Chile, where he currently teaches Constitutional Law and Political Theory. He was the deputy representative for the district of Viña del Mar and Concón between 1990 and 1998.
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