By Dolores Lavelle Cobo

Lavalle-Cobo is an Argentine lawyer, member of Centro para la Información Ciudadana (Center for Citizen´s Information)  and author of books and articles.

The right of access to public information as a fundamental right is not an absolute one. Its exercise has specific limitations. Nevertheless, in its implementation and application to concrete cases, the principle of maximum information openness must be privileged.

Authors consider that in case of an information request an exception to  its disclosure should be applied with a strict criteria and therefore a burden lies on the requested authority that has to demonstrate the measure of the damage publicity could cause. The mere invocation of a possible damage is not enough to deny the requested information.[2]

I. THE FACTS

In November 2011, Romina Colman, Argentine, and thus, considered a foreigner for the Chilean law, requested certain information to Chile´s Ministry of Foreign Affairs.

Ms. Colman requested the names and surnames of the lawyers that represented the Chilean government before The Hague International Court of Justice in the maritime conflict against Peru and the fees received by them, between January 2010 and October 2011.

The result was not satisfactory, because the State and the National Direction of Frontiers and Boundaries – an organization dependent from the Ministry of Foreign Affairs – denied the request, issuing a decision alleging that the disclosure of the information had a “direct relation with the persons that had intervened in the preparation of reports, drafting documents and have participated in the proceedings in the process labeled by the International Court of Justice as “Maritime Dispute” (Peru v. Chile)….which is still undergoing”.[3]

It alleged that the dispute was to be directed by international law rules, and in particular considered The Hague International Justice Court Statute and its implementation. These regulations establish that all written pieces of the process presented for the tribunal´s knowledge must be kept under secret, including the agreements with national and foreign legal advisors dedicated to the country´s interest protection and the defense of controversies from a state before the International Court. Said arguments motivated the denial and the secret, which will last until the judicial process ends.

The rejection motivated Ms. Colman to present an administrative action named “amparo” in December 2011 before Chile´s Transparency Council, an autonomous organism in charge of conflict resolution in access to information matters. The Council admitted the action.

II.- THE PARTIES POSITIONS

1. a.       The Ministry of Foreign Affairs

The Ministry claimed the application of paragraph 3°, article 42 of the International Court of Justice Statute, which establishes “the agents, counselors and lawyers of the parts before the Court will enjoy the needed privileges and immunities for the free development of their duties”. Under this article, the privilege of the names requested by the solicitor must be kept secret, due to their relation with document preparation vital to promote the judicial process. Also, said documents have a stretch relation with the defense of sovereignty, territorial and maritime jurisdiction and its international boundaries.

On the other hand, the Chilean Transparency Law also establishes some exception cases to information disclosure. Among them, the Ministry highlights article 21, N° 1, letter a) and N° 4. These establish the secret when “the disclosure, communication or knowledge affects the fulfillment of the functions of the requested organism, in particular if it undermines the prevention, investigation or prosecution of a crime, a simple felony o when it deals with the necessary precedents of legal defenses”. And, “when its disclosure, communication or knowledge affects the national interest, especially if it refers to the country´s international relations”.

Moreover, the Ministry mentioned the Law 19.886 on Administrative Contracts for Supply and Services Provisions, which introduces an exception to the duty of publishing those contracts that qualify as secret, reserved or confidential (art. 20, Law 19.886) because they deal with issues related to sovereignty defense, territorial integrity and State boundaries. Thus, the services rendered by the legal advisors to the Chilean State are protected and kept secret, and in this particular case the protection applies to those advisors hired by the Ministry of Foreign Affairs or the National Direction of Frontiers and Boundaries.

Finally, it emphasizes that disclosing said information would put Chile in an unbalanced situation with respect to the State or country against to whom the conflict is being settled, turning Chile´s defense fragile before the International Court, because a main aspect of the strategy’s defense in the case would be known.

1. b.       The plaintiff

             Ms. Colman based her claim on different arguments. She declared that the damage caused by disclosing the requested information alleged by the Ministry of Foreign Affairs, had not been proved in the rejecting decision and stated that it was necessary to demonstrate the effective damage to the public interest under protection would suffer, in this case Chile´s national sovereignty.

Moreover, she indicated that previously, the Ministry of Foreign Affairs had published in its own web page information related to the lawyers that represented Chile in the “Maritime Dispute” before The Hague Court. In the links provided by the plaintiff at least 16 lawyers´ names were mentioned as well as the name of an important foreign international law firm, including pictures of meetings held in Paris between public officers and the legal team. This showed that the information had already been disclosed, and thus, enjoyed in part (fees were not disclosed) of public nature, which contradicted the legal arguments raised by the Ministry of Foreign Affairs.

III.- THE TRANSPARENCY COUNCIL´ RESOLUTION

In a unanimous ruling the Transparency Council decided to accept Colman´s action –amparo- and ordered the Ministry of Foreign Affairs to render the requested information.

Before raising the arguments of its decision, the Council set the criteria under which will judge the case and stated that the application of an exception to the right of access to public information must be interpreted with a strict focus; thus, the mere fact that a public organism has a pending process does not imply that every document produced in that context have to be secret. For that, “must have a direct relation between the requested document or information and the pursued trial”.[4]

The Council´s arguments:

• ?       The information requested was not directly related to the essence of the dispute with Peru held before The Hague Court; nor was it related to other documentation that dealt with the legal strategy, the defense, legal opinions or other work performed by the legal team of advisors representing Chile.
• ?       The Council also concluded that the Ministry of Foreign Affairs had powers to apply an exception only if the disclosure of information could affect the due development of a public institution, situation that did not took place in the case under analysis.
• ?       It was under public knowledge that the “Maritime Dispute” written phase was over and that The Hague Court had open the oral stage, and the defences´ hearings should take place in December 2012, which its documents had been presented by the parts of the dispute. The Council also applied article 43, paragraph 4° of the Court´s Statute which establishes that “every document presented by one of the parts will be communicated to the other through a certified copy”. The document presentation implies that the opposing part in the conflict -in the case, Peru- has notice of the names and surnames of the lawyers representing Chile before The Hague Court, and thus, the compliance with the Statute clause (information being kept secret) at this time makes it difficult to be used as an argument in favor of a damage caused to the interests of Chile.
• ?       The Council also indicated that the alleged damage by the Ministry of Foreign Affairs should have been effectively proven, and not be just a mere allegation.
• ?       On other hand, the Council pointed out that the hiring secrecy ruled under the 19.886 Law makes reference to the source and method of hiring and that it must be analized whether the disclosure -in particular, the agreed fees amount- means an effective affectation to the public interests cited by Chile: “the due compliance of said organisms, the right of the persons involved, the national security or the national interest”.[5] In this sense, it highlighted that the requested information, the names and surnames as well as the fees agreed do not deal directly with the object of the dispute before The Hague Court, and that under the Council´s criteria its disclosure do not mean a damage to the judicial strategy and the Chilean interests defense in the trial. It ordered the submission to the plaintiff of the requested information.

The Council´s decision was appealed before the Court of Appeals of Santiago on July the 5th, 2012.

IV.  ANALYSIS AND CONCLUSIONS

There are no doubts that the culture of information openness and transparency is a hard process which requires time to take deep root not only in the civil society but also inside the public institutions.

Among the aspects to bear in mind and emphasize in the Transparency Council´s ruling was the striking unanimity of their vote. All the Counselors agreed that the information requested by Ms. Colman is of public nature. The publicity of the information lies not only in the fact that it could be known by everybody, but also that is everybody´s property because it has been produced with public funds, and that no exception can be applied in the case.

Besides, the Council´s criteria to interpret when an exception is applicable has to be pointed out. The Council indicated that said criteria must be used in the most strict way possible, taking into account that the principle of maximum openness is the one that rules. In particular, regarding public interests -those that “identify determined values and goods that have the characteristic to be common to a whole society, which is organized under a democracy and its legal system has recognized it, and the will of its effective fulfillment through the public powers”[6] -for example, sovereignty defense, national security and international relations, the practice of document secrecy is much more widespread than with respect to other exceptions. When we say “widespread” we try to explain that a public agency has a tendency to watch over the totality of the collection of documents, even though there might be some that not need to be kept secret.

On the other hand, although the exception cited by the Ministry of Foreign Affairs had all the necessary characteristics to be accepted – legality, reasonableness and temporariness – it is clear that they were not enough to have priority over the principle of maximum openness. The argument of the application of international law (The Hague´s International Court of Justice Statute) was rejected by the Council, as well as the arguments based on other Chilean laws. Which most calls the attention is the Ministry´s oversight of the publicity previously done on its web page. The Council´s ruling provides the links with the proof that the legal advisors´ names and surnames hired to represent Chile before The Hague Court, and thus public. So, the reluctant behaviour of the Ministry of Foreign Affairs produces in this aspect, at least some suspicion. Why insist in keeping that information secret?

Moreover, at the moment the Council issued its ruling, the written phase of the international conflict was over; both parts had presented the pleadings and thus, were both in notice of the opposite party´s position. Here it´s possible to infer that part of the information requested -names and surnames of legal advisors- had already being made public by Chile.

Nevertheless, the most important argument is the Council´s statement is that the disclosure of the information regarding the names and surnames of the legal advisors as well as the fees paid to them does not produce any damage or loss at all to the defense of the Chilean interests in the maritime dispute, and thus, must be released. Moreover, after the Ministry of Foreign Affairs did not prove the measure of the supposed damage its disclosure could bring.

V. WHAT´S NEXT?

The case under analysis brought the attention of the press and raised some controversy in the social media particularly in blogs and Twitter. Issues as the nationality of the requester and the reasons about why information was to be released to a foreign person was put under question. Haven´t we moved forward in Latin America in understanding that the access to information is a universal and human right?

There was also an alert about a possible weakening of the Transparency Council due to the appeal by the Government. Could an appeal be enough to turn an institution fragile? It must be said that with the new administration in Chile many of the Council´s decision are undergoing an appeal before the Courts of Justice.

Or perhaps the Council was fragile before because transparency has lost political support? It could be argued that turning the Council weak and to shift Chile´s track record in transparency into a more locked one could be the new policy of the current administration. 

The Chilean Council will fight for its power. The continuous appeals to the Councils´ rulings with the supposed purpose to take away its power is a situation the Council is well aware of; nevertheless it decided to rule in favor of information openness and according to the law. As the Council´s President declared “We prefer to be uncomfortable rather than being irrelevant”.

It is clear that the Chilean society burdens the major loss. Information itself was never a subject of discussion, neither from the media or the Chilean NGO´s – silent with respect to this case –  showing that the focus of the debate was somewhere else and moved to other issues not related to the centre of the claim (amparo): the publicity of the information, which was only questioned by the Foreign Relations Ministry.

Latin American must be alert to the issue that an adequate regulatory and institutional scheme is not enough to guarantee the development of the right of access to information. The case under comment must warn us about the hard work we have ahead with civil society, public agencies and other stakeholders related to these matter -academics, professional councils, schools, corporations, etc- to keep up building the knowledge and exercise of this right and its benefits.

Information is power. Power given to the people to make better decisions; exercise our rights; improve our quality of life or simply put into practice our right to know. Let´s keep working to enhance its development.

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Tags: case study, rti litigation

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