Chilean Senate Advances Access Law Amendments

10 October 2013

The Senate in Chile has moved toward the adoption of amendments to the law on access to public information, according to media reports and the Pro Accesso advocacy group.

The amendments would restrict access to official e-mails, critics say. The bill also touches on many procedural elements of the current law.

The House has not approved the bill yet.

On Oct. 1, the Senate approved the bill (Number 7686-07) during the General Discussion on a 21-2 vote. (The Senate version voted on is not yet posted.)

Senators have until Nov. 18 to make observations on the bill before final approval, the last step.  The bill already was passed by the Chamber of Deputies.

E-mail Access Provision Criticized

The most discussed subject has been proposed standards for access to officials’ e-mails. Such access would be allowed only for e-mail domain that belong to the public institution and when the information concerns final decisions.

These restrictions are considered misleading and excessive to critics.  One wrote FreedomInfo.org, “This is a serious constraint to access public information that may be relevant to accountability.”

In addition, the person requesting the public information in e-mails would have to prove that the information itself is of public interest, not a condition in the law now.

Many Other Changes

The bill would change many other aspects of the law of access to information. It would:

–         Require more proactive transparency. According to the bill, persons holding public office must publish information about their salary and a declaration of their assets and interests on the public office’s website. Authorities must also publish an index for secret or reserved documents. Provision is made to allow the Transparency Council to approve alternative means of disclosure if the material affects third parties or isn’t of public interest.

–         Provide for more time to notify third parties about the potential release of documents concerning them. If the rights of third parties are being affected by the access of public information, they must be notified by the administrative organisms in a time span of five days and the time span for the third parties to act in the procedure would be of 10 days (current law gives them 2 and 3 days respectively).

–         Provide that classified documents concerning national security would be released after 20 years, although extensions are possible. For classified information, the time limit for confidentiality would be five years, with a potential extension of five more years. In the case of sensitive information, such as that related to foreign defense, the automatic period would be 10 years that could extend to 10 more years in a successive and indefinite manner. Every resolution that declares that information is confidential can be reviewed to the Transparency Council.

–         Amend the complaints and appeals procedures to allow for requests to be refilled notwithstanding a negative Transparency Council ruling.

–         The time period to file a complaint to the Transparency Council will change from 15 days to 20 working days. The Transparency Council can use an alternative resolution mechanism and that if it fails, the information and evidence given in the procedure can’t be used for the regular procedure (established in Article 24).

–         In the complaint procedure, the bill introduces two recourses: the special reposition and the extraordinary recourse of the unification of the jurisprudence. The special reposition is applicable against resolutions from the Transparency Council that reject the access of information based on a factual mistake or error that is determinant to the case, or when there is an essential background for the case and that it has been ignored. The extraordinary recourse of the unification of the jurisprudence is applicable against the sentence from the Court of Appeals that resolves the illegality recourse when the subject has different interpretations in one or more sentences. The extraordinary recourse is resolved by the Supreme Court, and its objective is to have reassurance about the application of the law on access of public information law.

–         Expands the grounds for applying sanctions for noncompliance by government agencies and clarifies how the fines are to be assessed. The type of sanctions that can be applied to those who deny public information has increased. In the bill, sanctions include censure, fines and suspension from office. The fine can reach up to 50% of the monthly wage of the offender. Also the Transparency Council has the discretion to change the sanction. (The current  law only has the fine as a sanction)

The Transparency Council has four Councilors who are designated by the President of the Republic of Chile, with the quorum of two-thirds of the Senate. They have six-year terms with the possibility of reappointment for another term.

The bill would require that a new councilor must be appointed 60 days before the incumbent ends his or her duties as a councilor.

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