Case Summary and Outcome

The Transparency Council of Chile ordered the Undersecretary of Public Health of Chile to deliver all the records in its possession regarding the list of attendees at the work meetings of the “COVID Table”—a scientific and consulting body whose mission was to discuss and implement measures, strategies, regulations, and public policies against Covid-19—, including the matters there discussed, the agreements adopted, and their criteria. The Medical Association of Chile (A.G.) lodged an access to information request to the Undersecretary of Public Health, requiring the aforementioned information about the “Covid Table.” The Undersecretary replied to the request by stating that the “COVID Table” did not officially exist and therefore could not provide the information. The Transparency Council held that the required information was of public interest since it was about the work carried out by a scientific and technical advisory body that performed public functions, as its main purpose was to discuss and coordinate public policies and regulations against the Covid-19 pandemic. Therefore, it ordered the delivery of all the information requested by the Medical Association of Chile.

Facts

On April 3rd, 2021, the Medical Association of Chile (A.G.) submitted an access to information request before Chile’s Undersecretary of Public Health to access all the records in its possession regarding the list of attendees at the work meetings of the “COVID Table”—a scientific and consulting body whose goals was to discuss and implement measures, strategies, regulations, and public policies against Covid-19—, including the matters there discussed, the agreements adopted, and their criteria.

On May 14, 2021, the Undersecretary of Public Health responded to said request indicating that the “Covid Table,” which the request referred to, was a denomination or expression used by different authorities of the state and the media to allude to an instance of interministerial collaborative work in the field of the health emergency, which does not have a pre-established act of creation, naming its members, or regulating the way and frequency in which it worked. 

In addition, given its unregulated operation, the Undersecretary argued it was impossible to determine its members or disclose its files, agreements, and contracts because they do not exist. 

Nonetheless, the Undersecretary said that different high-level public officials in the public healthcare sector had participated in different regulatory instances, thus confirming the existence of a technical advisory body, made up of public officials from different ministries.

On June 2, 2021, the Medical Association of Chile (A.G.) lodged an acción de amparo before the Transparency Council of Chile, arguing that its right of access to information had been breached by the Undersecretary’s answer.

Decision Overview

The Transparency Council of Chile had to decide whether the Chilean Undersecretary of Public Health’s answer, denying access to information about the members and work of the “Covid Table” —under the argument that it did not technically exist—was a sufficiently justified response.

The Council began by highlighting article 8, paragraph 2 of the Political Constitution of the Republic of Chile, which established that “the acts and resolutions of the organs of the state, as well as their basis and the procedures followed, are public.” [p. 2].  

However, in this specific case, as the Council noted, the requested information presumably did not exist. Nevertheless, for the Council—following the precedent set by itself in cases C1179-11, C1163-11, and C409-13—the non-existence of requested information is a factual circumstance whose mere invocation does not exempt authorities from their obligation to deliver it. 

To further this point, the Council cited numeral 2.3 of General Instruction No. 10 issued by the Transparency Council of Chile. According to this regulation, when information is deemed inexistent, public authorities have a duty to communicate if it has been expunged from a particular record, or—if that’s not the case—to exhaust all the means at its disposal to find the information. If the information is not available at all, this circumstance must be informed to the requester, explaining in detail the reasons that justify it. 

In light of this legal framework, the Council concluded that the non-existence of the requested information was not proven in a reliable manner by the Undersecretary.  It also held that there was a prevailing public interest in the requested information—which would allow the public to know the reasons underlying the adoption of sanitary measures to control the Covid-19 pandemic.

The Council concluded that if all or part of the requested information was not in the possession of the Undersecretariat of Public Health, said circumstance should have been communicated to the claimant and to the Council, attaching the pertinent search certificates, and providing a detailed account of the reasons that underlie the negative response to the access to information request.

Taking this into consideration, the Transparency Council held that the Undersecretary’s response breached the plaintiff’s right of access to information. Thus, the Council ordered the delivery of all the documents requested by the plaintiff within 10 working days.