Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The National Council for Transparency of Chile rejected the amparo action filed by Ms. Javiera Campos against the National Human Rights Institute (INDH) to obtain information on the Valech Commissions’ database —officially known as The National Commission on Political Imprisonment and Torture Report— for statistical purposes. Consequently, the body confirmed the INDH’s decision refusing to provide the information due to the presence of personal and sensitive data in the context of the requested information. For the Council, this entailed a violation to the protection of personal data of the more than 38,000 victims registered in the database, since the required information concerned data about the physical and mental health of victims and the way the state affected them.
In December 2019, Ms. Javiera Campos submitted an access to information request to the National Human Rights Institute (INDH). Through it, she requested a “digital copy in Excel format of the Valech Database, deleting any personal and sensitive data” for statistical purposes, and that the delivery of the information be disaggregated. The Valech Commission —officially known as The National Commission on Political Imprisonment and Torture Report— is in charge of reporting on the abuses of the Chilean government during the period of military dictatorship.
On January 2020, the INDH responded to the request by denying access to the information “due to the existence of grounds for confidentiality, as established in Article 21, paragraphs 2 and 5 of the Transparency Law, whose content deals with the limitations to the right of access to public information and the grounds for confidentiality and information denial”.
After her request was denied, Ms. Javiera Campos filed an amparo action against the INDH, in which she said that “[…] she requested a database of information from the Valech Commissions, in a disaggregated and anonymized form, [to] respect the provisions of Law No. 19628”. Campos also argued that she requested information “that the Commissioners prepared [as a working tool], not the testimonies of the aforementioned Commissions […].” Thus, for Campos, the required information was not under the scope of Law No. 19,992.
The Council for Transparency of Chile rejected the action lodged by Mrs. Javiera Campos and consequently determined that the decision to deny access to the requested information, issued by the National Institute of Human Rights, was consistent with the Transparency Law of this body, and the constitutional standards for the protection of personal data.
In the present case, the National Council on Transparency of Chile had to determine if the rejection of the access to information request, submitted by Ms. Javiera Campos —requiring a digital copy of the Valech database for statistical purposes—, was justified under the national legislation on access to public information. In this sense, this body weighed the state obligations regarding the protection of the personal data of the victims who contributed to the National Commission on Political Imprisonment and Torture and the applicant’s right to access public information.
First, the Council pointed out that Article 15 of Law No. 19,992 establishes the confidentiality of “the documents, testimonies and background information provided by the victims to the National Commission on Political Imprisonment and Torture […] In any case, this secrecy does not extend to the report prepared by the Commission based on such information.” Likewise, subsection 3, paragraph 3, of transitory Article 3 of Law No. 20,405, provides that “all the actions carried out by the Commission, as well as all the background information it receives, shall be confidential for all purposes”.
In light of this legal framework, the Council directed its attention to the question of whether the delivery of the requested information affected the fundamental rights of the victim, as enshrined in the Political Constitution, and in relation to Article 1. 21 and 1 (transitory) of the Transparency Law —which establishes that information can be classified under certain circumstances, such as when the disclosure of information unjustly affects the privacy of others.
In line with the above, the Council stated that “the INDH has consistently and properly argued how the publication of the information referred to the database affects the rights of individuals, [since] it includes personal and sensitive contextual data of more than 38,000 people, which account for those persons qualified and not qualified as Disappeared Detainees, Political Assassinations, Victims of Political Imprisonment and Torture.”
The Council, according to its criteria, considered that the denial of access to information requests, had to be properly justified on the basis that the affectation to the fundamental rights enshrined in Article 1.21 of the Transparency Law “[…] must be present or probable and with sufficient specificity to justify the reserve”. This reserve must not be presumed but rather “accredited by the requested administrative body, so that the damages that the publicity would cause are deemed greater than the damage that the secrecy would cause to the free access to the information and the general principle of publicity.”
In this case, the Council argued that these requirements were met.
To further its analysis, the Council mentioned that Article 2, paragraph m of Law No. 19,628 must be taken into consideration. This provision defines a data bank as “an organized set of personal data, whether automated or not and whatever the form or modality of its creation or organization, which allows cross-checking the data elements with each other, as well as carrying out any type of data processing.”
The Council considered that it must be noted that the information requested in this case included information related to unlawful arrests, the physical and mental health of the victims, and how these conditions were affected by state agents. The Council argued that this data was particularly sensitive in nature and regarded the private life of natural persons, which is, in turn, protected by the aforementioned legislation and cannot be provided to third parties under any circumstances.
Finally, taking into consideration the legislation outlined above, the Council for Transparency of Chile rejected the action of amparo and, consequently, upheld the decision of the National Institute of Human Rights denying access to the information previously mentioned.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression, as it limits the right of access to public information by classifying as confidential the data contained in the Valech database on victims of torture, forced disappearances, among other crimes, even if they are used for statistical purposes and the necessary measures are taken to remove the personal or private information included there. The extent to which the privacy of the victims is protected might contravene international standards on access to information, as set by the IACtHR, which seeks to foster transparency and accountability in matters of public and historic relevance.
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