Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Transparency Council of Chile ordered the Undersecretary of Higher Education to deliver information about the professors hired in the careers of commercial engineering, law, and industrial engineering, for the period between 2018-2021, in all Chilean universities, including their names, universities where they work, academic degrees, and number of working hours at the university, among others. Citizen Roxana Chiappa Baros requested data regarding professors in all Chilean universities from the Undersecretary of Higher Education. The Undersecretary denied the request arguing that the information was confidential and that its publication would violate the rights of the individuals involved.
The Council held that there were no reasons to consider the information confidential. Furthermore, it argued the requested information was of public interest and that the data regarding professional degrees obtained in a university was not confidential, on the contrary, it was public by nature and its disclosure does not need authorization of the owner of the information. The Transparency Council established that before the delivery of the aforementioned information, any contextual personal data, such as address or e-mail, that may be included, must be redacted.
On August 3, 2021, Roxana Chiappa Baros requested the following information from the Chilean Undersecretary of Higher Education: the names of academics hired in all departments of commercial engineering, law, and industrial engineering, of all Chilean universities; the university where they were hired; the department where they work; academic degree (bachelor’s, master’s, or doctorate); and the number of working hours assigned at the university.
Chiappa Baros mentioned that in the case the information could not be delivered in the requested format, she would appreciate meeting with an analyst from the higher education information service to understand the data’s architecture
On August 2, 2021, the Undersecretary of Higher Education notified the requesting party that, after reviewing the request, it considered that the application was not clear enough. The Undersecretary asked Chiappa Baros to specify the period, in years, for which the information should be sought.
Through an email on August 3, 2021, the petitioner specified that she needed information on the period between 2018-2021.
On August 26, 2021, the Undersecretary of Higher Education denied access to the information required by Chiappa Baros. According to it, pursuant to Article 21, No. 2, of the Transparency Law and Article 2, letter f, of Law No. 19.628 on Protection of Privacy, the Undersecretary concluded that the name of academics hired in all departments of economics, law, and industrial engineering of all Chilean universities were personal data. The Undersecretary also held that according to articles 4, 7, and 9 of Law No. 19.628, the personal data of the academic personnel, such as their names, had been collected from sources not accessible to the public and therefore its access, without the data owners’ authorization, would affect their right to privacy.
Furthermore, the Undersecretary stated that Article 20 of Law No. 20.285, requires authorities to notify third parties, whose rights can be affected by access to information requests, so they can oppose the delivery. The authority explained that it failed to comply with this requirement arguing that doing so would require notifying thousands of academics, from whom there was no contact information. Taking this into consideration, the Undersecretary denied access to the information and concluded that disclosing it would violate the right to privacy of many university professors.
On September 9, 2021, Mrs. Roxana Chiappa Baros filed an acción de amparo before the Transparency Council, alleging that her right of access to information was breached by the denial issued by the Undersecretary of Higher Education.
The Transparency Council of Chile had to decide whether the Undersecretary of Higher Education’s decision – denying access to information regarding the names of professors working in different departments in all Chilean universities, their degrees, number of working hours, among others— was properly justified on the grounds that such data was private.
The Council began by explaining that information regarding academic degrees —as it was stated in a previous decision issued by the Council (C2904-17) and in Decree No. 630/1981— must be in the Public Registry of Professionals, managed by the Ministry of Justice.
The Council referred to previous decisions it issued (C231-17 and C285-17) to highlight the importance, for the exercise of public oversight, of knowing who has obtained professional or technical degrees in the country. This, the Council noted, is key to assessing the veracity of those who claim to have any particular degree and meet the necessary conditions to practice their profession. Furthermore, the Council mentioned that article 213 of the Criminal Code criminalizes those who exercise certain professions, that require specific degrees, by pretending to have them.
In light of this, the Council considered that information regarding academic degrees or titles cannot be considered to be private or confidential since its disclosure is necessary for public oversight. Additionally, the Council mentioned that pursuant to article 4, subsection 5 of Law 19.628, access to information gathered in public databases about the profession of an individual or their degrees, does not require the authorization of the owner for its processing.
Subsequently, the Council mentioned the case law issued by the Court of Appeals of Santiago, in the case Rol 12.109-2016 from March 21, 2017. In this decision, the court ordered the delivery of information regarding the names of those who got degrees in commercial engineering from a Chilean university, and argued that data referring to professional degrees was not confidential.
The Council stated that the information requested by the plaintiff was of public interest since it concerned higher education and its accreditation process. For the Council, in the context of accreditation processes, the most valuable resource of a university it’s its academic and administrative personnel. As such, the information requested by the plaintiff, the Council noted, is all the more relevant because it allows for citizen oversight on a matter of public interest. In its decision, the Council also highlighted the fact that the requested information has been published by several higher education institutions due to its relevance in the process of choosing a university.
The Council considered that the Undersecretary failed to properly justify, with sufficient specificity, how disclosing the information requested would cause a present and probable harm to the third parties involved, as article 21, No. 1 of the Transparency Law demands. The Council deemed that the defendant had the burden of proving that sacrificing access to information, by denying the request, was less harmful than the potential damage that disclosing the information could have on other rights.
In light of this legal framework, the Transparency Council of Chile ordered the Undersecretary of Higher Education to deliver the information requested by the plaintiff. Prior to this delivery, the Council held, any contextual personal data that may be included in the requested documentation must be redacted, such as addresses, nationality, phone numbers, and email, among others.
Counselor Natalia González Bañados issued a dissenting vote. According to this counselor, access to information about professors working at private universities should have been denied. Although González considered that information about professors in public universities is public, she didn’t consider that the current legal framework applies to private higher education institutions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression as it guarantees access to government-held information of public interest. The Court, referring to multiple norms and local jurisprudence, underscored the importance of public oversight on higher education institutions. This fosters a positive environment for transparency and accountability within public and private institutions in the educational field.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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