Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Inter-American Court of Human Rights ruled that Chile violated the rights to freedom of expression, due process, and judicial protection by refusing the applicants’ request for State-held information without legal bases and without providing a justified decision in writing explaining the reasons for the refusal. It also concluded that Chile had failed its obligation to adopt domestic legal provisions to make effective the right to access State-held information.
Marcel Claude Reyes, as executive director of the Terram Foundation, had sent a letter to the Foreign Investment Committee requesting information of “public interest” with the purpose of exercising “social control” regarding the actions of State entities in relation to a project for the exploitation of Río Cóndor. The Committee complied with the request only partially and provided no justification in writing for denying access to the rest of the information that had been requested. Reiterations of the request and domestic judicial proceedings were unsuccessful in obtaining the release of the information or a written justification for its withholding. Thus the applicants filed a petition with the Inter-American Commission of Human Rights who then brought the case to the Inter-American Court of Human Rights.
The Inter-American Court reasoned that Chile had not proven that the restrictions imposed on the applicants’ right to access State-held information responded to a legitimate purpose because the responsible authority had failed to adopt a justified written decisions communicating the reasons for the restriction. In addition, that the restriction was not based in law as Chile did not have, at the time, legislation regulating restrictions on the right to access State-held information. The Court further reasoned that the rights to due process and judicial protection had been violated both, in the initial proceedings before the Committee and in the subsequent judicial proceedings since none of the decisions issued had complied with the essential guarantee of due justification.
Marcel Claude Reyes, Sebastián Cox Urrejola and Arturo Longton Guerrero, of the environmental organization Fundación Terram, brought a case against the Chilean Foreign Investment Committee for denying their request to state-held information on the Río Cóndor project, a forestry exploitation project with potential environmental impact. The applicants argued that the State failed to provide information of public interest without a valid justification, violating their right to access public information, and subsequently violated their rights to due process and judicial protection.
Marcel Claude Reyes is a Chilean economist and Executive Director of the Terram Foundation from 1997 to 2003. The Terram Foundation’s mission was to “promote the capacity of civil society to respond to public decisions on investments related to the use of natural resources and also ‘to play an active role in public debate and in the production of solid, scientific information […] on the sustainable development of [Chile]’.” [para. 57(12)].
On May 7, 1998, Claude Reyes, sent a letter to the Executive Vice President of the Foreign Investment Committee (FIC), explaining that the Terram Foundation wanted “to evaluate the commercial, economic and social aspects of the [Rio Condor] project.” [para. 57(13)]. Moreover, the organization requested the information in order to “assess its impact on the environment […] and exercise social control regarding the actions of the State entities that are or were involved in the development of the Río Cóndor exploitation project.” [para. 57(13)].
The mentioned Río Cóndor project was in reference to several contracts Chile signed with foreign investors, which included an initial investment of US$180,000,000. The first signed contract was on December 24, 1991 with Cetec Engineering Company (which would later change its name to Forestal Savia Limitada). The project “involved the development of a comprehensive forestry complex” and due to its potential negative impact on the environment, it generated public debate. [para. 57(7)].
Alleging information of public interest, Claude Reyes, requested the following information to the FIC: 1) Contracts signed between the State of Chile and the foreign investor concerning the Río Cóndor Project; 2) Identity of the foreign and national investors involved in said project; 3) Background information from Chile and abroad that the FIC had before it, “which ensured the soundness and suitability of the investors”; 4) Total amount of investment authorized for the Río Cóndor Project; 5) Capital effectively imported into the country to date; 6) Information in the hands of the FIC regarding “control of the obligations undertaken by the foreign investors or the companies in which they are involved and whether the FIC is aware of any infraction or offense”; and 7) any information on whether the Executive Vice President of the FIC has requested the reports and information required to comply with the FIC’s purposes.” [para. 57(13)].
On May 19, 1998, the Executive Vice President of the FIC met with Claude Reyes and with Deputy Arturo Longton Guerrero and only handed them “the name of the investor, the company name, and the amount of capital he had asked to import into the country”. [para. 57(14)]. On June 3 and July 2, 1998, Claude Reyes sent two additional letters to the Executive Vice President of the FIC “in which he reiterated his request for information, based on ‘the obligation of transparency to which State agents are subject and the right of access to public information established in the State’s Constitution and in the international treaties signed and ratified by Chile’.” [para. 57(16)].
The Executive Vice President of the FIC did not submit the majority of the requested information.
Later, on July 27, 1998, Claude Reyes in representation of the Terram Foundation, along with Sebastián Cox Urrejola (also representing the non-governmental organization, FORJA) and Longton Guerrero as Deputy of the Republic of Chile, filed an application for protection of the constitutional rights before the Santiago Court of Appeals. The claimants argued that the state had violated their right to freedom of expression and access to state-held information, guaranteed by article 19(2) of the Chilean Constitution in relation to Article 5(2) thereof; Article 13(1) of the American Convention, and Article 19(2) of the International Covenant on Civil and Political Rights.
The claimants also requested to the Court to order the FIC to respond to their information inquiry and make available said information as soon as possible. In their application, the claimants did not refer to the conversation they held with the Executive Vice President of the FIC.
On July 28, 1998, the Santiago Court of Appeals denied the application and declared it inadmissible, as the facts and background information attached to the application were not sufficient. The claimants, then, filed an appeal for reconsideration before the Santiago Court of Appeals alleging that the court’s ruling did not contain a detailed justification in order to deny the claimants’ application. The claimants also filed a remedy of complaint before the Supreme Court. However, the remedy was ultimately denied because of inadmissibility. Moreover, the Santiago Court of Appeals affirmed its decision and determined that the claimants’ request for reconsideration was inadmissible.
On December 17, 1998, the claimants submitted a petition to the Inter-American Commission of Human Rights. Later, on July 8, 2005, the Commission referred the case to the Inter-American Court of Human Rights, after it concluded that Chile had violated articles 13 (freedom of expression) and article 25 (right to judicial protection) in relation to article 1.1 and 2 of the American Convention of Human Rights.
The IACtHR had to decide whether Chile, in refusing the applicants’ request for access to State-held information had violated their right to freedom of expression. Likewise whether the guarantees of due process and the right to judicial protection had been violated during the administrative and judicial proceedings initiated by the applicants in pursuit of access to such information.
The IACHR argued that Chile’s actions had violated the human rights of the applicants placing emphasis on the importance of the right to access State-held information as a tool to promote accountability and transparency within the state and prevent abuses from government officials. In the view of the IACHR, Chile had “ not guarantee[d] the right of the [alleged] victims of access to information because a State entity refused access to information without proving that it was included in one of the legitimate exceptions to the general rule of disclosure established in Article 13. Also, when the facts that gave rise to this application occurred, the State did not have mechanisms to ensure the right of access to information effectively” [para 58]. Similar arguments were raised the representatives of the applicants.
The representatives of the State argued in its defense that the Foreign Investment Committee did not have the information that had been requested by the applicants, that some of the information requested was confidential as the interests of the private investors could be hurt by its disclosure, that the Foreign Investment Committee had actually provided most of the information requested by the applicants after their initial request, and that Chile had already adapted its legislation on right to access to information in accordance with the recommendations made by the IACHR.
The IACtHR started its analysis by acknowledging that the information whose disclosure had been refused was indeed of public interests as it concerned a contract between the State and two foreign companies. The Court then proceeded to explain that the right to access State-held information is protected by the right to freedom of expression as defined in article 13 of the ACHR, stating that: “by expressly stipulating the right to “seek” and “receive” “information,” Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case”. [para. 77]
The Court also made reference to the societal importance of the right to access State-held information noting that: “Access to State-held information of public interest can permit participation in public administration through the social control that can be exercised through such access” and that “for the individual to be able to exercise democratic control, the State must guarantee access to the information of public interest that it holds”. [paras. 86 and 87]
Following these general considerations, the Court examined whether the restrictions imposed by Chile on the applicants’ right to access to information were compatible with that State’s obligations under the ACHR. In this respect, the Court noted that in order for any restrictions on this right to be valid under the ACHR they must: (1) be “established by law”; (2) respond to one of the purposes allowed by the ACHR, this being “respect for the rights or reputations of others” or “the protection of national security, public order, or public health or morals”; and (3) be “necessary in a democratic society”. [paras 89-91]
The Court also noted that “it is essential that the State authorities are governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a limited system of exceptions”. [para. 92]
The Court concluded that the restrictions applied by Chile had not been based on law as Chile did not have, at the time, laws regulating restrictions on the access to State-held information. Further, that Chile “did not prove that the restriction responded to a purpose allowed by the American Convention, or that it was necessary in a democratic society, because the authority responsible for responding to the request for information did not adopt a justified decision in writing, communicating the reasons for restricting access to this information in the specific case”. [paras. 94-95]
With respect to Chile’s obligation to adopt domestic provisions to make effective the right to access to information, the Court concluded that, even though Chile had since improved its legislation on this area, it had failed this obligation in detriment of the applicants as the new legislation had not been in force at the time their request for information was refused.
Finally, the Court addressed the possible violations to the rights to due process and judicial protection. In this relation, it noted that the guarantees of due process should be observed not only in judicial proceedings but also in administrative proceedings such as the applicants’ request of information to the Foreign Information Committee. It concluded that due process had been violated in these administrative proceedings because “the State’s administrative authority responsible for taking a decision on the request for information did not adopt a duly justified written decision, which would have provided information regarding the reasons and norms on which he based his decision not to disclose part of the information in this specific case and established whether this restriction was compatible with the parameters embodied in the Convention. Hence, this decision was arbitrary and did not comply with the guarantee that it should be duly justified protected by Article 8(1) of the Convention”. [para. 122]
As to the right to judicial protection, the Court noted: “When State-held information is refused, the State must guarantee that there is a simple, prompt and effective recourse that permits determining whether there has been a violation of the right of the person requesting information and, if applicable, that the corresponding body is ordered to disclose the information” [para. 137]. Even though the applicants had the opportunity to attempt judicial remedies, the Court concluded that the recourse had not been effective as the applicants’ had not received a duly justified decision as required by article 8(1) of the ACHR.
For all of the above, the Court concluded unanimously that Chile had violated articles 13 (freedom of expression), 1(1) (general obligation to respect rights) and 2 (obligation to adopt domestic provisions to make rights effective) of the ACHR due to the denial of information. Also unanimously, that Chile had violated articles 8(1) (due process) and 25 (judicial protection) in the judicial proceedings. Finally, by four votes to two, that Chile had violated article 8(1) (due process) in the administrative proceedings before the Foreign Investment Committee.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to access information, accentuating the state’s duty to provide information and the principle of maximum disclosure of information by the state.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Nos. 428, 582.
(J. García-Ramirez, concurring).
(discussing Arts. 27(2), 25 and 8 American Convention on Human Rights).
§ 83, ECHR 2001-VIII.
§ 26, ECHR 1999-I.
Case significance refers to how influential the case is and how its significance changes over time.
The decisions of the Inter-American Court of Human Rights are binding on each respective State and establish international standards that national courts of States parties to the American Convention on Human Rights must follow in similar cases
Victorian Civil and Administrative Tribunal, March 16, 2010,  VCAT 255.
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