Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Chilean Transparency Council (Consejo para la Transparencia, or CPLT) accepted a claim (amparo action) from the petitioner and held that the Civil Registrar’s Service (Servicio de Registro Civil e Identificación) should provide information regarding the amount of individuals who changed their sex and their names under the Gender Identity Law (Ley de Identidad de Género) in 2021, and indicate whether they were under or over 18 years old. The Civil Registrar’s Service had denied the information because it considered it was personal data whose disclosure would affect the right to privacy. It also held that it did not have the information and that it had no obligation to create a new database. The CPTL considered, firstly, that the statistical information requested by the petitioner could not be considered personal data because it did not identify any individuals, and secondly, that the Civil Registrar’s Service had the requested information according to its legal obligations. The CPLT ordered the Civil Registrar’s Service to provide the demanded data within 5 days.
On January 24, 2022, the petitioner, Mr. Kamil Hazbun Muñoz, requested information from the Civil Registrar’s Service regarding the number of individuals who had benefited from Law 21.120 -Gender Identity Law- and changed their names and sex in 2021, and whether they were minors (under 18 years old) or adults (over 18 years old).
On February 14, 2022, the Civil Registrar’s Service denied the requested information because it considered it was personal data whose disclosure would affect the right to privacy. Furthermore, it explained that it did not have the requested information and that it had no obligation to create a new database only because of the petitioner’s request.
On February 14, 2022, the petitioner filed a claim (amparo action) before the CPLT, arguing that he only requested the statistics and not confidential information from any particular individual. On March 11, 2021, the CPLT declared the case admissible.
There were two main issues before the CPLT: (i) whether the requested information should be regarded as confidential and (ii) whether the Civil Registrar’s Service had or should have the requested data.
The petitioner claimed that the Civil Registrar’s Service could not consider the requested information as private or confidential because he only requested the statistics and not data that could be used to identify any particular individual.
The Civil Registrar’s Service argued that the requested information consisted of sensitive and personal data that should be classified as confidential, in order to protect the people’s right to privacy. Furthermore, it claimed that it did not have the requested information by the petitioner, because there is no legislation that permits or requires the classification of the individuals who benefit from the Gender Identity Law according to their age. Thus, the Civil Registrar’s Service held that in order to provide the information it would need to conduct a specific study and research from different sources. Finally, it affirmed that creating databases was not part of its duties.
Regarding the first issue, the CPLT indicated that the requested information pertained the amount of individuals that relied on the Gender Identity Law in 2021 to change their name and their sex, and whether they were under or over 18 years old. Hence, there was no information related to identified or identifiable persons (name, address, ID, etc.). Consequently, the CPLT argued that the data could not be considered personal or sensitive and, thus, confidential. Since the request only referred to anonymous and statistical information, making it publicly available would not violate the right to privacy of the people nor the protection of their personal data. Moreover, the CPTL found a news source in a national media outlet containing the same information requested by the petitioner (amount and age of the individuals who changed their sex and names), but corresponding to 2020. In sum, the CPLT reaffirmed that statistical information about the Gender Identity Law should be publicly available.
As for the second issue, the CPLT considered that the Civil Registrar’s Service should have the requested information according to its legal obligations. In this sense, it held that the requested data did not refer to the elaboration of a new report but only to information that is stored and administered by the Civil Registrar’s Service, according to national legislation.
Hence, the CPTL concluded, firstly, that there were no valid grounds to keep confidential the information regarding the amount of people that change their name and their sex, and whether they were under or over 18 years old, and, secondly, that the requested data was stored and administered by the Civil Registrar’s Service. It ordered the Civil Registrar’s Service to deliver to the plaintiff the requested information within 5 days.
The decision had a dissenting opinion from Council Bernardo Navarrete Yáñez, regarding the second issue. In his opinion, the claim (amparo action) should have been rejected because the Civil Registrar’s Service was clear on not having the requested information. For Council Yáéz, the Civil Registrar’s Service had no mandate to classify the data according to the age of the individuals, as requested by the petitioner, and it could not be obliged to systematize and elaborate a new database with that information.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its ruling, the CPTL provided robust protection to the right of access to information regarding issues of public interest, such as gender identity issues. It held that anonymous and statistical information that had no data related to identified or identifiable persons (name, address, ID, etc.) could not be classified as confidential. In sum, it fosters access to government-held information of social relevance.
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