Access to Public Information, Privacy, Data Protection and Retention
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The Constitutional Court of Chile held that constitutional amendments providing unrestricted public access to asset declarations of public officials were constitutional and did not conflict with the right to privacy guaranteed by Article 19 of the Constitution. The Court found that all holders of public office must demonstrate integrity in their actions and therefore transparency of their personal assets is in the public interest. However, government agencies administering the disclosures must take great care that the information is not abused. The Court reasoned that the amendments did not disrupt the harmony between an individual’s right to privacy and the public’s right to access the declarations because personal property is “an attribute external to one’s personality,” and relates to an economic sphere which is distinct from the intimate personal sphere of privacy guaranteed by the Constitution.
This analysis was contributed by Right2Info.org.
The Chilean Congress passed amendments to the Constitution which expanded the disclosure requirements for public officials. According to the 2006 Law No. 20.088, civil servants and members of the legislative and judicial branches and other autonomous agencies must submit sworn declarations of assets and conflicts of interest (Article 1 et seq.). All assets’ declarations must include assets held by the official’s spouse and are public in their entirety (Article 1.1). The amendments required public officials to disclose, among other things, personal interests in land, businesses, and personal property. The amendments also required that those declarations be publicly accessible.
In accordance with Article 93 of the Constitution, Congress submitted the amendments to the Constitutional Tribunal to determine their constitutionality before promulgating them. The Tribunal’s primary concern was with the potential invasion of private life, guaranteed by Article 19 of the Constitution, which could arguably result from these expanded disclosures.
The Tribunal found that unrestricted public access to asset declarations is consistent with the Constitution’s privacy protections, provided that third party access to the declarations serves the legitimate goals pursued by the statute, and emphasized that government agencies administering the disclosures must take great care that the information is not abused. Although these public agencies were also given some authority to make rules regarding the disclosures, the Tribunal interpreted this authority to include mere “administrative regulations for the execution of the law.” The Tribunal held that any attempt by these agencies to expand upon the substance of the disclosures required would be unconstitutional.
Given these limiting interpretations, the Tribunal ruled over one dissent that the amendments were constitutional. The Tribunal emphasized that constitutional principles which guarantee individual rights, such as the right to privacy, must be interpreted and applied in harmony with other principles in the Constitution. The amendments did not disrupt this constitutional harmony, the Tribunal held, because personal property is “an attribute external to one’s personality,” and relates to an economic sphere which is distinct from the intimate personal sphere of privacy guaranteed by the Constitution.
The Tribunal noted that Article 8 was also a competing constitutional principle, stating that “the exercise of public functions obligates holders of public office to strictly comply with the principle of integrity in all of their actions.” Public office is legally distinct from the private sphere because the relationship between the state and public officials is not a natural relationship, but a legal one established by statute which “may be permanently altered by the legislature for the benefit of the public interest.”
Because the legislature duly enacted the amendments, and because they did not violate the constitutional guarantee of privacy, the Tribunal held that they were constitutional.
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