Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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The Transparency Council of Chile protected the right of access to information of the plaintiff by ordering the Regional Ministerial Secretariat of Health of the Valparaiso Region to disclose information on the salary statements of a public official and their job duties. The plaintiff’s information request was originally rejected by the Regional Ministerial Secretariat of Health of the Valparaíso Region, who alleged a violation of the right to protection of personal data of third parties. For the Council, the required information was public in its nature, since it mainly referred to the salary of a public official paid with public funds in the context of his employment. Through its decision, the Council protected the integrity of sensitive information contained in State documents, reinforced the principle of active transparency of the public function, and ordered the delivery of the information to the requester.
In August 2021, Mrs. Pamela Rivero Bravo formally requested from the Regional Ministerial Secretariat of Health (hereinafter, SEREMI) information on the job duties, employment contract, and salary statements of the Regional Food Manager at this governmental institution in Valparaíso. Specifically, she requested this information for the period between July 2020 to June 2021.
A month later, the SEREMI denied the access to information request. For the SEREMI this decision was justified under Article 21, numeral 2 of the Transparency Law, which provides the possibility of denying access to public information when it may affect “[…] the rights of individuals, particularly in the case of their safety, health, the sphere of their private life, or rights of a commercial or economic nature.” In response to this decision, the applicant filed an amparo action before the Transparency Council of Chile against the SEREMI.
The Transparency Council of Chile had to determine whether granting an access to information request, requiring information about the job duties, employment contract, and salary statements of a public official, breached the right to privacy of the aforementioned official, or rather whether the information was public and had to be disclosed.
In addressing this case, the Council pointed out that under Article 8, item 2, of the Constitution of Chile, all acts and resolutions issued by the state are public by principle. The Council also mentioned that public officials, due to the nature of their duties, are subjected to a higher degree of scrutiny and public oversight.
The Council also noted that —according to Article 8 of the Constitution and Article 3 of the Transparency Law— “public function […] must be exercised with probity and transparency, favoring the general interest over private interests.” This entails an obligation with constitutional rank by which the state administration has to be transparent about its employees, their duties and actions.
Upon analyzing the specific case, the Council noted that it has developed a case law of its own regarding access to information requests about public officials’ salaries. Following the criteria set in decisions such as C211-10, C3183-17, C3184-17, C4153-18, and C7829-20, the Council considered that the information about the salaries of public officials is public by nature since it regards the exercise of public duties paid with public funds. Based on this reasoning, the Council argued, a higher scrutiny of public servants is justified, as long as it doesn’t affect their private life.
In light of this, the Transparency Council granted the access to information request lodged by the plaintiff since it related to data held by a government institution and the salaries of a public official. Nonetheless, the Council ordered the deletion of private information that could be present in the salary statements, such as health insurance information, voluntary savings, consumption credits, address, birth date, phone number, and private email, among others —in order to “reconcile the protection of the legal rights underlying the personal and sensitive information which would account for part of the statements requested.”
The Council ordered the Regional Ministerial Secretariat of Health to deliver the aforementioned information within five working days after the notification of the decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the right to freedom of expression since it provides a robust protection to the right to access information regarding issues of public interest, such as the salaries of public officials. In doing so, it abides by international human rights standards in the matter, as set by the ICtHR, which foster transparency, accountability, and public oversight of the state.
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