Access to Public Information
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The Sixth Chamber of the Court of Appeals of Santiago de Chile rejected the illegality claim filed by the State Defense Council against the Amparo Decision No. C5061-2021, issued by the Transparency Council, thus it upheld the decision ordering the Chilean Navy to deliver information regarding the qualifications and curriculum vitae of former Navy Chief Commander Jorge Patricio Arancibia Reyes. Access to the information—requested by a citizen—was denied by the Chilean Navy which claimed that the officer’s résumé contained classified data that posed a risk to national security and would breach his privacy. The Transparency Council ordered the Chilean Navy to provide the requested information, after redacting the physical and personal data. The State Defense Council challenged this decision before the Court of Appeals of Santiago. Upon reviewing the case, the Court concluded that the résumés of public servants are not classified—on the contrary such information is public and its dissemination is necessary to exercise oversight—as long as the physical and personal information therein is redacted prior to its release to the public. Therefore, it dismissed the claims of the State Defense Council and upheld the disclosure of these documents.
On May 20 and 21, 2021, the citizen Paulette Desormeaux requested information from the Chilean Navy regarding the qualifications and curriculum vitae of former Navy Chief Commander Jorge Patricio Arancibia Reyes, in the period between his entry to the institution until his retirement.
On July 2, 2021, the Chilean Navy answered that it would ask officer Arancibia Reyes to agree to or opposition the delivery of the requested information, since, to the Navy, delivering it could affect his rights.
The former official expressed his opposition to the delivery of the requested information alleging that the documents contained personal data regarding his private life that should not be accessible to the public.
In light of this, the Navy delivered only the officer’s service record and denied access to his curriculum vitae. The Navy explained in its decision that disclosing all the information would breach the privacy of Arancibia Reyes and pose a risk to national defense and security since the officer’s CV included sensitive information regarding military preparation and training on the duties, roles, missions, and, standards in the Navy.
On July 5, 2021, Desormeaux filed an amparo action against the Chilean Navy before the Transparency Council, considering that the military authority breached her right of access to information.
On November 4, 2021, the Transparency Council granted the amparo and ordered the Chilean Navy to deliver the requested information after redacting the physical and moral data there included about the public servant.
On November 19, 2021, the State Defense Council, on behalf of the Chilean Navy, filed before the Court of Appeals of Santiago de Chile an illegality claim against the Transparency Council’s decision.
The Sixth Chamber of the Court of Appeals of Santiago de Chile had to determine whether the Transparency Council acted in accordance with the law by ordering the Chilean Navy to disclose the curriculum vitae of a former Navy Commander in Chief, arguing that divulging this information did not breach the officer’s right to privacy nor posed a risk to national security or defense.
The State Defense Council argued that the decision issued by the Transparency Council was illegal because personal and military information must be considered classified, per the Transparency Law and the Code of Military Justice. The State Defense Council pointed out that the requested information could contain references to physical, moral, racial, ideological, financial, and other information pertaining to the private life of the officer that are sensitive in nature. Lastly, it argued that the former official expressed his refusal to hand over the information, as it could affect his private life and honor.
For its part, the Transparency Council stated that the information in the résumés of officials is public under Article 8 of the Constitution and Articles 5, 10, and 11, letter C of Law No. 20.285. It also pointed out that any claim regarding the confidentiality of information must be accredited and duly weighed against the right to access public information. The Transparency Council concluded that, in the specific case, the publication of the résumé did not affect the security of the nation.
The Court began by stating that the State Defense Council lacked standing regarding the alleged breach of privacy of former Navy Commander in Chief Arancibia Reyes. As the exclusive right holder, only the officer was entitled to file the appeal on this particular matter. The Court specified that the former officer was summoned and notified, and chose to refrain from participating in this process.
Subsequently, the Court then concluded that the information in the résumés of former public officials is public—following Articles 5, 10, and 11, letter C of the Transparency Law, and Article 8 of the Constitution—since it includes data on the career, qualifications, and performance of civil servants and guides qualification processes.
Likewise, the Court noted that the retired officer’s résumé was made with public budget and was the basis upon which the Chilean Navy issued resolutions in the qualification processes of the former officer.
The Court did not find any grounds that would justify the classification of the requested information. It argued that the Chilean Navy only invoked generic exceptions without properly accrediting how, for example, disclosing the information could affect national security or other rights. The Tribunal held that the reasons that justify classifying information are exceptional, and as such their application must be restrictive considering they limit the fundamental right of access to information.
Furthermore, the Court referred to the jurisprudence of the Chilean Supreme Court in the case Rol N° 49.981-2016. In this case, the Supreme Court argued that in order to classify any public information, it must be proven with a sufficient degree of specificity that divulging the information could be harmful to other rights. Thus, the Court held that the State Defense Council failed to meet this standard since its arguments and evidence were insufficient in this sense.
Additionally, the Court considered that the decision issued by the Transparency Council did not violate the civil servant’s right to privacy and protection of personal data. Although the latter authority ordered the delivery of the requested information it also ordered, before delivery, to redact data referring to the physical and personal characteristics of the military man, as well as all personal contextual data not related to the exercise of his public duties.
The Court also argued that by virtue of the duties exercised by public servants—which demand from them, by constitutional mandate, probity—restriction on access to their private life are limited and exceptional. In order to exercise oversight and control on these parameters it is necessary, the Court said, that their acts are divulged.
Hence, the Court upheld the Transparency Council’s decision and rejected the illegality claim lodged by the State Defense Council.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it safeguards the right to access state-held information of public interest. The Court highlighted that by the nature of the duties carried out by public servants, and the upright manner they must conduct themselves, disclosing of their actions and documents is key to exercising public oversight. Furthermore, the Court also held that authorities that carry out public duties or receive public funds must guarantee access to its documents, including the résumés of their workers.
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