Access to Public Information
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Chile’s Transparency Council (Consejo para la Transparencia) granted Valentina Faúndez’s amparo action and ordered the Municipality of Yungay to provide the information requested regarding the functions of the municipality. Ms. Yungay had submitted a request for access to public information with thirteen questions regarding the policies of the Municipality of Yungay in relation to various topics (i.e., sports, environment, street harassment, public health, social rights, among others). The Municipality of Yungay denied the request on the grounds that the information asked by Mrs. Faúndez was not protected by the Transparency Law and that it was formulated in the form of a “survey.” The Transparency Council considered that the request referred to issues that are subsumed within the functions of the Municipality and established that such information is protected by the Transparency Law.
On July 30, 2021, Valentina Faúndez requested information and documentation from the Municipality of Yungay (Chile) regarding: (i) whether the Municipality has programs to prevent street harassment; (ii) whether the Municipality has any governmental area dedicated to the environment; (iii) the list of laws issued on the environment during 2019 and 2020; (iv) training programs on pet care; (v) whether the Municipality has taken measures in the framework of the Cholito Act (Ley Cholito) on responsible pet and companion animal ownership; (vi) whether the municipality provided assistance to families during the Covid-19 pandemic; (vii) whether the municipality has any governmental area or cooperation with any agency regarding HIV; (viii) whether the municipality has programs regarding HIV; (ix) the amount of sports clubs within the municipality; (x) whether the municipality has sports promotion programs; (xi) whether the municipality has a database on street harassment complaints; (xii) whether the municipality grants sums of money or economic support to its inhabitants to pursue studies or higher education; and (xiii) the list of laws issued in relation to the Covid-19 pandemic during 2020.
On August 2, 2021, the Municipality of Yungay denied Ms. Faúndez’s request on the grounds that the requested information was not protected by Articles 5 and 10 of Chile’s Transparency Law 20.285. In this regard, it considered that Ms. Faúndez requested the Municipality to answer “a survey or list of questions” that are not protected by the right to “request and receive information” in accordance with Law 20.285. It also added that the petitioner did not request access to any “specific act, document or record in the possession of the state Administration” but presented her request in the format of a “survey.” [para. 4]
On August 2, 2021, Ms. Faúndez submitted an amparo against the Municipality of Yungay to protect her right to access information due to the authority’s refusal to answer her request.
The Transparency Council had to decide whether the information requested to the Municipality of Yungay was “public information” protected by the Transparency Law 20.285 and whether failure to provide such request constitutes a violation of the right to access public information.
The Municipality of Yungay argued that Ms. Faúndez’s request “was not a request for access to public information” although it claimed to have fully responded to her request [para. 13]. Ms. Faúndez argued that her right to access to public information was violated because “the Municipality refused to respond to her request” [para. 5].
The Transparency Council held that the Political Constitution of Chile established in Article 8, paragraph 2, that “the acts and resolutions of the organs of the state are public” [para. 14]. At the same time, it explained that Article 14 of the Transparency Law orders public authorities to provide answers to requests for access to the information within a maximum period of twenty days.
In turn, the Council remarked that Law 18.695 on the Municipalities of Chile established that the duties of the Municipalities are education, culture, public health, environmental protection, social assistance, sports, recreation, public safety, and promotion of equality, among other issues. Accordingly, the information requested by Mrs. Faúndez “is directly linked to the duties of the Municipality and even if it has been formulated in the form of questions or surveys it must be satisfied in an affirmative or positive manner by providing the necessary documents” [para. 16].
In addition, the Transparency Council held that all the items requested by Mrs. Faúndez were “public information” protected by the Transparency Law because those referred to issues that are subsumed within the functions of the Municipality and that such information is protected by the Transparency Law. Thus, it concluded that the Municipality of Yungay violated Article 14 of the Transparency Law.
Furthermore, after evaluating the arguments and evidence offered by the parties, the Council considered that items (iv) and (v) were answered outside the legal deadline, that is, the information related to pet ownership and the Cholito Law. Consequently, it considered that the Municipality of Yungay violated Article 11.h of the Transparency Law after providing the information related to items (iv) and (v) late or extemporaneously.
The Board of Directors of the Transparency Council ordered the Municipality of Yungay to provide the necessary documentation on all the points requested by Ms. Faúndez with the exception of questions (iv) and (v), within a period that should not exceed 5 days from the date the decision became final. Likewise, it ordered the Municipality of Yungay to prove before the Transparency Council that it had sent the information requested by Ms. Faúndez. Finally, it sanctioned the Mayor of the Municipality of Yungay for violating Articles 11.h and 14 of the Transparency Law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its decision, the Transparency Council guaranteed the right of access to public information in relation to topics that concern public duties of the Municipalities of Chile. In this sense, it is understood that a wide range of topics (among them, environment, animal protection, sports, health, security, and social rights) can be considered to be “public information” since they relate to the duties of the municipalities.
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