-10The role of FIC to investigate the suitability and soundness of applicants involves
requiring foreign investors to provide all public or private background material in Chile or
abroad that proves they have access to the capital they wish to import into the country.
“Regarding the foreign investors involved in the Trillium Project, they were requested to
provide all the background information required from juridical persons [… .] Based on the
background material provided […], the Foreign Investment Committee considered they
complied with the [required] conditions of soundness and suitability”
At the time the petitioners in this case requested information from FIC, its Vice
Presidency “considered that all information regarding third parties was of a confidential
nature, if its disclosure could constitute a violation of the privacy of the owners of the
information, irresponsibly endangering the results of the investors’ activities in [Chile].”
The witness alluded to some of the information considered of a confidential nature, such
as commercial information, copyrights and trademarks, use of technology and, in
general, the specific characteristics of the investment projects that investors wished to
develop with the capital they were requesting the authorization of FIC to transfer to
Chile. When submitting investment applications, investors were not obliged to present
“totally defined or structured” projects; consequently, the FIC Vice Presidency and FIC
had to manage the information provided by investors with extreme prudence, to provide
them with an adequate assurance that the details of their commercial activities would not
be divulged. Administrative Decision Exenta [Note: exempt from the control of the
Comptroller General’s Office] No. 113 of 2002 contains the abovementioned criteria and
establishes the records, documents and background data of the FIC Vice Presidency that
should be considered secret or confidential. The 2005 Chilean Constitution imposes the
obligation to review all existing information policies to ensure they are in keeping with
Article 8 of the Constitution. To this end, in official communication No. 072 of 2006, the
Ministry-General Secretariat of the Presidency provided the public services with
guidelines on transparency and disclosure of the Administration’s acts.
Regarding the attitude of FIC to the Terram Foundation’s request: during the meeting
held between the petitioners and the FIC Executive Vice President, the latter “provided
them with the information they requested on the project, in keeping with the criteria on
disclosure and confidentiality in force at the time. The same day, the information was
complemented by a fax addressed to Marcel Claude Reyes. Disregarding the information
provided by the FIC Vice Presidency, the Terram Foundation repeated its request on two
occasions (June 3 and July 2, 1998) and, subsequently, initiated a series of complaints
and claims before the courts of justice and the media, a situation that gave rise to the
corresponding clarifications by the FIC Vice Presidency. The information provided by the
FIC Vice Presidency to the Terram Foundation was “the information that FIC possessed”;
namely, information on “the foreign investment contracts signed under Legislative Decree
No. 600, the identity of the investors, the authorized amount of the investment, the
capital inflow schedule, [… and the] capital that had effectively been imported.”
The FIC Vice Presidency’s “communications policy” has always been applied in the same
way to all those requesting any information or background material “that it might have.”
The witness considered that the same procedure was followed in this case as in any other
request for this type of information.
EXPERT OPINIONS
a)
Proposed by the alleged victims’ representative