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He mentioned what he considered are the obstacles and restrictions to access to public
information in Chile. The law that formally incorporated the principle of disclosure into the
Chilean legal system (the Administrative Probity Act) allowed the right of access to
information to be restricted by providing that the grounds for refusing access could be
established by legal or regulatory provisions. From 2001 to 2005, administrative practices
were implemented that favored the confidentiality and secrecy of administrative acts,
documents and background material. These practices were based on the Secrecy or
Confidentiality Regulations created by Supreme Decree No. 26 of the Ministry-General
Secretariat of the Presidency. The Regulations transcended the framework of normative
jurisdiction, increased the grounds for refusing information, and gave rise to the
announcement of some one hundred decisions by body of the Administration that
transformed secrecy and confidentiality into “the general rule, impairing the principles of
transparency and disclosure.” Another obstacle was the limited and insufficient judicial
protection arising from the special amparo (protection) remedy established in the
Administrative Probity Act which, far from strengthening the principle of disclosure and
access to information, has resulted in departmental heads choosing to “wait for a judicial
decision,” which also provides little protection to applicants.
b)
Proposed by the State
4.
Claudio Francisco Castillo Castillo, lawyer
He referred to the nature and functions of the Foreign Investment Committee under the
provisions of Legislative Decree No. 600. He underscored the work of promoting
investments carried out by the FIC Vice Presidency from 1994 to 2000.
Regarding the processing of foreign investment applications, investors who “wish to make
investments in Chile […] must complete a Foreign Investment Application on a printed
form prepared by the FIC Vice Presidency.” On the form, the investor must provide, inter
alia, information on “[n]ame or company name; principal associates or shareholders;
nationality; financial information; line of business; brief description of the project to be
[executed] in Chile; amount of the proposed investment to execute the project;
background information on the Chilean company that will receive the investment; [and
whether the investors] have decided to take advantage of the invariable tax regime.”
This investment application must be presented to the FIC Vice Presidency accompanied
by the investor’s legal registration data. The FIC Vice Presidency must assess the formal
aspects and, lastly, applications involving less than US$5 million must be authorized by
the Executive Vice President following the agreement of the President of the Foreign
Investment Committee; applications involving more than US$5 million must be
authorized by the members of the Committee. The authorization granted to the investors
to make their capital contributions is “without detriment to the authorizations that must
be obtained from the local authorities, according to the type of project planned.”
With regard to the level of confidentiality of the actions, documents and operations
related to foreign investment projects in Chile, all the data held by the FIC Vice
Presidency in relation to each project is provided by the investors. During the 1990s, a
distinction was made between the levels of confidentiality of the information presented by
the investors. Some information was not of a public nature because it referred “to a
specific business undertaking owned by the foreign investors.” Regarding the latter, the
FIC Vice Presidency “was very careful not to provide this information to third parties.”
“The significant expansion of many of the country’s productive sectors would not have