-16is to authorize the entry of capital and the corresponding terms and conditions, and the
country had an institutional framework for each sector.” Trillium was not consulted prior
to the refusal of this information; rather the refusal was based on “a policy” and the
practice of the Foreign Investment Committee and its Executive Vice Presidency.
Regarding the mechanism for responding to requests for information received by the
Committee, the practice was to answer the request in writing. In this case, the request
“was answered by a meeting and a fax.” Subsequently, “there were letters […] that were
answered orally”; in other words, “there was personal contact” and, hence, it was not
considered “necessary to formalize this exchange.” He stated that “written questions
should be answered in writing and, if this was not always done, [he was] guilty of an
administrative error.”
EXPERT OPINIONS
a)
Proposed by the Commission
1.
Ernesto Villanueva, lawyer
“Article 13 of the Convention has been interpreted systematically as a source of one
aspect of the right of access to public information.” “On the one hand, human
development […] is engendering increased demand [as regards] the spirit of the norm
[and,] on the other hand[,…] the right of access to public information implies that
[society] is the owner of the right […] and that […] the State authorities are depositaries
of information that does not belong to them.”
An appropriate law on access to public information should include an extensive number of
entities that are obliged to provide information, and applicants for information should not
have to justify their request, since it refers to public information and, thus, to a
fundamental human right. Another important factor is that, when classifying information
as confidential, limited use should be made of the exceptions. It must be demonstrated
that there is probable and possible harm that would affect the general interest and the
exception invoked; consequently, it would be necessary to explain the reasons why this
information has not been provided. In addition, it must be shown that this harm would be
greater than the public’s right to know the information for “reasons of public interest.”
Only in this way, could a distinction be made between confidentiality based on political
criteria, and confidentiality because matters of public interest that should be retained as
an exception to access to information could be jeopardized. The law should provide for
institutions to ensure compliance.
The more advanced countries have introduced legal measures such as the obligation to
keep a complete record of all activities; they also give the regulatory agency powers to
investigate and crosscheck, allowing it to verify whether the information truly does not
exist or whether this is merely a mechanism for refusing to provide it to the applicant.
In this specific case, the Foreign Investment Committee did not conform to international
standards. The modifications that Chile has made to its laws do not meet these
standards, because, owing to legal vacuums, the State is able to cite a series of
discretional factors by interpreting the exceptions in order not to provide the requested
information.