-17The problem of discretionality has gradually been reduced by legal mechanisms. In the
different legislatures, it is becoming more frequent to observe the State’s extensive
capacity to invoke a series of factors when faced by gaps in the law. In some countries,
measures have been implemented that emphasize this possibility of discretionality.
Exceptions to the disclosure of public information should be minimal, established by law
and regulated insofar as possible, to avoid information of public interest being
incorporated into some of these exceptions. “The crucial section is to ensure that the laws
on access to public information produce concrete results with reports and information
that allow society to exercise an oversight function, [...] to combat corruption, [...] to
satisfy personal interests, [...] to exercise rights and [...] to comply with obligations.”
b)
Proposed by the alleged victims’ representative
2.
Roberto Mayorga Lorca, lawyer, and FIC Oversight Officer (fiscal)
and Vice President from 1990 to 1994
According to Article 15 of Decree Law No. 600 (Investment Act), the mandate and the
obligations of the Foreign Investment Committee are to study and to provide information
on investment applications, which means investigating in Chile and abroad the suitability
and soundness of those who present applications. Also, FIC must “report any offense or
infraction it learns about to the competent public authorities and entities.” According to
Decree law No. 600, the Committee is obliged not only to examine the transfer of capitals
but also the suitability of the investor, based on the information assembled when the
request is presented and on its own criteria. Even though it does not have an “external
investigation network,” FIC had a permanent connection with the international police,
which verified whether the investment applicants had a criminal record.
Once the application had been submitted, all the documentation collected by the
Committee formed part of a file examined by the legal department, which prepared a
report on whether the investment was admissible. If the report was positive, a decision
was taken on whether the project should be approved or rejected at a meeting between
the Foreign Investment Committee, the Ministers, the Oversight Officer and the Vice
President.
c)
Proposed by the State
3.
Carlos Carmona Santander, lawyer
In 2005, the Constitution of the Republic was reformed and “for the first time, provisions
applicable to all State entities were introduced into [the Chilean] system, establishing the
obligation to provide [the petitioner] with the requested information.” Until then, the
right of access to information was regulated by law; however, with the reform, it became
regulated directly by the Constitution, as a principle applicable to all State entities. This
provision is established in the first title of the Constitution, which provides the basis for
interpreting all the other titles that regulate the different powers and rights of the
individual.
This constitutional regulation establishes that it is possible to refuse a request for
information based on secrecy or confidentiality, which may be established for a series of
reasons, including the following: when disclosure would affect due compliance with the
functions of the [State] entities; when disclosure would affect individual rights; and when