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a)
With regard to section 22(3),5 providing for the indefinitely temporal reserve
of access to information on certain issues related to national security, Chile states
that the grounds for secrecy or reserve therein set out, which are consistent with the
exceptions established in Article 13 of the American Convention on Human Rights, do
not entail a disproportionate restriction, but a reasonable measure in a democratic
society, for they comply with legality requirements in that any issues relative to
these matters are governed by constitutional and legal rules and aim at lawful
purposes like national security in the terms of Article 13(2) of the American
Convention and are necessary for a democratic society. The State adds that the
indefinitely temporal reserve is an “exception to the exception;” that it is a case of
exceptional reserve, which differs from other reserve situations the temporal status
of which is expressly provided for.
b)
With regard to section 29,6 providing for information submission suspension
based on an appeal against an order of the Council for Transparency before any
competent court of appeals, Chile states that the measure is related to the due
protection of third parties who may be adversely affected by such information
submission. The rationale for this provision is established in the fact that no
information may be furnished while the lawfulness of its submission is still under
review; the natural effect of any request for review is to maintain the statu quo of
the issue until a resolution is achieved. This procedure has been “built on the respect
for judicial guarantees and forwards to all persons the power to object resolutions
that may adversely affect the effective exercise of their rights,” in a way
“incompatible with the American Convention.”
Section 22.- Those acts deemed secret or reserved under a special majority law shall maintain their status
until a new law of same hierarchy repeals said status.
[…]
However, the secret or reserved nature shall be indefinite when it concerns acts and documents which, at a
national defense level, provides for strategic or military planning, and those the publication or disclosure of which
may affect:
a) The territorial integrity of Chile;
b) The interpretation of or compliance with an international treaty on boundaries signed by Chile;
c) The International defense of the Rights of Chile, and
d) The foreign affairs policy of Chile in a serious manner.
The documents recording acts declared secret or reserved under a special majority law shall be kept in good
preservation and security conditions by the proper entity or service.
The documents recording acts declared secret or reserved by an entity or service shall be kept in good preservation
and security conditions by the proper entity or service for the term of ten years, notwithstanding the rules
governing delivery thereof to the National Archive.
The results of the surveys and opinion polls conducted at the request of State Administration entities duly
empowered for that purpose shall be reserved until the end of the presidential period during which they were
conducted, as a means to secure due fulfillment of their duties.
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Section 29.- In the event the requested order authorizes access to the information denied by an entity of
the State Administration, the filing of the request, whenever admissible, shall stay delivery of the requested
information and the Court shall not adopt any measure allowing disclosure or access thereto.