-3357(41) On August 26, 2005, Act No. 20,050 reforming the Chilean Constitution entered
into force. Among other substantial reforms, it incorporated a new Article 8, which
established that:
The exercise of public functions obliges officials to comply strictly with the principle of probity in
all their actions. The acts and decisions of the body of the State are public, and also their
justification and the procedures used. Only a law with a special quorum can establish their
secrecy or confidentiality when disclosure would affect due compliance with the functions of
these entities, the rights of the individual, or national security or interest.64
The fifth transitory provision of the Chilean Constitution establishes that “[i]t shall be
understood that the laws in force on issues relating to this Constitution shall be the object
of constitutional organic laws or laws adopted by a special quorum, shall comply with
these requirements, and shall continue to be applied, provided they are not contrary to
the Constitution, until the corresponding laws have been issued.”65
57(42) On October 7, 2005, the Senate of the Republic of Chile adopted the draft law on
access to public information modifying Decree Law No. 1 which had established the
consolidated, coordinated and systematized text of the Organic Law on General Principles
of State Administration, in order to “achieve a high level of transparency in the exercise
of public functions [and encourage] increased and more effective civic participation in
public matters.”66 This draft law is currently at its second constitutional stage.
57(43) On December 12, 2005, the Ministry-General Secretariat of the Presidency issued
Decree No. 134, derogating Supreme Decree No. 26 of 2001 (supra para. 57(36)), on the
basis that, following the reform introduced by the new Article 8 of the Constitution (supra
para. 57(40)) the content of the said Decree “was now contrary to the Constitution and,
hence, could not continue to be law.”67
57(44) On January 30, 2006, the Minister-Secretary General of the Presidency sent an
official communication to several State authorities with “guidelines describing the
applicable criteria and rules on disclosure and access to administrative information,”
because, as a “result of the derogation of Decree No. 26,] all the decisions issued under
this regulation establishing cases for the secrecy and confidentiality of acts and
documents of the Administration had also been tacitly derogated.”68
57(45) On February 15, 2006, the Presidential Advisory Committee for the Protection of
Human Rights69 informed the Court that “it had taken the initiative to unofficially urge
64
Cf. Act No. 20,050 published in the official gazette on August 26, 2005 (file of appendixes to the
requests and arguments brief, appendix I, folios 1088 to 1107).
65
Cf. Ffth Transitory Provision of the Chilean Constitution, supra note 36.
Cf. Draft Act No. 3773-06 on Access to Public Information (file of appendixes to the brief answering the
application and with observations on the requests and arguments brief, appendix 7, folios 2261 to 2270); and
draft Act No. 3773-06 on Access to Public Information (helpful evidence incorporated by the Inter-American
Court, available at http://sil.senado.cl/pags/index.html).
66
Cf. Decree No. 134 issued on December 12, 2005, by the Ministry-General Secretariat of the
Presidency (file on merits, reparations, and costs, volume II, folio 539).
67
68
Cf. Undated letter signed by the Minister-Secretary General of the Presidency (file on merits,
reparations, and costs, volume II, folio 541).
69
Cf. Supreme Decree No. 65 of May 11, 2001 (file of appendixes to the requests and arguments brief,
appendix I, folios 1088 to 1107); and report issued on February 15, 2006, by the Chairman of the Presidential