-43a recommendation on the right of access to official documents held by the public
authorities,85 and its principle IV establishes the possible exceptions, stating that “[these]
restrictions should be set down precisely in law, be necessary in a democratic society and
be proportionate to the aim of protecti[on].”
82.
The Court also finds it particularly relevant that, at the global level, many
countries have adopted laws designed to protect and regulate the right to accede to
State-held information.
83.
Finally, the Court finds it pertinent to note that, subsequent to the facts of this
case, Chile has made significant progress with regard to establishing by law the right of
access to State-held information, including a constitutional reform and a draft law on this
right which is currently being processed.
*
*
*
84.
The Court has stated that “[r]epresentative democracy is the determining factor
throughout the system of which the Convention is a part,” and “a ‘principle’ reaffirmed by
the American States in the OAS Charter, the basic instrument of the inter-American
system.”86 In several resolutions, the OAS General Assembly has considered that access
to public information is an essential requisite for the exercise of democracy, greater
transparency and responsible public administration and that, in a representative and
participative democratic system, the citizenry exercises its constitutional rights through a
broad freedom of expression and free access to information.87
85.
The Inter-American Court referred to the close relationship between democracy
and freedom of expression, when it established that:
Freedom of expression is a cornerstone upon which the very existence of a democratic society
rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non
for the development of political parties, trade unions, scientific and cultural societies and, in
general, those who wish to influence the public. It represents, in short, the means that enable
the community, when exercising its options, to be sufficiently informed. Consequently, it can be
said that a society that is not well informed is not a society that is truly free.88
86.
In this regard, the State’s actions should be governed by the principles of
disclosure and transparency in public administration that enable all persons subject to its
jurisdiction to exercise the democratic control of those actions, and so that they can
question, investigate and consider whether public functions are being performed
adequately. Access to State-held information of public interest can permit participation in
public administration through the social control that can be exercised through such
access.
85
Cf. Recommendation No. R (2002)2, adopted on February 21, 2002.
86
Cf. . Case of YATAMA. Judgment of June 23, 2005. Series C No. 127, para. 192; and The Word "Laws"
in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A
No. 6, para. 34.
87
Cf. Supra note 75.
88
Cf. . Case of Ricardo Canese, supra note 72, para. 82; . Case of Herrera Ulloa, supra note 72, para.
112; and Advisory Opinion OC-5/85, supra note 72, para. 70.