Chile's Highest Court Finds a Constitutional Right of Access to Information

NEW YORK—Chile's highest court issued a seminal ruling this week, declaring for the first time that the right of access to government information is protected by the constitution's guarantee of freedom of expression.

The Open Society Justice Initiative intervened in the case in April 2007 by filing a friend of the court brief. The Justice Initiative's brief, filed in coordination with the Chilean transparency group Pro Acceso, argued that third party (private) information held by the state should be disclosed, unless such disclosure would clearly harm legitimate commercial interests. The constitutional tribunal agreed, striking down a statutory provision that granted officials excessive discretion to withhold information in the name of private interests.

The case, Casas Cordero et al. v. The National Customs Service was the first freedom of information case to reach the constitutional tribunal. The case arose when a Chilean company filed a request for information from Chile's Customs Department, regarding alleged irregularities in setting customs tariffs. At issue was whether the government may withhold information provided by a private company, without even consulting the private party or considering the public's interest in the publication of that information.

In finding for the applicant, the tribunal first established that the right of access, even though not explicitly recognized by the Chilean constitution, was protected by the constitution as an integral part of the broader right to freedom of expression and the constitutional principle of a democratic republic. In the words of the tribunal, the right of access is "an essential mechanism for (ensuring) the full effectiveness of the democratic regime" which promotes "the adequate exercise and protection of (other) fundamental rights."

The tribunal held that any restrictions on the right of access must be defined and construed narrowly. Turning to the specific facts of the case, the tribunal found that the statute at stake granted agencies impermissibly broad discretion to withhold third party information, whose disclosure might arguably harm their confidentiality interests. In particular, the court held, agencies cannot withhold such information without first consulting with, or receiving objections from, the third party involved. The Chilean Constitution mandates that any restrictions on access to government information must be established by a statute adopted by a congressional super-majority.

In September 2006, in the case of Claude Reyes et al. v. Chile, the Inter-American Court of Human Rights became the first international tribunal to recognize that the right of access is a basic human right under international law. Partly in response to the Claude judgment, the government of President Michelle Bachelet has introduced a new legislative proposal aimed at overhauling the Chilean access regime.

The Chilean tribunal's decision followed similar rulings by the Constitutional Court of Costa Rica and, more recently, a Paraguayan court, which found that there is a basic right of access to government information in their respective countries.

Ropes & Gray LLP, a US-based law firm, provided pro bono legal assistance to the Justice Initiative in the preparation of the brief. The Chilean law firm Colombara & Olmedo represented the applicants at the Constitutional Tribunal proceedings.