Court Ruling on Chile: “Democracy Demands Maximum Disclosure” of Information

Until September 19, 2006, no international tribunal had ever ruled that citizens of a country have a right to information held by their government. On that day, however, the Inter-American Court of Human Rights held that public access to information is essential to democratic participation and freedom of expression

The Inter-American Court, an autonomous judicial institution, ruled on the application of the American Convention on Human Rights, which Chile has ratified. The aim of the convention is to consolidate in the Western Hemisphere a system of personal liberty and social justice based upon respect for essential human rights. The court ruled that countries that have signed the convention must develop procedures for releasing government-held information that are guided by the principle of “maximum disclosure.” This means that, with few exceptions, all government-held information must be made accessible.

“This milestone ruling establishes a precedent that other courts and other countries should now follow,” said Darian Pavli, the legal officer for freedom of information and expression at the Justice Initiative, which helped take the case to the Inter-American Court and submitted an amicus curiae brief. As support for its ruling, the court cited a Justice Initiative report, Transparency & Silence, which compares freedom of information laws and practices in 14 countries, including Chile.

The case that produced the ruling, Claude Reyes and Others v. Chile, involved an environmental dispute that erupted in the early 1990s when a United States–based logging company purchased tracts of virgin forest in Chile’s swath of Tierra del Fuego, at the southernmost tip of South America. The company submitted a proposal to the Chilean government to extract timber from these lands, made an environmental impact statement, and, in 1996, began harvesting. Chilean and international environmental groups mounted opposition to the logging operation, arguing that it would adversely affect the region’s fragile ecosystems.

One of these environmental groups was the Terram Foundation, whose activists were interested in acquiring more information about the logging project. On May 6, 1998, Terram filed a request for access to documents and information with an agency of Chile’s government, the Chilean Foreign Investment Committee, which had vetted the logging company’s preliminary foreign investment application. On May 19, 1998, the vice president of the Foreign Investment Committee agreed to provide information only on the amount of the logging company’s total investment, which the committee later provided to Terram by fax. The committee failed, however, to respond to Terram’s other requests. Two follow-up letters went unanswered. The committee provided neither information nor any reasons for its failure to provide the information.

Terram’s executive director, Marcel Claude Reyes, and others sought relief in Chile’s domestic courts. They filed three successive appeals against the committee’s effective denial of their request, claiming a violation of their right to information under the Chilean Constitution and the American Convention on Human Rights. The Chilean Supreme Court summarily dismissed these appeals on July 31, 1998, saying they were “manifestly ill-founded.”

On behalf of Reyes and the other persons who had sought information from the commission, a group of NGOs and members of Chile’s parliament fi led a petition on December 17, 1998, with the Inter-American Commission on Human Rights, which provides recourse to individuals who have suffered violations of their rights under the American Convention on Human Rights. About three months later, the Inter-American Commission found Chile responsible for multiple violations of the convention and recommended that Chile comply with a number of measures that sought to remedy the individual violations at issue, as well as the systemic shortcomings of the Chilean systems for providing access to information and access to justice.

On July 8, 2005—that is, after seven years of legal wrangling—the commission referred the case to the Inter-American Court of Human Rights, asserting that Chile had violated Reyes’s and the others’ right of access to public information and their right to judicial protection under Articles 13 and 25 of the convention and that, by virtue of its failure to “ensure the victims’ rights to access to information and to judicial protection and [to] have mechanisms in place to guarantee the right to access to public information,” Chile had also violated Articles 1.1 and 2 of the convention.

The Inter-American Court of Human Rights had never before had an opportunity to consider fully the question of whether the convention guarantees a right of general access to information held by public authorities. The Justice Initiative joined with four other groups— ARTICLE 19; Libertad de Información Mexico-Asociación Civil (LIMAC); Instituto Prensa y Sociedad of Peru; and Access Info Europe—to file an amicus curiae brief in support of Reyes and the others. Te brief argued that a fundamental right of people to access information held by their governments has been established internationally and that this right is contained in the American Convention on Human Rights. The brief also asked the court to rule that the convention guarantees a general right of citizens to information held by public authorities and that Chile had to improve its access to information law and honor requests for information in the future.

In its judgment, the Inter-American Court concluded that Article 13 of the convention contains a right of general access to government-held information and that Chilean authorities had violated this right. Article 13, the court said, “supports the right of persons to receive such information and the positive obligation on the state to supply it,” except in the few cases where access is limited by the convention, and said “information should be provided without a need to demonstrate a direct interest in obtaining it.”

The court highlighted the connection between freedom of expression and information and rights of democratic participation in concluding that “access to information held by the State . . . permits participation in public governance.”

“[I]n a democratic society it is indispensable that state authorities are governed by the principle of maximum disclosure, which establishes the presumption that all information should be accessible, subject to a restricted system of exceptions,” the court stated, before concluding that the burden is upon the state “to prove that in setting restrictions on access to information in its possession it complied with the restrictions” laid out by the court.

The court ordered Chile to provide the information requested about the logging project. In addition, the court ordered the state to train public officials on the right of access to information, noting with concern that “various elements of proof presented in this case coincide in showing that public officials do not respond effectively to information requests.”

The judgment of the Inter-American Court is expected to have an important impact on the development of the right to information at the national level in the Americas. In those countries where the American Convention has been incorporated into domestic law, individuals and groups can now simply cite the Claude Reyes judgment to assert a right of access to government-held information.