CHILE: Guaranteeing that Public Documents Are Indeed Public

By IPS Correspondents Reprint | | Print |

María Cecilia Espinosa

SANTIAGO, May 16 2005 (IPS) - Civil society groups are pushing for a broader, more effective law guaranteeing public access to official documents in Chile, a country that performs well in surveys on corruption, but fared poorly in a recent study on transparency, due to what activists describe as a "culture of secrecy".

The non-governmental organisation Pro Acceso (to Public Information) and other citizen groups are seeking the expansion of a bill on access to information introduced by senators Hernán Larraín, of the right-wing Independent Democratic Union, an opposition party, and Jaime Gazmuri of the Socialist Party, which forms part of the governing centre-left coalition.

The bill would replace Chile’s public information law, which was passed in 1999, and has proven ineffective, according to activists.

But while the bill sponsored by Larraín and Gazmuri would make all matters of state administration public property, it does not include legislative and judicial documents.

Pro Acceso and other groups are thus seeking to extend the reach of the bill to legislative and judicial information, as well as documents in the hands of companies in which the state holds an interest and contracts between private firms and the state.

In addition, the groups propose the creation of an independent body in charge of defending the public right to information.

Lawyer Juan Pablo Olmedo, president of Pro Acceso, told IPS that the aim is to "foment a culture of transparency." He said the groups have studied the "sunshine laws" of Mexico, Britain, New Zealand and Australia to draw up their proposal.

In 1999, Chile’s public information law established the right of all citizens to ask any public agency for information without having to identify themselves or explain their reason for requesting the document.

But the law has been ineffective, say the citizen groups, largely because a government decree handed down in 2001 gave public bodies leeway to classify specific documents as secret or confidential.

And since then, a number of government ministries, municipal governments and other public entities have issued their own resolutions that have further restricted the public’s right to know.

Olmedo underlined that the 1999 law established, for the first time, the right of access to public information, while creating administrative and judicial procedures to protect the exercise of that right.

But, he said, government agencies have taken advantage of the 2001 decree and other loopholes to keep alive Chile’s "tradition of secrecy."

The activist called for a "radical change" in Chile’s bureaucratic system.

Under the bill introduced by Larraín and Gazmuri, all public information that does not involve national security would have to be provided within 10 working days of the request, although a 10-day extension of the deadline would be possible in exceptional cases.

Failure to comply would be punishable by fines for both the institution and the public employee involved, and the person who had unsuccessfully requested the information would be able to go to court to sue the public agency or the official in question.

Nevertheless, Olmedo said the bill falls short "because a greater stimulus is needed to eradicate the culture of secrecy," including new institutions that would "actively promote a culture of transparency."

Andrea Fernández, communications officer in the Chilean chapter of the anti-corruption watchdog Transparency International, told IPS that in Chile "the problem is not so much corruption but a secretive culture which does not recognise that public transparency can only exist when any citizen is truly able to find out how the public authorities are functioning and what forms the basis of their decisions, which affect the entire country."

"A modern, competitive and democratic society is based on transparency," she stressed. "Without information, there can be no real participation and democ racy."

In Transparency International’s reports, Chile has consistently ranked among the "cleanest" countries in Latin America.

However, it did not do so well in a comparative study on access to public information carried out by the Chilean non-governmental organisation Corporación Participa and the New York-based Open Society Institute.

The study, which compared the situation in Chile with the transparency found in Argentina, Armenia, Bulgaria, France, Macedonia, Peru, Romania, South Africa and Spain, noted that the proportion of access to information requests that were turned down was 69 percent in Chile, 63 percent in South Africa, and 62 percent in Spain.

In the study, a broad range of volunteers in Chile presented a total of 140 requests of varied gradations of sensitivity for information from government ministries, judicial institutions, municipal governments and private companies that provide public services.

Olmedo said he was not surprised by the results, which merely confirmed what he himself had been complaining about for so long.

But he said the study, which was conducted by highly respected organisations, should help lead to steps that would move Chile "from a tradition of secrecy to a culture of transparency."

For her part, Fernández pointed out that the countries that performed the worst – Chile, South Africa and Spain – have all emerged from authoritarian regimes in which "a culture of fear and repression took strong root."

"Our democracies in Latin America are still fragile, among other things because of the gap between the state and civil society," said the activist. "There is a lingering mistrust among the citizens with respect to the public administration, and very little oversight and monitoring."

Among the hurdles standing in the way of the public’s right to know in Chile, Transparency International points to the lack of training for public employees, a shortage of funds, and confusion among public agencies or officials as to who should determine when to release certain information to the public or when to deny information that has been requested.

"Public officials feel that information belongs to them, and they see sharing it as taking a risk, because they could do something wrong, or the information that they released could be misused by the person requesting it," the executive director of Corporación Participa, Andrea Sanhueza, commented to IPS.

In her view, one thing that is "essential to strengthening democracy is a transparent state that is held accountable for its actions and understands that it is at the service of the citizens, and that when it comes down to it, the citizens are the bosses, and not vice versa."

"We have to get involved in matters of public interest and have access to information in areas that concern us, whether that means the evaluation of the teachers in our children’s schools or information about the contract with the company that collects the garbage in our neighbourhood," she argued.

Access to information translates into "well-informed opinions, which allow us to get involved more effectively, with a greater political and social impact," concluded Sanhueza.