The Masprot Corporation, which makes protective masks, requested information from the National Customs Service of Chile (the Service) regarding the valuation of similar masks produced by transnational corporations such as MSA USA and 3M Corporation suspecting irregularities in the setting of custom tariffs. In 2003, the Service denied the request relying on Article 13 of the Organic Constitutional Law on General Rules of the Administration of the State, No. 18.575 (law No. 18575), which permits the Service to withhold information that affects the rights and interests of a third party. The Service did so without consulting any of the third parties involved.
After a failed suit by Masprot, Law Number 20.050 was passed in 2005, which amended Article 8 of the Constitution to provide for increased access to public information. In 2006, Mr. Casas Cordero (Cordero), as representative of Masprot, commenced a new proceeding in the Civil Court of Valparaiso under Article 14 of the Organic Constitutional Law, which was ultimately escalated to the Constitutional Tribunal of Chile. Before the Constitutional Tribunal, Cordero sought to have law No. 18575 declared unconstitutional as applied to his case.
First, the Constitutional Tribunal ruled that Article 8 of the Constitution establishes that information regarding state acts, such as the valuation used for setting tariffs, is public information. The Tribunal looked to Article 19(12) of the Constitution, which guarantees the right to freedom of expression, and ruled that the right to access public information is implicit in the right to freedom of expression. Specifically, the Tribunal ruled that without this information a citizen cannot exercise the right to freedom of expression as an effective means of citizen participation in, and democratic control of, the government. The Tribunal also cited Article 13 of the Declaration of Principles of the Inter-American Commission of Human Rights in support of this principle. The Tribunal further held that any restrictions on the right of access must be defined and construed narrowly.
The Tribunal then examined the conflict with law No. 18.575, which permits public officials to withhold information where the rights or interests of third parties may be harmed. While the Tribunal rejected Cordero’s argument that the law is unconstitutionally vague and places too great a limit on the constitutional right to information, the Tribunal did rule that in order to deny access to public information, the third party must demonstrate specific interests that will be harmed by disclosure. The Tribunal emphasized that public agencies cannot withhold information unilaterally because this would allow requests for information to be denied arbitrarily. Instead, agencies must first consult with or receive objections from a third party before denying information on the basis of harm to that third party’s legitimate interest. With the constitutional question resolved, the Tribunal sent the case back to the Appeals Court of Valparaiso for its judgment to be entered.
The case, decided before Chile passed the Law on Transparency and Access to Information, was the first to interpret the Constitution's protection of right to information. Interestingly, even though the Inter-American Court of Human Rights had issued its landmark judgment in the Claude Reyes case against Chile nearly a year earlier (in September 2006), the Court did not refer to that case.
The Justice Initiative submitted written comments to the Tribunal. The brief describes the main principles that govern access to sensitive commercial information under international and comparative law and practice. It argues that third party (private) information held by the state should be disclosed, absent a clear showing of harm to legitimate commercial interests. Such harm should be weighed against the public interest in transparency: for example, when public health or the financial integrity of government operations is at stake, a prevailing public interest should require disclosure of certain private information, even if sensitive.
Judgment of the Court.
Written Comments (Open Society Justice Initiative) (also in Spanish).