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CHILE: Transparency Law Opens Access to Information

Daniela Estrada

SANTIAGO, Apr 20 2009 (IPS) - The Law on Transparency and Access to Public Information came into force in Chile on Monday. Although experts say there is room for improvement, and they foresee some difficulties in its implementation, they do not hesitate to describe it as a useful step forward.

The transparency law “represents, beyond any doubt, a deepening of the democratic process, because tools of this sort favour the position of citizens vis-à-vis the state apparatus,” Moisés Sánchez, head of the non-governmental Fundación Pro Acceso (Pro-Access Foundation), told IPS.

Law 20,285, “on transparency of the civil service and access to information on the state administration,” is entering into force eight months after being approved by parliament – a short period of time given the complexity of its implementation, according to experts.

It applies to ministries, regional governments, provincial governorships and municipalities, as well as all other state services and companies. The armed forces, police and public security forces are also covered.

Its two main principles are “active transparency” and “passive transparency.”

Active transparency means the administrative bodies of the state must make available to the general public a long list of information, to be posted permanently on their web sites and updated at least once a month.

This includes sensitive information like staff salaries, fees, contracts awarded for the supply of goods and services, and transfers of public funds to individuals and companies.

The strategy, allocated funding and access criteria for subsidy programmes and other benefits awarded by government bodies, as well as the list of beneficiaries of current social programmes, must also be made public.

Passive transparency, on the other hand, is the term used for the right of all citizens to request and receive information contained in minutes, resolutions, files, contracts and agreements, and to all information reports that have been paid for from the public purse.

The information requested must be provided within 20 working days. Dissatisfied citizens can complain to the Transparency Council, an autonomous body under public law created to ensure enforcement of the law.

The legislative and judicial branches, the Office of the Comptroller General of the Republic and the Central Bank are only required to carry out active transparency, and to develop their own internal mechanisms to handle requests for information. “They are not subject to oversight by the Transparency Council,” Sánchez said.

Those within the state apparatus who fail to comply with the law will be fined between 20 and 50 percent of their salaries and be temporarily suspended from their posts.

“It’s a good law,” Silvana Lauzán, an expert at the University of Chile’s Human Rights Centre, told IPS.

The law can “contribute to strengthening public debate on policies, to more and better public monitoring of the authorities, to defending individual and collective rights, to discouraging corruption and to preventing abuse of power and authoritarianism,” she said.

Lauzán predicted major changes on different fronts, although she warned that “laws cannot change the way things are done overnight.”

Among the shortcomings of the law, she mentioned the reasons for refusing to provide information and the fact that passive transparency does not apply equally to all three branches of the state.

The law stipulates that secrecy and confidentiality can be invoked when releasing the information would affect national interests, the rights of persons, the prosecution of crimes, defence and foreign policy, or territorial integrity, or would divert too many institutional resources, among other reasons.

According to Pro-Acceso’s Sánchez, the argument about resources distances the law from international standards, because complex requests for information that are nevertheless in the public interest might be turned down.

At bottom, “all the reasons for not releasing information are open-ended and vague, so the Transparency Council will have to be very rigorous and make sure they are used as sparingly as possible,” Sánchez said.

“The access system may have initial shortcomings at many stages of the process. The key factor is political will and determination to overcome the challenges, and on the part of the organisations and persons who request information there should be a certain amount of understanding and willingness to cooperate in the early stages,” said Lauzán.

“Implementation will be a long-term process,” Sánchez said. “The bodies that are most prepared for it are those linked to the economy and the international stage,” including the superintendencies, or regulation and oversight bodies, since they have more complete databases.

In contrast, ministries that provide social services and transfer large quantities of funds, such as the Education and Health Ministries, may have greater difficulties. Municipalities, which tend to face many demands from ordinary citizens, are also likely to struggle.

“The municipalities have structural problems related to their financial position, their size, and the precariousness of their human resources,” Sánchez said. For instance, close to 20 percent of them do not have a web page.

Aware of these problems, the Chilean Association of Municipalities has asked for application of the law to be gradual in this sector, and for special consideration for rural municipalities.

Chilean President Michelle Bachelet said on Apr. 16 that it would be regrettable if some sectors were to seize on the law for the purpose of making instant capital by creating scandals here, there and everywhere.

The meaning of her remarks was clearly linked to the fact that there will be presidential and parliamentary elections this year.

Bachelet also said that civil society organisations, trade unions and the media would be the chief beneficiaries of the new law. “But using it requires a minimum level of civic responsibility,” she added.

According to the president of the Chilean Journalists Association, Abraham Santibáñez, “the area that should benefit most from this law is investigative journalism, because it will allow access to a great deal of information that was not available before.”

But Santibáñez told IPS that unfortunately, most Chilean media no longer spend money on investigative reporting. “It is likely that many topics will be brought up by civil society investigations, rather than by newsrooms,” he said.

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