From: Ioana Avadani
From: Justice Initiative
Sent: Friday, July 15, 2005 9:57 PM
Subject: First Freedom of Information Case Reaches Americas' Court
Contact: Darian Pavli +1 646 247 4504 (cell phone)
FIRST FREEDOM OF INFORMATION CASE REACHES AMERICAS' COURT
Inter-American Commission Finds Chile in Violation of Human Rights Charter
New York, July 15, 2005- The Inter-American Court is to consider the first case
involving the right to access public information in its 26-year history. The
case was referred this month to the Court by the Inter-American Commission on
Human Rights, an auxiliary body of the Court, following the Commission's April
2004 finding that Chile had violated the American Convention on Human Rights.
The case originated in a May 1998 request by the Terram Foundation, a Chilean
environmental NGO, for information about a major logging undertaking known as
the Condor River project. The requestors asked the Chilean Foreign Investment
Committee - a government body mandated to assess foreign investment proposals
in Chile - to provide information on the environmental and general track record
of Trillium Ltd, the company managing the Condor River project.
Terram's request was ignored by the Committee and subsequent appeals were
summarily dismissed in Chile's courts. In December 1998, a number of South
American rights groups filed a petition with the Inter-American Commission on
behalf of Terram.
In April 2004, the Inter-American Commission issued a preliminary report on the
case concluding that Chile had violated the applicants' rights under Article 13
of the American Convention, guaranteeing the right to access public
information. The Commission urged Chile to remedy the situation within 60 days.
Following Chile's failure to comply within that period, the Commission referred
the case to the Court for adjudication.
In its April preliminary report, the Commission affirmed a number of general
principles regarding freedom of information:
. The free expression rights guaranteed by Article 13 of the American
Convention include a general right to access state-held information and a
corresponding obligation for states to ensure information availability. This
right is subject to limited exceptions, which must be consistent with the
principle of the "presumption of openness."
. Article 13 requires that states define expressly in national law both the
presumption of openness and the limited grounds for denying access to official
With respect to the facts of the case, the Commission found that:
. At the relevant time, Chilean law did not define restrictions on the right of
access to information, giving government officials unlimited discretion to
grant or deny requests for information.
. Chile failed to show that it was "necessary" to withhold the requested
information in order to protect any of the legitimate interests provided for in
Article 13. In particular, the Commission dismissed the state's claim that the
information at issue was protected by commercial confidentiality, finding that
the state had not demonstrated any substantial harms in that respect greater
than the public interest in disclosure.
. Chile did not grant the applicants an effective remedy for the violation of
their right to access information.
. Due to its failure to "adapt its internal legislation in a manner that
guarantees" the right of access to information, Chile violated its obligations
under Articles 1 and 2 of the Charter to "give effect" to the right.
The Commission asked Chile to bring its domestic legal order in conformity with
its Article 13 obligations regarding access to information, and to adopt the
measures necessary to guarantee effective access to official information for
its citizens. The state was also asked to "publicly divulge" the information
requested by the petitioners, and to grant them adequate reparation.
On February 23, 2005, the Justice Initiative and three other groups - ARTICLE
19, Libertad de Información México (LIMAC), and the Lima-based Press and
Society Institute (IPYS) - filed jointly a "friend of the court" brief with the
Inter-American Commission in support of the applicants' case. The brief is
available at: www.justiceinitiative.org/db/resource2/fs/?file_id=15384
The Open Society Justice Initiative, an operational program of the Open Society
Institute (OSI), pursues law reform activities grounded in the protection of
human rights, and contributes to the development of legal capacity for open
societies worldwide. The Justice Initiative combines litigation, legal
advocacy, technical assistance, and the dissemination of knowledge to secure
advances in five priority areas: national criminal justice, international
justice, freedom of information and expression, equality and citizenship, and
anticorruption. Its offices are in Abuja, Budapest, and New York.
Al. Cinematografului 2, bl. H3, sc. 2, ap. 27
810271 Braila, tel. 0740.026091
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