Santiago

The Prosecutor General of Chile appealed two decisions by the Transparency Council which ordered the Ministry of Health to disclose all the information on the monthly use in Chile of Intensive Care Units and Intermediate Care Units, differentiating between vaccinated patients (with one, two and three doses) and unvaccinated patients, in the period between January and November 2021, as well as information regarding the deaths caused by COVID-19.

The Prosecutor General of Chile appealed two decisions by the Transparency Council which ordered the Ministry of Health to disclose all the information on the monthly use in Chile of Intensive Care Units and Intermediate Care Units, differentiating between vaccinated patients (with one, two and three doses) and unvaccinated patients, in the period between January and November 2021, as well as information regarding the deaths caused by COVID-19.

With regard to the former, by decision of 22 July 2022 (rol nº124-2022), the Court of Appeal of Santiago dismissed the appeal. At the outset, it considered that article 11 letters a), c) and d) of the Transparency Law, which regulates the right of access to information, enshrine the principles of relevance, openness or transparency and maximum disclosure, according to which all information held by the organs of the State Administration is presumed relevant. It also imposes that any information held by public institutions must be complete, timely and accessible, subject to a clear and precise regime of exceptions, which must be defined by law (specifically under Article 21 of the Law). Finally, any decision not to disclose information must be reasoned and the State has the burden of proving that the requested information cannot be disclosed. Based on such premise, the Court found that the appellant’s argument that the information whose processing is requested is contained in “critical databases for the management of the pandemic”, a process that is handled with “extreme care and high security standards, (…) with restricted profiles and users”, is merely assertive and does not fall within any of the exceptions expressly provided by the law. Hence, the State ultimately failed to prove the existence of any of the circumstances which would have justified a decision not to disclose the information regarding the monthly use of Intensive and Intermediate Care Units in Chile.

By a second judgment of 22 July 2022 (rol nº178-2022), the Court of Appeal of Santiago upheld the CPLT's decision ordering the Ministry of Health to provide detailed information on deaths caused by coronavirus. The Court first considered indisputable that the information requested is in the possession of the Ministry of Health and is of an eminently public nature. Second, it noted that the existence of grounds for confidentiality were only submitted by the State during the appeal proceedings before the case, thus breaching fundamental procedural rules which require the State to argue for the existence of any of the grounds for confidentiality during the administrative proceedings before the Transparency Council. The Court further found that the American Convention on Human Rights clearly imposes an obligation on the State to respect and promote fundamental rights, including that enshrined in Article 13 which includes the right to information, which the right of access provided for in the Law on Access to Public Information is a core corollary of.

Full text of the decision available at diarioconstitucional.cl es
Rol nº124-2022
Full text of the decision available at diarioconstitucional.cl es
Rol nº178-2022