Since the publication of our 1998 report on freedom of expression in Chile, the government has taken some important steps to promote the right of access to information possessed by public institutions, such as government ministries, public agencies, and companies whose activities affect the public interest. In societies with a long tradition of secrecy in public administration, such changes are not wrought overnight. Government officials, as well as the courts, tend to be suspicious when faced by an inquisitive press and citizen's groups probing for facts. In Chile, officials still retain a good deal of discretion in deciding to hold information confidential. Moreover, numerous laws still impose restrictions on the right to know, particularly in regard to criminal investigations in the courts. Such restrictions have even graver effects when they are not clearly delineated, since they may result in legal reprisals against journalists who unknowingly cross the line, as was the case of Paula Afani, discussed below. Even less secure is the right of ordinary citizens, or members of civil society groups, to have access to official information.
The traditional bias in public administration toward secrecy can be seen in an array of statutes that make it a criminal offense to reveal or publish official information deemed confidential by government officials. These include Article 246 of the Penal Code, which prohibits public officials from revealing secrets or confidential documents, regardless of the intention or effect of the revelation; the Code of Military Justice, which imposes even harsher penalties on personnel who disregard the military code of silence on institutional matters; Article 74(Bis B) of the Criminal Procedure Code, which prohibits the police from divulging information about criminal inquiries in progress; Article 19(2) of the Law on Abuses of Publicity which prohibits unauthorized disclosure in the media of secret "measures, agreements or officials documents (disposiciones, acuerdos o documentos oficiales), or secret documents which form part of a criminal investigation, a norm which goes back to 1925;95and Article 25 of the same law, which allows judges to prohibit the publication of any information about criminal investigations in progress. These so-called reporting bans reached their apogee under the military government but have continued to be imposed, with less frequency, until the present.
Successive democratic governments have stated their commitment to end this culture of secrecy. They consider that the need for transparency and openness in public administration is an integral part of a governmental campaign against corruption, which is seen as a priority by all political sectors. The Press Law currently in Congress would repeal the Law on Abuses of Publicity, thus ending "reporting bans." It contains provisions to protect access to information and the confidentiality of journalists' sources.
In April 1994, President Frei established a Commission on Public Ethics, composed of important political figures, jurists and academics, whose proposals were incorporated the following year into a bill on Honesty in Public Administration. Importantly, Article 7 of the bill established the principle that "the acts of the organs of public administration are public, apart from the exceptions established by law."96 The proposed legislation was accompanied by another bill on Access to Administrative Information, which defined procedures for gaining access to official documents, the circumstances in which access could be refused, and procedures for redress in case applications were ignored or rejected. These bills did not pass, since the government decided instead to incorporate many of their norms as amendments to the main statute governing public administration.97 This amended statute entered into force on December 14, 1999.
The new law establishes the public right to know and the circumstances in which access may legitimately be refused. According to Article 11(Bis):
the only causes by virtue of which access to documents or information required may be denied are confidentiality or secrecy established in legal provisions or regulations; circumstances in which their publication may prevent or obstruct the proper functioning of the office of which the information is requested; the properly lodged opposition of third parties referred to or affected by the information contained in the requested; circumstances in which the revelation or provision of the documents or information may sensibly affect the right or interests of third parties, according to the reasoned opinion of the official in charge; and circumstances in which their publication may affect the security of the nation or the national interest.98
These provisions are an important advance in establishing in principle that an official who denies a request for information can be held responsible, rather than, as in the past, requiring the person who solicits information to convince the official why he should have it. Civil liberties groups in Chile, however, have expressed concern that the "proper functioning" of the institution or office concerned is likely to be interpreted expansively by officials as a basis for denying information, and could be difficult to challenge in court. Civil rights lawyers, however, stressed to Human Rights Watch that the new legislation needed to be tested over time and jurisprudence favoring the right to access consolidated step by step.99
This is likely to be a difficult and arduous task, for politicians and officials are accustomed to their exclusive domains. Genuine respect for an inquisitive public is different from lofty pronouncements about public access. This was shown clearly in the Trillium case, currently before the Inter-American Commission on Human Rights, in which the government Foreign Investment Committee failed to respond to a request from Terram, a non-governmental ecology group, for information about investment by the U.S.-based Trillium Forestry Company in a questioned logging project. The information denied concerned the basis on which the Foreign Investment Committee had decided on Trillium's suitability for the project. In July, 1998, the petitioners applied for a protection writ, which would have required the government to divulge the information at issue, from the Santiago Appeals Court. The judges declared that it was "manifestly without basis" and ruled it inadmissable. The Supreme Court confirmed the decision.
In its reply to the Inter-American Commission, which Human Rights Watch has reviewed, the Ministry of Foreign Affairs considered that the information to which Terram was denied access "directly affected the way in which the Committee exercises its attributions" and was therefore properly held confidential. Moreover, the government criticized Terram for arrogantly "conferring on itself watchdog powers which are not recognized in our legal system," these being exclusively the function of the Chamber of Deputies.100 The sense of these arguments is that information concerning the workings of an official body may only be granted to the legislature. If this rule were applied generally, it would deny journalists, as well as the general public and civil society groups, the information necessary to exercise their own right of criticism, independent of their elected representatives.
International norms protect freedom of expression and information for everyone regardless of their status or attributions. They do not require that those who seek information must justify their reasons for doing so. By seeking to restrict and weaken public access to information, the government's position on this case runs counter to the principles behind its current policies on the issue. As President Frei expressed it in the preamble to the bill on Access to Administrative Information:
The transparency we advocate means that the administration of the State must open its doors to the control of the people, allowing the citizenry access to the documents in its power.101
One of the persistent demands of the Chilean journalists' union has been to restrict the legal denomination of "journalist" to those holding a professional qualification. The draft Press Law, for example, limits the legal definition of "journalist" to those holding a university degree from a recognized journalism school. It also explicitly limits the right to withhold the identity of sources to journalists so defined, journalism students who have completed their courses or are on practice apprenticeships, newspaper director and editors, and foreign correspondents.
This limitation of the right to maintain the confidentiality of sources to those holding a journalism degree is unjustifiable, in Human Rights Watch's view, since this right exists to safeguard the public's right to information about matters of public interest, which is not served exclusively by any professional group. As Professor Dirk Vorhoof has pointed out:
It is to be emphasized that it is not the profession of journalist as such which is an important factor in the examination of the pressing social need of a restriction or penalty. It is rather the journalist's function, and his participation in imparting information to the which amplifies the protection of his freedom of expression within the scope of Article 10 of the (European) Convention.102
Nor are the rights and responsibilities of journalists who inform the public about matters of public interest adequately protected by existing legal norms. One of the most sensitive areas has been the confidentiality of criminal investigations. In common with other countries with an inquisitorial judicial process, Chilean legislation does not allow the public access to the evidence gathered in the early stages of a criminal inquiry. Police, judges and court officials are bound by law to respect the so-called secrecy of the investigation (secreto de sumario) until the judge declares the inquiry closed and allows the parties access to the evidence gathered, at which point the trial per se, or plenario, begins.103
Article 19(2) of the Law on Abuses of Publicity extends the prohibition to anyone who "knowingly publishes . . . documents which form part of an investigation which has been ordered to be kept in a state of secret investigation." Journalists are, therefore, obliged to respect the confidentiality of criminal investigations if the judge imposes the secrecy rule.
On top of this protection, Chilean law allows judges, at their own discretion, to ban reporting altogether on a case under investigation.104 It is now widely recognized in Chile that this so-called reporting ban (prohibición de informar) far exceeds what is reasonable to protect confidentiality in police investigations. Judges abused it repeatedly during the military government, and all political parties as well as press institutions, have harshly criticized it.105 The proposed Press Law would dispense with these reporting bans, and would protect journalists from being obliged to reveal their sources, if in receipt of leaked information about criminal investigations, with the exception on those involving terrorism or drug-trafficking. Currently, however, courts continue to impose reporting restrictions.106
When the secrecy rule is breached, journalists may be harried by exasperated public officials trying to discover the source of the leak. The case of Paula Afani Saud, a reporter for the newspaper La Tercera who faces a possible five-year prison sentence for violating the secrecy of a criminal investigation, is an example.
In June 1998, Afani wrote a series of articles in La Tercera and La Hora about a high-profile investigation being conducted by the Council for the Defense of the State (CDE) into a drug-trafficking and money-laundering conspiracy, which became known as "Operation Ocean." The articles included testimony by former members of the criminal group who were interviewed in prison in the United States by Chilean police officials. The defenseattorney of a Chilean businessman implicated in the conspiracy, Manuel Losada, lodged a criminal complaint for breach of the secrecy of the investigation. At the end of the month, Judge Marcos Felzensztein of the Sixth Criminal Court of Valparaíso applied a 120-day reporting ban to the case.107
For its part, the CDE argued that the information revealed by Afani could wreck its investigation as well as endanger the lives of the witnesses concerned. It immediately tried to discover the source of the leak, requesting the Valparaíso judge in charge of the case to investigate the courts and the police and to interview Afani, among others. But despite threats of legal action and intense pressure over several weeks, she refused to reveal her sources. On January 18, 1999, investigations police, acting on the judge's orders, arrested her and took her to Valparaíso, where she was held for several hours and interrogated. Afani again refused to reveal any names on grounds of professional ethics. Police searched her home and her work-station in La Tercera's Santiago office but they left empty-handed.
At the time of this writing (February 2001), Afani was still facing trial proceedings. In one case, based on the original denunciation of Losada's lawyer, she was charged with breaching the secrecy of a criminal investigation (secreto del sumario) and of violating the above-mentioned norm in the Law on Abuses of Publicity. In addition, on April 28, 2000, the CDE asked that she be prosecuted for violating the secrecy of a criminal investigation under the Law against Illegal Drug-Trafficking.108 This latter crime carries a maximum five-year prison sentence for which suspension of sentence is not applicable.
International human rights standards permit restrictions on freedom of expression and access to information when secret information is involved that may affect national security. The effectiveness of criminal investigations or the security of witnesses may also constitute grounds, in exceptional cases, for restricting the right to inform or be informed.109 However, as in every case in which other social interests conflict with the right of access to information, restrictions must be subject to the test of necessity.
The legal action against Afani appears to have been motivated by her refusal to name her sources. Had she agreed to do so, it is likely that the prosecution would have been directed at them, not at her. No official of the CDE, of the courts, the police or the prison service has been named as co-defendant in the case, which makes the prosecution of a single journalist all the more striking.
Human Rights Watch has been informed that there is no law in Chile specifically prohibiting journalists frommaking public information derived from criminal investigations in progress.110 To require journalists to be custodians of official secrets is to pervert their essential function in a democratic society. We know of no other case in which a journalist has been prosecuted for violating the secrecy of the sumario. In this respect, the Afani case establishes a troubling precedent.
The protection of sources from which journalists derive information is considered in legal systems across the world to be a mainstay of press freedom. Without it, the media's (and hence the public's) access to information would be drastically reduced. The European Court of Human Rights has held that "protection of journalistic sources is one of the basic conditions for press freedom," and that mandatory disclosure is unacceptable unless "justified by an overriding requirement in the public interest." The Declaration of Chapultepec, signed by most heads of states in the hemisphere, and by former President Eduardo Frei in March 1997, reaffirmed this principle. Point 3 of the declaration stated: "No journalist may be forced to reveal his or her sources of information."111 The "Declaration of Principles on Freedom of Expression in the Americas" approved by the Inter-American Commission on Human Rights on October 19, 2000, endorsed it too.112
The eventual approval of the pending Press Law would probably release Afani from prosecution, since the new law protects the right of qualified journalists to protect their sources and repeals the secrecy provisions of the Law on Abuses of Publicity. It may be expected that Afani would, therefore, benefit from the principle of the most favorable law. Until that moment, however, she remains at risk of a conviction that would violate fundamental principles of freedom of expression.95 See Juan Pablo Olmedo and Ciro Colombada, "El derecho a acceso a información pública," Centro de Investigación, Facultad de Derecho de la Universidad Diego Portales, 1999, pp.13-16. 96 Translation by Human Rights Watch. 97 The full name of the legislation is the Organic Constitutional Law of General Bases of the State Administration (Ley Orgánica Constitucional de Bases Generales de la Administración del Estado), Law No. 18,575. 98 Translation by Human Rights Watch (our italics). 99 Human Rights Watch interview with Juan Pablo Olmedo, Santiago, August 11, 2000.
100 Case No. 12.108, communication by Juan Gabriel Valdés, Minister of Foreign Affairs, August 13, 1999.
101 Message No. 387-330, January 12, 1995, p. 1 (translation by Human Rights Watch). As noted above, the bill was superseded by the public administration reform.
102 Prof. Dirk Voorhoof, "Critical Perspectives on the Scope and Interpretationn of Article 10 of the European Convention on Human Rights" (Strasbourg, The Council of Europe Press, 1995), p. 49 (our emphasis).
103 A major reform of penal procedures soon to become law will abolish the secreto del sumario, making information on the investigation available to the parties.
104 Article 25 of Law No. 16,643 on Abuses of Publicity.
105 See Human Rights Watch, The Limits of Tolerance, pp. 64-69.
106 The most recent example was in February 2000, when a judge in Concepcion, Flora Sepúlveda, imposed a one-month blanket reporting ban on a sensational case involving the disappearance of a young man from a discotheque.
107 Ibid, p. 67. It was finally rescinded in a notable decision by the Valparaíso Appeals Court, which noted that "full observance of freedom to emit opinions and to inform without prior censorship is an integral requirement of the real functioning of a democratic state and the rule of law, and when it is exercised in relation to judicial matters it becomes the most expedite means whereby all the citizens may control the way their judges carry out the important function entrusted to them." El Mercurio, July 31, 1998 (translation by Human Rights Watch).
108 Article 74 of the Code of Penal Procedure; Article 19(2) of the Law on Abuses of Publicity; Article 34 of the Law against Illegal Drug Trafficking. Article 34 allows the judge to order that an investigation be kept secret if he or she considers that " its divulgation might affect the success of the investigation or the security of undercover agents, informers, witnesses, forensic experts or, in general those who cooperate effectively in the investigation [...] The violation of the secrecy of the investigation will be punished with the penalty of imprisonment." The prosecution of Afani indicates that, in the official view, journalists are included in this prohibition.
109 See generally Article 13 of the American Convention on Human Rights, which allows such restrictions on freedom of expression that are necessary to ensure "respect for the rights or reputations of others," or "the protection of national security, public order, or public health or morals."
110 Human Rights Watch interview with Ernesto Galaz Cañas, Legal Director of the General Secretariat of Government, Santiago, July 20, 2000.
111 Available on the Internet at http://www.sipiapa.org/projects/chapul-declaration.cfm (January 2001).
112 Approved by the Inter-American Commission on Human Rights at its 108th period of sessions, available on the Internet at http://www.cidh.oas.org/declaration.htm (January 2001).