As part of my work as a Fulbright scholar here in Santiago I’m looking at the impact of the landmark 2009 Transparency Law on investigative reporting.
I’ve written before about how the focus of my research has changed after I arrived here and found that my initial plan of doing a pre-and post-law analysis of content in the country’s leading news outlet was fundamentally flawed.
Instead, I’m taking the pulse of a range of folks who have been involved with the law.
Carlo Gutierrez, who heads the legal team of the municipality of Melipilla, is one of them.
We met briefly last week during our meeting with Melipilla Mayor Mario Gebauer.
Gutierrez was the point person for the municipality’s ultimately unsuccessful effort to gain access to emails that contained communication about how to distribute reconstruction funds after the devastating earthquake of February 2010.
I took the bus again to Melipilla, made my way to the city hall, and was directed to the back of a series of single-story buildings.
After asking three people for directions, I found Gutierrez’s modest office.
His name is printed on the wooden door. Neatly organized piles of paper sit like rows of cards in a solitaire game.
Gutierrez, who has a boyish face and longish black hair, arrived a couple of minutes after I did.
He had prepared a folder of material relative to the precedent-setting case he had filed and that led him eventually to present for the first time in his life before the country’s Supreme Court.
For Gutierrez, who had previously worked in the Interior Department, the initial request as well as the subsequent legal arguments, seemed straightforward.
The Transparency Law gives citizens the right to information by and about their public officials.
Digital communication like emails that are written from official accounts are covered by the law.
The subsecretary of the Interior, then, had a responsibility to supply the information he had requested on behalf of the community.
It didn’t go that simply.
Gutierrez explained that the agency answered neither the first nor the second request he sent.
When they eventually did answer, they refused to provide the information, citing privacy concerns of the public officials.
This struck Gutierrez as strange because they explicitly had asked for information from public officials written on public accounts about public business.
The community then appealed to the Transparency Council established by the law. It accepted the municipality’s argument and said that it had a right to the emails it had requested.
This time the government appealed to the regional court in Santiago. It’s the middle of three levels within the Chilean court system.
Gutierrez offered an oral argument before the court.
Again, he felt the issue at hand from a legal perspective was straightforward.
But the court of three judges found otherwise.
It held in favor of the defendants, accepting the argument that emails written by public officials on public accounts are not subject to the law.
On to the Supreme Court, the highest in the land.
Gutierrez again went and presented his oral argument. A lawyer for the Transparency Council joined him.
As opposed to the United States, where lawyers arguing before the Supreme Court have exactly 30 minutes and can be peppered at any minute by any of the nine justices, in Chile the lawyers have about an hour, Gutierrez said.
Also in contrast with the United States, where the questions the judges ask often can reveal the justice’s orientation in a case, Gutierrez explained that the lawyers only received a few questions, none of which sparked a meaningful exchange.
Earlier this year the court rendered its decision.
It held in favor of the defendants.
The decision was a bitter disappointment to Gutierrez, who felt that it was made for political reasons.
The court has reiterated its stance in ensuing cases filed by non-profit organizations like Ciudadano Inteligente. But what is perhaps of even graver concern is that Secretary General Cristian Larroulet is seeking to codify in law the restrictions that the court has placed through the cases on which it has ruled.
In Chile, legislation originates from the executive branch, then goes to the Congress and Senate for discussion and a vote before returning to the president to be signed.
As Secretary General, Larroulet has President Sebastian Pinera's ear and is doing his bidding. (Pinera already showed his anti-access position in 2011 when he sought to have members of the Transparency Council removed because of their support for releasing emails.)
Gutierrez holds some hope on the new government that he hopes would propose legislation that goes in a more, rather than less, open direction.
But he also is strongly concerned that the courts’ actions have struck a strong blow against the nation’s still fragile democracy.
Chile has been an authoritarian country in the past, Gutierrez said. A key tool in the transition to democracy is the access to information.
They have closed the window on that, he said, a trace of sadness crossing his face.
