Vance Center and City Bar File Amicus Brief on Freedom of Information in Chile

The Vance Center for International Justice and the New York City Bar Association have submitted an amicus brief to the Constitutional Tribunal of the Republic of Chile – Chile’s highest constitutional court – summarizing U.S. federal and state freedom of information laws.

The brief was prepared at the request of Fundación Pro Accesso, a Chilean non-profit, in connection with a case pending before the Constitutional Tribunal involving Chile’s newly enacted freedom of information law. The case involves a request by the City of Melipilla for access to certain e-mails sent to and from Chilean government e-mail addresses regarding government aid following the earthquake of February 27, 2010. The Constitutional Tribunal will address the constitutionality of Section 2, Article 5 of Chile’s Access to Public Information Law, which on its face requires the disclosure of government records.

Chile is the first South American country to deal with access to government e-mails as a transparency matter. This case is therefore highly significant both in Chile and as a precedent in neighboring jurisdictions.

The amicus brief provides an overview of how U.S. federal and state freedom of information laws have been interpreted regarding electronic communications, and provides a legal framework for promoting “the fundamental principle that citizens have a right to access their government’s public documents, while balancing the government’s ability to operate and privacy of governmental employees.” The brief also highlights the “strong presumption in favor of disclosure and clear trend in favor of public disclosure of government communications involving official business, whether or not those communications are made to or from government computer systems,” and urges the Chilean Constitutional Tribunal “to recognize similar principles” in order to “establish a fair and balanced framework governing access to information in Chile.”

Fundación Pro Acceso is an organization dedicated to promoting government transparency as a way of strengthening democratic institutions and human rights in Chile.  Over the past two decades, Chile has served as a regional model for good governance, and Fundación Pro Acceso has followed Chile’s democratic development closely to ensure its continued robust progress through advocacy work such as litigating this case.

The amicus brief was submitted on behalf of the City Bar by its Communications and Media Law Committee, Jonathan Donnellan, Chair; also on the brief were S. Todd Crider, a partner at Simpson Thacher & Bartlett LLP and Vice-Chair of the Vance Center Committee; David McCraw, a member of the Vance Center Committee and the City Bar’s Executive Committee; and Paul Sirkis, an associate at Simpson Thacher. The Spanish version of the brief was prepared by Jonathan A. Lieberman Fernández and Antonio Arias Etchebarne, an associate and international associate, respectively, at Simpson Thacher & Bartlett LLP.