On November 11, 2019, Law No. 21.180, called “Digital State Transformation”, was published in the Official Gazette of the Republic of Chile.
This rule contains, mainly, modifications to Law No. 19.880 that establishes the administrative procedure of general application, without prejudice to other legal provisions. We must bear in mind that, in spite of their name, the modified regulatory bodies refer to the organs of the State Administration, this being their true scope of action.
In fact, as a precedent we have Law No. 20.886, published in the Official 18 Journal of December 2015, which modifies the Code of Civil Procedure to establish the digital processing of judicial proceedings, being its scope the activity of the courts of Justice.
Preliminarily, we must make a comment of practical utility: with this reform, the law of administrative procedures contains everything related to the electronic or digital in the same legal body, instead, its equivalent of the judicial procedures although it makes the respective modifications to the Code of Civil Procedure and Organic Code of Courts, leaves the most substantive aspects in the original norm, dispersing the precepts related to the same matter.
The rule we discussed establishes multiple modifications to various provisions of the aforementioned law, largely adaptations that add or accommodate references to electronic procedures. On the other hand, there are some articles that address informatics matters that deserve a more detailed comment.
First, we find Article 16 bis, a new provision that establishes the general principles related to electronic procedures. We will examine each of them below:
a) Technological neutrality: This statement refers us immediately to Article 1º of Law No. 19.799 on documents and electronic signature, and implies that the technology used in the procedures cannot be established as exclusive and exclusive in its use, that is, as the technology is constantly change, if this improvement cannot be prevented, the replacement of the obsolete one. The procedure can be the same, the practices can be stable, but the technology that supports this activity cannot be frozen in time. It is noteworthy that the norm we discussed does not explain this principle.
b) Actualización: in the end it is a complement to the above, and imposes the obligation to update the Administration's platforms to the most modern technologies in order to provide better service to users and, also, the rescue of the information contained in late technologies for Avoid your loss. It is an important mention, since the technology advances rapidly and can mean that a lot of important information of the Administration is lost without being used. It can also be seen in article 2, letter e), of Law No. 20.886.
c) Functional equivalence: the equivalence of the electronic acts subscribed with electronic signature with the contents in paper support, is also an import from Law No. 19.799, in whose article 3º establishes the general norm and, in article 7º, the special norm for the organs of the State. In this case, we refer specifically to administrative acts, since Article 7º refers to “acts, contracts and documents” of State bodies. It is also mentioned in similar terms, in Article 2º letter a), of Law No. 20.886.
d) Fidelity: It is a procedural standard regarding the preservation and correlation of documents in the electronic file, seeking their fidelity, preservation and reproduction. It is expressed in similar terms in Article 2º letter b), of Law No. 20.886.
e) Interoperability: it implies the proper interconnection between the various organs of the Administration through its electronic means and that it is safe and expedited. It is a way of propensity to act jointly and in coordination of the organs of the Administration that, many times, cooperatively participate among them in administrative procedures. It is a technological requirement.
f) Cooperation: It refers to the interaction between the various organs of the State Administration must be done through the use of electronic means. It is the interaction from the point of view of the effective use of computer media. It is mentioned in Article 2º letter f), of Law No. 20.886.
Compared with its similar applicable to judicial proceedings, this law repeats the principles of functional equivalence and fidelity in almost the same terms, with the adaptations of the case. However, it also mentions the principles of technological neutrality and interoperability, which does not do its equivalent for court proceedings.
Regarding the principles of updating and cooperation, its similar judicial procedures have interesting notes. As for the update, the description made in the law on administrative procedures is much better since it explains what it consists of, and does not merge its content with interoperability, despite its obvious connection.
With regard to cooperation, the law on judicial procedures is more descriptive, since it gives content to the duty of cooperation when it states that it is intended “(…) Guarantee the interconnection and interoperability of computer systems and, in particular, the mutual recognition of electronic documents and the respective means of identification and authentication”.
To conclude this point, we must bear in mind that Article 5º of the Administrative Procedure Law is modified, adding to those principles of that matter those related to electronic media, which are developed in article 16 bis new that we have outlined. Further on, there are new provisions established by the commented law that present relevant aspects.
In effect, the new third paragraph of Article 9º establishes the rules of how communication between the various organs of the State operates. This rule, in turn, is complemented by the new article 24 bis, which states the hypothesis that the records that are sent from one organ to another containing sensitive personal data of the person concerned, must record certain background that the standard points. To proceed with the delivery of the information to the body that will finally resolve, it is established that the person of the interested party must give their authorization within the written request, as established in letter f) new of Article 30 of the law that alludes at the beginning of purpose of the data, according to Article 9º of Law No. 19.628 on data protection, restricting the use of said information only for the purpose of the procedure. During the transit of information, articles 7º and 11 of the aforementioned law, which establish the principles of confidentiality and security with respect to data, are applicable.
Another group of interesting provisions are those related to electronic documents. First of all, we find the new provisions of article 17 of the procedure law on the rights of persons before the Administration, in which new letter a) gives the authorized copy character to that obtained from the platform when it has a means of verifying authenticity. The new letter c) talks about the accompaniment of digitized paper documents or electronic documents in their origin "To the extent that its authenticity and integrity are stated". With these rules we also approach the concepts of Law No. 19.799 on documents and electronic signature.
Also, there are articles 18, 19 and 19 bis whose new provisions refer to electronic documents and the mandatory processing via electronic platform. Article 19 bis again makes a reference to the 19.799 law, and specifies the case of the paper document whose digitized copy is presented in the procedure. This being an electronic document not by origin, the provision of a regulation that serves to verify its authenticity is provided. It will be an interesting rule to review, especially because it would complement with regulatory status something that, in the case of the electronic documents themselves, is in legal hierarchy.
For its part, the new second subsection of Article 22 °, regarding the power of attorney to act before the Administration, refers to both the simple and advanced electronic signature. On this last point, it is necessary to comment. The end of the new provision in Article 22 states that “However, a document signed by advanced electronic signature or public deed will always be required when the administrative act in question produces effects that require solemnity of instrument or public deed”.
Here we must remember Article 7º of Law No. 19.799 that establishes the documentary equivalence of the acts, contracts and documents of the State bodies signed with electronic signature to those issued and signed on paper. Its second paragraph states that, in order to have the quality of a public instrument and produce effects as such, they must be signed with an advanced electronic signature. In sum, for an electronic administrative act to produce effects of a public instrument, it must be signed by an advanced electronic signature.
We must remember that in Chile there is no express legal classification of the administrative act as a public instrument, it is deduced from what is established in Article 193 ° of the Criminal Code, when it deals with the crime of falsification of public or authentic documents, in whose numeral 8º speaks of "official document", a reference that has been understood as made to administrative acts in general. In addition, if we consider what is established in Article 1699 ° of the Civil Code, when it defines a public instrument as the one authorized by legal solemnities by the competent official, many documents will fall into this category.
Therefore, if, as an interested party, I want to obtain from an electronic procedure, at least one terminal administrative act, I must present a power by traditional public deed, or, constituted by electronic public deed signed by an advanced electronic signature. This will generate a challenge for those who intend to initiate an administrative procedure and do not have easy access to that signature.
Finally, regarding the regulations to be issued, the law mentions the following:
- Joint regulation between the Ministries of the General Secretariat of the Presidency and the Treasury to regulate the submission of paper applications within the electronic procedure (art. 18, new fifth paragraph).
- Joint regulation between the Ministries of the General Secretariat of the Presidency and the Treasury to regulate the denial of delivery of paper copies within the procedure (art. 18, sixth paragraph new).
- Joint regulation between the Ministries of the General Secretariat of the Presidency and the Treasury to regulate the standards of electronic platforms on electronic procedures (art. 19, new seventh paragraph).
- Joint regulation between the Ministries of the General Secretariat of the Presidency, of the Treasury and of the Cultures, Arts and Heritage to verify the authenticity of the paper documents with their digitized versions (art. 19 bis, new third paragraph).
- Joint regulation between the Ministries of the General Secretariat of the Presidency, of the Treasury and of the Cultures, Arts and Heritage that authorizes not to digitalize paper documents (art. 19 bis, new fifth paragraph).
- Joint regulation between the Ministries of the General Secretariat of the Presidency, the Treasury and Justice Human Rights, on how to make notifications within the administrative procedure (art. New 46).
All regulations must be issued within a period of one year from the publication of the law, as provided in article 4º transitory.
Finally, in terms of its validity, this law will take effect after one hundred and eighty days have elapsed after the publication of the last regulation corresponding to the law, without prejudice to the gradual operation determined by the President of the Republic. In any case, the entire process must be completed within five years from the publication of the law (articles 1º and 2º transitory).
There is, therefore, a long period to verify how the new electronic administrative processing system will work.