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(Aug 20, 2010) By August 20, 2010, Spain's government is expected to have approved the final Bill on Transparency and Access to Public Information (Anteproyecto de Ley de Transparencia y Acceso de los Ciudadanos a la Información Pública). If approved by the country's Congress, the law will become effective in 2011 and would recognize for the first time the right of all Spanish citizens to access public information. (Miguel González, Una Ley Regulará el 'Derecho a Saber' de los Ciudadanos ante la Administración, EL PAÍS (Aug. 16, 2010), http://www.elpais.com/
The text of the bill is based on the right to access to information provided for under article 105.b of the Constitution. (The Spanish Constitution, https://www.boe.es/aeboe/consultas/enlaces/documentos/ConstitucionINGLES
.pdf (last visited Aug. 19, 2010).) Under this provision, it is not the citizen who has to justify an interest in accessing the information, but the government that has to prove and explain any refusal to provide it.
The bill considers any information produced or obtained by the public authorities while performing public duties to be public information. It is not limited to written documents, but also includes other materials, regardless of format. (Miguel González, Se Mantendrá el Hermetismo sobre Seguridad, Defensa y Politica Exterior, EL PAÍS (Aug. 18, 2010), http://www.elpais.com/
In order for the right to access information to be effective, the bill sets hard deadlines for the government to furnish the information requested. The requested office must provide the information within 30 days, which can only be extended for another 30-day period when the volume and complexity of the information requested make it impossible to meet the standard deadline. Once the first term expires without a response, the petitioner has 10 days to confirm the request. Thirty days after receipt of this confirmation, the petition would be considered accepted. This is a major change, because under the bill the silence of the administration is a positive silence, not a negative one as is the case at present. In other words, in the case of no response from the government, the petition will be considered accepted and not denied. (Id.)
If the petition is rejected, the petitioner is entitled to appeal to the court with subject matter jurisdiction over administrative matters or to seek an arbitration of the issue with the Spanish Agency on Data Protection (Agencia Española de Protección de Datos: https://www.agpd.es/portalwebAGPD/index-ides-idphp.php (last visited Aug. 19, 2010).)
All levels of government are required to publish directives, instructions, notes, or answers to questions that are related to the interpretation or application of the law. The central government is also required to publish the budgets of ministries and other public entities, with a description of line-item assignment of funds, so that the public can follow up on how budgets are implemented, together with economic and statistical data relevant to the use of public funds. (Se Mantendrá el Hermetismo sobre Seguridad, Defensa y Politica Exterior, supra.)
The government is aware that the level of transparency and easy access to public information is a well known standard indicator of the quality of a democratic system of government. This is not only useful to combat corruption, but also to fight mismanagement and inefficiency. The passage of this law would bring Spain up to speed with the rest of the European Union countries, which already have this type of instrument on transparency in place. The Council of Europe has adopted the November 2008 Agreement on Access to Official Documents, which was largely the inspiration for the Spanish Bill on Transparency and Access to Public Information. (Id.)
The bill guarantees the universal access to public information, but has a long list of exceptions, including drafts, notes, or internal communications; information that could affect national security and defense, foreign affairs, public safety, crime prevention and investigation, and criminal, administrative or disciplinary sanctions; and administrative authority of control and supervision. It also excepts information that might affect economic and commercial public interests; protection of the integrity of judicial proceedings; confidentiality, professional or intellectual and industrial property secrecy guaranteed under the law; the privacy of private life; and legitimate individual interests. (Una Ley Regulará el 'Derecho a Saber' de los Ciudadanos ante la Administración, supra.)
- Author: Graciela Rodriguez-Ferrand More by this author
- Topic: Freedom of information More on this topic
- Jurisdiction: Spain More about this jurisdiction
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Last updated: 08/20/2010