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Italy: Legislation to Combat Corruption and Promote Transparency

(July 6, 2016) On June 23, 2016, new legislation on the fight against corruption and the promotion of transparency entered into effect in Italy. (Legislative Decree No. 97 of March 25, 2016, Review and Simplification of Provisions on the Prevention of Corruption and Promotion of Transparency, Correcting Law No. 190 of November 6, 2012, and Legislative Decree No. 33 of March 14, 2013, Issued in Accordance with Article 7 of Law No. 124 of August 7, 2015 on the Matter of Organization of the Public Administration (L.D. No. 97), GAZETTA UFFICIALE No. 132 (June 8, 2016), NORMATTIVA (in Italian).)

The new legislation specifies the right of citizens to access data and documents held by public agencies, subject to legally relevant public and private interests. (Id. art. 3(1).) “Public agencies” encompass public economic entities, professional organizations, government-controlled corporations, certain private organizations, and entities and foundations with a balance sheet higher than €500,000 (about US$555,250). (Id. art. 3(2).)

Disclosure of Information in the Context of Anti-Corruption Investigations

In compliance with certain administrative requirements, the National Anti-Corruption Authority may identify the data and information that are subject to mandatory publication in a summarized manner, in order to reduce the burden on individuals whose private information might be compromised. (Id. art. 4(1)(b).)

Creation of Internet “Public Money” and “Transparent Administration” Sites

Pursuant to the goal of achieving transparency in the use of public funds, the law charges the Agency for Digital Italy, jointly with the Ministry of the Economy and Finance, with the creation of an Internet site called “Public Money,” which will allow access to data concerning payments made by public agencies. (Id. art. 5(1).) In addition, every government agency must, on its institutional website, create a section called “Transparent Administration,” in which all information related to payments made by the agency will be made available and which will allow free consultation by citizens. (Id. art. 5(2).) The citizens’ right to access documents from public administrative agencies encompasses the right to request a copy of those documents when they have not been published. (Id. art. 6(1).) The goal of the publication on institutional sites of data and information related to holders of political offices or positions and to administrative agency executives is to attain public transparency while respecting personal data protection rules. (Id. art. 7(2).)

 Access to Information and Third Parties

Except in cases where the publication is mandatory, the public agency that receives a petition for access to data and information must request input from persons who could also be interested in accessing such information (“counterparties,” controinteressati). (Id. art. 6(5).) This “civic access procedure” must be concluded within 30 days, and any refusals must be based on sound reasons. The official responsible for the prevention of corruption and transparency may request information about the outcome of the request from the agency in question. (Id. art. 6(6).)

In the case of a denial of a petition for access to information, the petitioners may appeal to the officer responsible for the prevention of corruption and transparency, who must issue a decision within 20 days. (Id. art. 6(7).) If the agency involved is a regional administrative agency or a local entity, the petitioner may submit a request to the locally competent public defender (akin to an ombudsman). (Id. art. 6(8).)

When documents are published, the public authorities must ensure that all personal data that is irrelevant, unintelligible, or sensitive or that pertains to a judicial case be excluded from such publication. (Id. art. 7(4).)

Publication of Other Information Concerning Public Officers

The legislation contains detailed provisions referring to the publication of information concerning new holders of political offices. (Id. art. 13(a)(1-quinquies) & (d).) These publication requirements also apply to information about persons who provide consulting services to government agencies. (Id. art. 14(1)(a).)

Publication of Information by Public Companies

The law establishes publication requirements for companies under public control and for companies under the system of “extraordinary administration” (i.e., big companies subject to a special management regime entrusted to an Extraordinary Commissioner) other than those registered in stock markets.  The requirement covers a broad range of information concerning, for example, collaborative work and consulting or professional services, including arbitration services that are rendered to them. (Id. art. 14(2); Stefania Pacchi, Amministrazione straordinaria delle grandi imprese in crisi [Extraordinary Administration of Big Companies], TRECCANI.IT (2012).) The National Agency for the Administration and Destination of Assets Sequestered and Confiscated from Organized Crime must also publish on its institutional website information about work assignments entrusted to outside technicians and other qualified persons. (L.D. No. 97, art. 14(2).)

Disclosure of Information on Public Employees and Agencies

Public agencies must publish the criteria applied for the evaluation of the performance of public employees, including the parameters governing awards and incentives. (Id. art. 19(1)(a).) Public agencies must also publish their accounting balances or budgets, including a breakdown of expenses and payments for each type of work, good, or service they provide. (Id. arts. 27(1) & 33 (1)(a).) In addition, public agencies must publish information on the programming of public work projects, as well as the unit costs and performance indicators for ongoing or concluded projects. (Id. art. 32(1)(b).)   The law establishes penalties for public authorities who fail to make the required publication in the timeframe and form established by its provisions. (Id. art. 38(1)(b) & (c).)  

National Anti-Corruption Plan

The law mandates the approval of a National Anti-Corruption Plan, established for a three-year period by an inter-ministerial committee; the plan must be updated annually. (Id. art. 41(1)(b).) Such plans set the guidelines according to which other public agencies must prepare their own tri-annual anti-corruption plans. The guidelines in the Plan must refer to the principles, remedies, objectives, risks, timelines, and methods for the implementation of measures for combating corruption. (Id.)

Anti-corruption plans must identify the person appointed as the one responsible for the prevention of corruption and for transparency and provide for the necessary administrative structure to facilitate compliance with that function. (Id. art. 41(1)(f).) The preparation of anti-corruption plans may not be entrusted to persons not employed by a public administrative agency. (Id. art. 41(1)(g).)

In addition, the law provides that an independent evaluation body must verify that anti-corruption plans are consistent with the goals established in the agency’s strategic and management planning documents. (Id. art. 41(1)(h).)   To that effect, the independent evaluation body may request that the responsible officer provide all the information and documentation necessary to perform its independent auditing functions. (Id.)