The concept of administrative openness and therefore the
right of access to public information includes elements of considerable legal
relevance for professionals working in Government Law, as well as for
companies, not for profit organisations, political parties and pressure groups
who have to interact with Governments in the course of their activities.
The demand for greater control over political
activities and management of public institutions and their resources has led to
a proliferation of regulations on the issue, along with a seemingly endless
flow of rights and obligations, both for the institutions that produce the
public information and for the private individuals that are interested in
gaining access to it as quickly and as cheaply as possible. This usually
involves the public obligation of guaranteeing administrative openness and
facilitating access to public information using electronic systems.
I consider that the above scenario requires some brief
legal reflections on the concepts, rights and obligations present in the
European legal system for over half a century, but which have only recently
been incorporated into state legal systems, including the Spanish one, as well
as their implementation within public institutions with a view to bringing Open
Government into effect as a new form of government to guarantee maximum
levels of administrative transparency and to facilitate access to public
information via open data and reuse.
Regulatory evolution of the European legal system
The European legal background and, in particular, the
legislation regulating access to information have become indispensable and of
special interest for understanding the origins of current regulations, which
come into line with the general currents on laws concerning the right to
access, especially those dictated by the Council of Europe and the Institutions
of the European Union as well as the case law dictated by the European Courts.
The main legislative
milestones of the EU produced in recent decades are especially the following:
The European Convention on Human Rights
The European Convention on
Human Rights (hereinafter the "ECHR") does not expressly recognise
the right of access to public information, which has led to frequent proposals
being made before the European Court of Human Rights (hereinafter the
"ECtHR") as to if said right should be included in article 10 of the
on the right to expression.
In 2004, the ECtHR concluded
that a general right of access to information and to administrative documents
could not be drawn from article 10 of the ECHR,
although it did consider that the lack of proportion of information could lead
to an infringement of article 8 of the ECHR, by virtue of which any person has
the right to respect for his or her private and family life, home and correspondence.
However, in 2006, the ECtHR
changed the case law criterion, by considering that access to public
information should in fact be
included in the area of access to public information foreseen in article 10 of
the ECHR, and deemed it necessary to carry out a study of the proportionality
between interference in freedom of information and denial of access to it.
Convention 205, of the Council of Europe, on access to
On 18 June 2009 the Council of
Europe Convention 205 was signed (hereinafter "Convention 205"),
which provided a pioneering and binding standard for European signatory States.
Special references is made in
the preamble of Convention 205 to the importance of openness in the activities
of official authorities and declares that the exercise of the right of access
to public documents provides a source of information to members of the public
holding said right,
who can therefore form an opinion of the state of society and official
authorities, thereby furthering the integrity, effectiveness, efficiency and
responsibility of public authorities.
It is therefore understood
that the documents in the hands of the authorities
are, in principle, public
and can only be withheld to protect other legitimate rights and interests. Based
on this idea, Convention 205 establishes minimum regulations, and leaves
considerable margin to the States for further specification.
It should be pointed out that
Convention 205 accepts limitations to the right to access to information
established by law, with the proviso that when there is a risk of legally
established interests regulated in article 10
being affected, and in any case they must respond to the criteria of necessity
Notwithstanding the foregoing,
Convention 205 regulates a series of general principles that should be
developed by States, by virtue of which they are required to establish two
types of complementary measures:
Complementary measures to inform the public
of their rights to access and the procedures for exercising them.
Appropriate measures to guarantee that
public agents have the necessary information to comply with said rights,
provide information about the material or activities within their scope,
effectively manage their documents so that they are easily accessible and
follow clear, pre-established procedures for conserving and destroying their
Convention 205 also provides
for active publicity measures to make all the public documents in their
possession available to all persons on their own initiative and whenever they
deem fit, so as to promote government transparency and efficiency and to
further the informed participation of the public in matters of general
Regulation (EC) 1049/2001, of 30 May 2001, regarding public
access to European Parliament, Council and Commission documents
The right of access by citizens to information held by
Community Institutions and Agencies was not originally included in the
Community legal system, therefore the decision to provide certain items of information
was left to the discretion of each Institution.
After the aforementioned first work performed by the
Council of Europe, the European Parliament called on the Community Institutions
and Agencies to define the right to information as a fundamental right of
European citizens and integrate it into Community Law.
As a result of this prior work, the European legal
system more precisely regulated the right to information and documentation held
by Community authorities.
This evolution is shown in the
legal milestones described below:
Treaty of the European Union or the Maastricht Treaty,
signed on 7 February 1992. It included Declaration number 17 on the right to
access to information.
Treaty of Amsterdam, signed on 2 October 1997. This
treaty recognised the constitutional right to access to information, and
enshrined the right of all citizens or residents of the Union to access to
documents of the Parliament, Council and Commission, in accordance with the
principles and limits that should be set by the Council within two years after
its coming into effect on 1 May 1999. It introduced article 255 into the
founding treaty of the European Community
and Declaration number 41.
Code of Good Administrative Conduct, approved by the
European Commission on 13 September 2000. Said Code was transferred to the
positive standards of each European Institution (Council, Commission,
Parliament and other Community Bodies and Agencies).
Charter of Fundamental Rights of the European Union
(hereinafter, “CFREU”), proclaimed on 7 December 2000. It enshrined the right
to access to documents as a binding fundamental right for the citizen in
As a development to said
fundamental right, the European Parliament and the Council approved by
co-decision Regulation (EC) 1049/2001, of 30 May 2001, regarding access by the
public to documents of the European Parliament, the Council and the Commission
(hereinafter, “R 1049/2001”), to which a joint Declaration of the same date was
The R 1049/2001 is based on
the principles of transparency, openness and proximity, participation,
democracy and respect for fundamental rights, as well as facilitating the
maximum possible access.
article 3 of R 1049/2001, the term documents is used in the widest possible
sense for the right of access to information, in other words, regardless of the
medium used (on paper, or stored on electronic media, sound, visual or
audiovisual recording), referring to subjects concerning the policies, actions
and decisions that are the competence of the Institution.
In view of
said principles, the right is configured with considerable scope, permitting
access even to preparatory documents and those for internal use, regulating the
processing of applications via a fast procedure (which must be resolved in 15
days) along with the possibility of lodging an appeal against this decision.
of access is held by all citizens of the European Union, as well as by any
legal entity or individual who resides or has a corporate address in a member
State. Other persons do not hold the rights and therefore Institutions are not
obliged to permit access, but have the power to do so under the limits and
conditions of article 4 of R 1049/2001.
addition, R 1049/2001 distinguishes between up to five categories of complementary
measures, which are as follows:
Information for the public (article 14): every State
should adopt the measures necessary to inform the public of their right, with
the cooperation of the States.
Inter-institutional committee made up of political
representatives of the three Institutions (article 15.2): their mission is to
discuss the issues raised by application of the Regulation, as well as to
examine access requests and resolve possible conflicts.
Training and responsibility of public employees with
regard to information material based on guides of obligations or codes of
conduct (article 15.1).
Annual reports for correct assessment and monitoring
of administrative actions (article 17).
Registry of documents (article 2.4): the documents
should be accessible to the public after application in writing, directly via
electronic means or via a registry, as a resource to guarantee the effective
exercise of the right to access.
Likewise, R 1049/2001
regulates the main instruments for facilitating and guaranteeing active
Public records (article 2.4).
The publication of documents in the Official Journal
of the European Union (article 13), and
Access to documents concerning legislative procedures
The Treaty on the Functioning of the European Union or
the Treaty of Lisbon
of access to documents in the hands of Community Institutions is currently
regulated in the Treaty of the Functioning of the European Union or the Treaty
of Lisbon, which was signed on 13 December 2007 and entered into force on 1
There is no regulation in
community law that is equivalent to R 1049/2001, applicable to member States, that
has the purpose of harmonising internal legislation on access to information.
However, it should be indicated that there are directives indicating access to
information held by state administrations, with regard to specific matters, the
most relevant of which are as follows:
Directive 2003/4/EC, of 28 January, on public access
to environmental information: regulates the exercise of this right and
establishes the exclusions and specific access procedures.
Directive 2004/35/EC, of 21 April, on environmental
responsibility with regard to the prevention and repair of environmental
damage: determines that citizens may apply to public administration for
information it possesses on environmental damage and on the means of
prevention, avoidance or repair of said damage.
Directive 2003/98/EC, of 17 November, on the reuse of
public sector information: sets out to facilitate access to information
generated by public institutions, of considerable interest to companies when
operating in their fields of activity, and contributes towards economic and
Directive 2014/24/EU of the European Parliament and
Council, of 26 February 2014, on public contracting and by which Directive
2004/18/EC is repealed, also contains regulations on access to information and
Directive 2006/123/EC, of 12 December, on services in
the internal market: it recognises the right to quality from public services
provided by electronic media and to obtain information about the service
Convention of the Council of Europe on access to public
The Convention of the Council
of Europe on access to public documents, approved by the Council of Ministers
of the Council of Europe on 27 November 2008 and open to accession by the
member States from 18 June 2009,
is based on the common practices and experiences of part of the member states
of the Council of Europe.
Signing this convention
implies the binding subjection to a set of minimum standards
for the regulation of access to public information and is characterised by a
- From a collective perspective: it is a
key factor in guaranteeing transparency and good governance of public bodies,
it strengthens the trust of citizens in institutions and encourages their
- From an individual perspective: the right
of access is essential for personal development and the exercise of the
fundamental rights of persons.
The most relevant aspects of the Convention are as
of the right of anyone, without discrimination of any kind and without having
to prove any particular interest, to access to public documents held by public
that the access applications and access to documents do not imply any cost,
although the person applying for the information may have to pay the cost
generated by the service or obtaining copies.
of establishing a limited list of exceptions, subject to criteria of public
interest, if and when said limits are provided for by a law and are necessary
in a democratic society and proportional to the ends of protecting other
legitimate interests or rights.
principles of actual harm and preferential public interest in access should be
applied, prior to denying access based on the application of one of the
exceptions enumerated in article 3.1 of the Convention. In the event that one
of the aforementioned exceptions to access is applicable, the Administration
should assess, case by case, and based on the principle that access should be
the rule, if access would cause actual harm to the right or interest protected
by the exception and deliberate if there is a higher public interest in
transmission, with regard to the impact on the right or interest protected by
Administration should respond quickly and flexibly to the application for access
to public information.
denial of the application should have a reason and should guarantee the right
of those applying to an appeal proceeding or review of said decision, before
recurring to courts or law or an independent and impartial tribunal.
Legal configuration of the right to access to public information
in countries of the European Union
In accordance with the foregoing, the right of access
to official information is currently configured as a fundamental right,
independent of freedom of expression and the general right to receive
information provided for in article 11 of the CFREU and is closely linked to
European case law has made declarations on this issue,
closely linking the right of access to the principle of democracy and
transparency, examples of which are, the SCJEU, of 30 April 1996, Kingdom of
the Netherlands (supported by Parliament) against the Council (supported by the
Commission and the Republic of France), case number C-58/94
(CJEU\1996\78); or the SGC, of 14 October 1999, Bavarian Lager against
Commission (supported by the United Kingdom), case number T-309/97
(CJEU\1999\241), amongst others.
As regards the aforementioned case law criteria,
Community Institutions have assumed that recognition of the right to access is
not enough, and that it is necessary to provide measures that facilitate and
guarantee it. To this end, they have made efforts to adapt their
regulatory-legal language to ensure that it can be understood by the average
citizen, support citizens with exercising their rights, providing facilities
for access and reducing response times to applications.
At the same time as the legislative activity within
the European Union, a number of members States have developed their own
regulations under the principles that have been declared in this article, which
are also based on the regulations of other countries that, while not being
members of the European Union, have approved regulations on the matter that
have been in force for some time and that are therefore firmly consolidated in
their legal systems.
The member States of the European Union that have
approved legislation to regulate the right to access to public information
include Ireland, Great Britain, France, Germany, Italy, Slovenia and, more
As regards Spain, it is worth noting that not only the
State has legislated on the issue, but also the majority of regional
governments (constitutionally referred to as Autonomous Communities) have
approved regulations to consolidate the basic legislation approved by the State
and that, in some cases, they have amplified the regulation of said right by
introducing protective measures to guarantee the exercise thereof by
The minimum content of the regulations approved by member
States is as follows:
Legal nature of the right: in most
cases it is granted the character of a fundamental right and, as such, it is
provided with the instruments of guarantee and specific regulation that each legal
system may grant it.
Active legitimacy: who holds
the right to access to public information.
Passive legitimacy: who has
the obligation to facilitate access to public information.
Concepts: public information and
Total and/or partial access procedures for public
information: term, silence procedure, obligation to justify denial
of access and possible means of appeal. Limitations on the right to access.
Exceptions to the right of access: principles
of proportionality and actual harm when applying exceptions.
Collision of rights and deliberation:
access and privacy.
Existence of an independent authority:
additional instrument of protection of the right, which acts as a guarantee of
impartial review of the application prior to court action.
Open Data: instrument and guarantee for the exercise
of the right to access to public information and the implementation of the Open Government
Nowadays, citizens and governments live as part of the
Information and Knowledge Society thanks to the constant evolution of ICT and
its implementation in our daily lives.
This has given rise to new terminology that is not
only linguistic but also legal, such as those relating to the concept of
electronic Government or Administration, and as a further development, to the
concept of Open Government,
which goes beyond the idea of transparency and leads to the creation of new
spaces for relations between States and society in which the transmission and
access of public information mainly facilitated by ICT is an indispensable
It is important to bear in mind that, insofar as the
aim of Open Government does not solely imply transparency but also the
encouragement of participation and collaboration, the management of public information
in free format takes on a fundamental role so that it can be reused,
and therefore States should regulate this issue using a threefold approach:
Right of access to information and management of
information within public administrations.
Protection of data.
In this new political, legal and social scenario, the
implementation of Open Data and the mechanisms for reuse of public data come
In particular, Open Data is a philosophy whose aim is
to make available to society the data managed by public administrations in easy
to manage formats, so that any citizen or company can analyse, reuse and
redistribute the data, generating new services and enabling administrations to
improve transparency (open government) and boost the generation of wealth by
the intelligent management of resources (smart government).
The aim is that citizens and business, “infomediaries”
or “reusers”, can reuse the data to generate economic value by building
new data, knowledge or services that provide economic and/or social benefits.
To guarantee the correct functioning of the Open Data
philosophy and the reuse of public data, States, and in particular, their respective
Administrations, should act in accordance with provisions of Directive
2003/98/EC of the European Parliament and Council, of 17 November 2003, on the
reuse of information from the public sector
and therefore comply with the following principles:
Public: all public data that is not
subject to restrictions of privacy, security or copyright should be made open.
Detailed: the data should be published
in its original state, without processing and keeping as much detail as
possible (raw data).
Up to date: the data
should be made available to users at the frequency required so that it does not
lose its value, it should be precise and up to date.
Accessible: the data
should be accessible to the largest possible number of users.
Automated: the date
should be structured so that it can be automatically processed by a computer to
Without registry: the date
should be available for all, without any need for previous identification.
Open: the data formats should not
belong to an organisation or be a proprietary tool of an organisation (this
would be the case of formats such as Word, Excel, etc.).
Free: the data should be 100% free
of rights, patents, copyright and should not be subject to rights of privacy,
security or privileges.
The above principles lead to the conclusion that:
If the data cannot be indexed, it does not exist.
If the data is not made public in an open and legible
format, it does not foster participation.
If the legal system does not permit use of this data,
it does not benefit citizens or business.
As regards the benefits generated by the
implementation of Open Data and the consequent reuse of public sector
information, the following three dimensions should be taken into consideration:
Companies: they have
the possibility of generating economic value from public data provided by
public administrations, creating services and applications from open data.
Citizens: proximity is created with the
principles of open and smart government, facilitating relations between
administrations and citizens and collaboration by citizens in the exercise of
functions. A result of this relation could be the generation of new services
based on private initiatives via the use of open data catalogues and the
consequent creation of new jobs.
Publication of public data in a standardised website
leads to an increase in information transparency and the bringing about of one
of the main objectives of Open Government.
Public administration: benefits
are created from the collaboration of citizens that, via Open Data and data
reuse, participate in improving public services.
Exchanges are also fostered between different administrations,
generating greater efficiency in administrative functions and the work load of
public employees with the evident cost reductions involved.
To sum up, the aim of the calculation, transparency +
reuse + open data is to improve effectiveness in the provision of public services,
to foster the participation of citizens, to create economic and/or social
benefits and even to prevent corruption.
Notwithstanding the foregoing, reality has surpassed
regulations currently in force, and there is a clear imbalance between laws
regulating the issue and the tools offered by ICT. It can also be seen that in
most currently effective legal systems, the option of Open Data is more a
public policy than a legal commitment, inasmuch as it does not always openly
incorporate the right to free access to information held by public powers to
elaborate their policies and adopt their decisions.
There is therefore a long road ahead, not only for the
legislative powers of States, but also for legal operators that intervene in
the relation between citizens / companies and the administrations responsible
for fostering Open Government, and it would be highly appropriate to
unify the legal regime of access and dissemination of public information and
that of reuse to boost open access to information as a form of government to
guarantee transparency in management, efficiency of public resources and
participation and collaboration with citizens.
To this end, administrations should foster spaces in
their electronic offices that are given over to open data that not only provide
the lists of sets of reusable data, but also the mode of reuse, any public
prices or fees that might be applicable, and a description of the access
The conclusion can be drawn
from this article that the regulation of the right to access to official
information, bearing in mind the standards set by the Convention of the Council
of Europe on access to public documents and other regulations of the European
and Spanish legal systems, should include the following:
Any person should be able to ask for
access to public information without having to demonstrate any interest or
provide reasons for the request.
(ii) Any denial of access should be justified by
legally set objective causes.
Access to public information is not
limited to final documents, but also includes draft documents, as long as this
is in the public interest and does not harm other rights or interests.
(iv) The general rule should be to permit access
to information and denial should be the exception. If access to public information
does not cause any harm to the interest protected by the exception, access
should not be limited. If it causes harm, deliberations should be made to see
if there is a public interest in disseminating the information that prevails
over the other interest. In this case, the harm that dissemination might cause
to the right protected by the exception should not impede access.
Exclusions to access should be limited
in time, they should make reference to the contents of the document and should
be motivated by the protection of other interests or rights affected by access.
(vi) The weighting principle should be applied
between the right of access to the information and the right of privacy. When
deliberating on both rights, the actual harm that dissemination of the
information might cause should not become an absolute exception when the public
interest in access is the prevailing factor.
of anonymity should be assessed to protect personal data prior to dissemination,
or only permitting partial access when it is concluded that the right to
privacy impedes access to the information.
The administration should resolve the
matter quickly within the legally established maximum period. The silence
procedure should be applied by default, without the need for additional or
Access to information should be free,
although a limited fee is acceptable if it only covers the cost generated by
issuing the copies and does not have a restrictive or dissuasive effect.
The intervention of an independent body
for the protection of rights may be an instrument to foster access to
information and guarantee impartial review of an administrative decision prior
to any court proceeding.
(x) The open data policies should promote
transparency, control over administrative activities and economic benefits. The
reuse of public information effectively has a multiplying effect over these
factors, and therefore moves should be made to standardise the legal system
with regard to transparency, open data and reuse
“1. Every person has
the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television or cinema
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary”.
Sentence of ECtHR, of 28 September 2004, Loiseau v. France.
Sentence of ECtHR, of 26
March 1987, Leander v. Sweden.
Sentences of ECtHR, of 10
July 2006, Sdruzeni Jihoceské Matky v. Czech Republic; 16 August 2009, Kennedy
that date the most relevant document on the issue was the Recommendation of the
Council of Ministers of 21 February 2002 on access to official information, which
was not binding in nature.
The right of access to information is held by any legal
entity or individual, which should be exercised without any discrimination
whatsoever, including origin or place of residence, without having to provide
any proof of interest.
205 extends subjective scope to all administrative authorities, including
Governments, legislative and judicial bodies (insofar as they carry out
administrative functions), and to private legal entities or individuals (insofar
as they exercise administrative authority).
Likewise, it is projected that member states can
extend the scope of application of the Convention by means of a declaration at
the time of signing, with the aim of incorporating the legislative and judicial
powers (most member states limit application of the laws concerning access to
information to the executive branch) or private legal entities and individuals
if they exercise public functions or operate via public funds.
The Memorandum of Convention 205 provides
clarification by stating that the concept public document includes any
type of information (written texts, information recorded on sound or audiovisual
media, photographs, mail and information on electronic media such as data bases).
It also insists on the need to distinguish between documents received by public
authorities within the framework of their functions from those they receive as
private individuals and that have no relation with their functions (these do
not enter into the concept of public document). Therefore, documents generated
or received by official authorities that are in their possession are included.
(i) Protection of national security, (ii) Defence and
foreign relations, (iii) Public safety, (iv) Prevention, investigation and
monitoring of criminal investigations, (v) Investigation of disciplinary
proceedings, (vi) Administrative oversight, inspection and control, (vii) Private
life and other legitimate private interests, (viii) Commercial interests and
other private or public economic interests, (ix) Economic, monetary and
exchange rate policies of the State, (x) Equality of parties before the courts
and the proper operation of justice, (xi) The environment, (xii) Deliberations
within or between public authorities concerning a dossier and (xiii) Communications
with the Royal Family and the Royal Household.
Declaration number 17 stated that “transparency of the decision making process
strengthens the democratic character of Institutions and public trust in
contents were included in sections 2 and 3 of section 11 of said Treaty, by
virtue of which:
“2. Institutions shall maintain an open,
transparent and regular dialogue with representative associations and civil
3. To guarantee the coherence and
transparency of the actions of the Union, the European Commission shall
maintain wide ranging consultations with interested parties”.
“1. Every citizen of the Union, as well as any
legal entity or individual that resides in or has his corporate address in a
member State, shall have the right to access to documents of the European
Parliament, the Council and the Commission, in accordance with the principles
and conditions established as per sections 2 and 3.
2. The council, in accordance
with the procedures provided for in article 251, shall determine the general
principles and limits, for reasons of public or private interest, that regulate
the exercise of said right of access to documents, within two years after the
entry into force of the Treaty of Amsterdam.
3. Each institution mentioned
shall prepare specific provisions in their internal regulations for access to
Declaration number 41 on the provisions regarding
transparency, access to documents and the fight against fraud states that: “The
Conference considers that the European Parliament, Council and Commission, when
they act in pursuance of the founding Treaty of the European Coal and Steel Community
and the founding Treaty of the European Atomic Energy Community, should be
based on the provisions on transparency, access to documents and the fight
against fraud that are in force within the framework of the founding Treaty of
the European Community”.
“Every citizen of the Union or any legal entity or
individual that resides in or has his corporate address in a member State has
the right to access to documents of the European Parliament, the Council and
the Commission”. In the explanatory note of said precept it is indicated
that “the right guaranteed in this article is the one guaranteed in article 255
of the EC Treaty”.
to article 1, it sets out to “establish standards that
guarantee the easiest possible exercise of this right, and to promote best
administrative practices for access to documents”.
Article 4 of RD
1049/2001 provides for three types of limitations: (i) exceptions subjected to
the harm test, (ii) imperative exceptions subjected to the harm test and the
deliberation of greater public interest, and (iii) imperative exceptions
subjected to the severe harm test and deliberation.
The main limitations are (i) public interest linked to
public safety, (ii) defence and military affairs, (iii) international
relations, and (iv) the financial, monetary or economic policy of the Union or
a member state. Another cause of denial of access is the protection of the
privacy and integrity of the person. Finally for certain situations, the
exception to access can only operate if there is no superior public interest in
the transmission thereof.
With the entry
into force of the Treaty of Lisbon, reference should be made to article 15, section
three, of the consolidated version of the Treaty on the Functioning of the
European Union, developed by Regulation 1049/2001, of 30 May 2001, of the
European Parliament and the Council, by virtue of which:
“3. Every citizen of the
Union, as well as any legal entity or individual that resides in or has his
corporate address in a member State, shall have the right to access to
documents of the institutions, bodies and organisations of the Union,
regardless of the medium used, in accordance with the principles and conditions
established as per this section.
The European Parliament and
Council, in accordance with ordinary legislative procedures, shall determine by
means of regulations, the general principles and limits, for reasons of public
or private interest, that regulate the exercise of this right of access to
Every institution, body and organisation
shall guarantee the transparency of their work and shall prepare specific
provisions in their internal regulations on access to documents, in accordance
with the regulation contained in the second paragraph.
The Court of Justice of the
European Union, the Central European Bank and the European Investment Bank
shall only be subject to this section when they exercise administrative
The European Parliament and
the Council shall guarantee publicity of the documents concerning legislative procedures
under the conditions established by the regulations in the second paragraph”.
The Council of Europe defines this convention as
the first international legal instrument that recognises the right of access to
documents in the possession of public bodies with a general scope and a binding
The Convention, insofar as it contains minimum
regulations, has become a benchmark for
States that have legislated on issues regulating the right of access to public
information. Therefore, the member States that ratify it can establish more
ample regulations of the right to offer further protection thereof.
The Explanatory Report of the Convention drawn up by
the Council establishes that a fast and flexible response is an essential part
of the content of the right to access to public information. However, it does
not set a maximum period for responding to applications.
There are several studies by European institutions, which
have studied the issue in some depth. Some examples are shown below:
Transparency Initiative”, approved by the Commission on 9 November 2005.
- The “Green
Paper on European initiatives to favour transparency”, approved by the Commission
on 3 May 2006. COM (2006) 194.
initiative to favour transparency. A framework for relations with interest
representatives”, approved by the Commission on 21 March 2007. SEC (2008)
- Defined Code of
Conduct in the Communication of the Commission on 27 May 2008, “European
initiative to favour transparency. A framework for relations with interest
representatives (Registries– Codes of conduct)”. COM (2008) 323 final.
- Regulation (EC) no.
1367/2006 of the European Parliament and the Council, of 6 September 2006, on
application to Community Institutions and Bodies, the provisions of the
Convention of Aarhus, approved by the European Parliament and the Council on 6 September
2006 (DO L 264, 25/09/2006, p.13).
- “Green paper on access by the public to documents of the Institutions of
the European Community”, approved by the Commission
on 18 April 2007. COM (2007) 185.
The USA is
noteworthy in this regard, which since 1966 has the Freedom of Information
Act (hereinafter, “FOIA-USA”), which was one of the first experiences in
regulating the right of access to information and has acted as inspiration for
subsequent regulation in other countries.
The FOIA-USA is based on the principles of
transparency and information, establishing a series of exceptions that are
founded on the notions of public safety and protection of privacy. The regulation
of the right to access to public information in the USA has evolved to its
present state as an indispensable part of democratic participation (and not as
an element of the national heritage) in decision making processes.
In the South American sphere, greatly inspired by the
model of the FOIA-USA, reference should be made to the Federal Law of
Transparency and Access to Public Governmental Information, of 11 June 2002, of
Mexico, and Law 27806, on Transparency and Access to Public Information, of 2 August
2002, of Peru.
access should be justified and should be established for objective reasons of
protection of other rights and interests that transmission might affect. Therefore,
when knowledge of information that is not final, a report or a preparatory note
might be of public interest from the perspective of assessment of public
activities, it should not be excluded from access only because it is not final
or is a draft, but rather it is necessary that the access, in the same way as
for final information, may imply harm to other rights or interests and that
exclusion is necessary for protection.
Based on this premise, the comments of the Convention
of the Council of Europe on the limitations on access to public information are
worth highlighting once again:
- They should be established expressly and precisely
- They should be necessary in a model of a democratic
- They should be proportional to the aim of protection
that the exclusion sets out to provide.
The OECD defines it as “the transparency of actions performed by a
government, accessibility of services and public information, and the capacity
of government to respond to new ideas, demands and needs”. “Modernising
Government: the way forward”, OECD, 2005.
main impulse behind Open Government at international levels was brought
about by the Report on Transparency and Open Government signed by President Barack
Obama on 21 January 2009, which gave his Administration instructions to
establish a system of transparency, public participation and collaboration so
as to strengthen democracy and promote the effectiveness and efficiency of
Government. To do this it demanded that the Government should be transparent,
participatory and collaborative.
Report gave rise to the initiative called the Open Government Partnership
whose fundamental aims are that governments should be accountable, be more open
and improve their capacity to respond to citizens. The States that wish to form
part of this initiative should sign the Open Government Declaration, undertaking
to foster the culture of open government and, in particular, (i) increase the
availability of information about government activities, (ii) do so in formats
that facilitate reuse and, especially, in open formats as an instrument to
promote access to public data and guarantee interoperability, (iii) support
citizens' participation, (iv) promote collaboration, and, (v) foster the use of
A. V. Ramírez-Alujas, “Open
government is the answer: what was the question?. Más Poder Local
Journal, special issue on social networks and governance, 2012, page 15, sets
out that “when we talk about open government we are referring to the
expression of certain principles that are shown in a) improving the levels of
transparency and access to information by opening public data (to exercise
control and accountability), and the reuse of information from the public
sector (to promote innovation and economic development); b) facilitate the
participation of citizens and economic development); and c) favour the creation
of spaces for collaboration between stakeholders, particularly between public
administrations, civil society and the private sector, to co-design and/or
co-produce public value”.
In accordance with the Recitals 6 to 8 of Directive 2003/98/EC:
“(6) There are
considerable differences between one member State and another in terms of the
standards and practices of use of information in the public sector. These
differences constitute barriers that impede full use being made of the economic
possibilities of this essential resource. The traditions of exploitation by
bodies in the public sector are diverse, which should be taken into account.
Therefore a minimum harmonisation of national standards and practices with
regard to reuse of public sector documents should be carried out in cases where
the differences between national standards and practice or the absence of
clarity impede the effective operation of the internal market and the suitable
development of the information society in the Community.
in the absence of minimum harmonisation at community level, the legislative
activities at national level, already initiated in some member States when
faced with the need to provide a response to technological challenges, may give
rise to even greater discrepancies. The consequences of these legislative
discrepancies and this uncertainty shall be accentuated with the future
development of the information society, which has already caused a major
intensification of trans-frontier exploitation of information.
(8) A general framework is required for the conditions of reuse of
public sector documents in order to guarantee that said conditions are
balanced, proportioned and non-discriminatory. Public sector bodies shall
gather, produce, reproduce and disseminate documents as part of their work as a
public service. The use of said documents for other reasons constitutes reuse. The
policies of the member States may go beyond the minimum regulations established
in this Directive, to permit more extensive reuse”.