OPEN GOVERNMENT: ADMINISTRATIVE TRANSPARENCY, RIGHT OF ACCESS TO PUBLIC INFORMATION

Introduction

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:

1. 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
ECHR,
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.

1. Convention 205, of the Council of Europe, on access to
   official documents

   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
   and proportionality.

   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
  documents.

  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
  interest.
  
  
  
  

1. 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
  article 42.

  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
  attached.

  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.

  Pursuant to
  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.

  The right
  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.

  In
  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
  publicity, including:

• 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
  (article 12.2).
  
  
  

1. The Treaty on the Functioning of the European Union or
   the Treaty of Lisbon

   The right
   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
   December 2009.

    

2. European directives

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
  employment growth.
  
  
  
  

• 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
  transparency.
  
  
  
  

• 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
  activities.

   

1. Convention of the Council of Europe on access to public
   documents

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
twofold approach:

-        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
participation.

-        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
follows:

-        Guarantee
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
authorities.

-        Guarantee
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.

-        Possibility
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.

-        The
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
the exception.

-        The
Administration should respond quickly and flexibly to the application for access
to public information.

-        The
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
the citizen.

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
recently, Spain.

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
administrated citizens.

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
  documents.
  
  
  
  

• 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
  premise.

  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.
  
  
  
  

• Administrative procedures.

  In this new political, legal and social scenario, the
  implementation of Open Data and the mechanisms for reuse of public data come
  into play.

  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
  guarantee reuse.
  
  
  
  

• 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
  mechanisms.

   

  Conclusion

  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:

  (i)
       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.

  (iii)
     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.

  (v)
      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.

  The option
  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.

  (vii)
    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
  confirmatory actions.

  (viii)
  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.

  (ix)
     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