Spain’s Transparency Lottery

[Article first published on eldiario.es (in Spanish)]

Helen Darbishire, Executive Director

Madrid, 13 June 2017 – If the person reading this article had to place a bet, which information would you say it’s easier to access: the salaries of advisers to the ministers or the documents that guide Spanish Cabinet discussions at its traditionally secretive weekly Friday meetings?

What’s certain is that talking about transparency in Spain is like buying a lottery ticket: the lack of a government transparency policy makes obtaining information feel more playing roulette than exercising a fundamental right.

In fact, Access Info managed to obtain the documents used by the Spanish Cabinet, although only after appealing to the Transparency Council, whereas basic information such as the salaries of advisers is still a secret, even though the Transparency Council also said that that should be public.

Such examples show that what’s more important in Spain is not the legal framework but rather political will.

Another example that highlights the contradictions of transparency in Spain: we managed to find out who was lobbying the government around the controversial renewable energy law but have been denied access to the appointments diaries of senior civil servants. Similarly, the amount spent by members of parliament on official travel is not public.

And if you want to go after the jackpot, why not bet on whether the Cabinet Office (Ministry of the Presidency) will open up the documents it holds about its progress on … open government.

You might be tempted to bet on access – especially if you know that Spain is a member of the Open Government Partnership – but until now this information is being kept secret and the government just appealed to Spain’s High Court to keep it that way!

And that’s after the first instance court ruled in favour of Access Info getting access, with a beautiful judgement that emphasised the need to access the information to participate in the decision-making process.

That’s right: even with the law and judges on your side, you can’t be guaranteed of a win in Spain’s transparency lottery!

This is the great Spanish paradox: one of the world’s youngest access to information regimes is proving a huge challenge for civil society, and you never quite know when your efforts will pay off.

Indeed, even when you get a positive ruling from the strongly independent Transparency Council, there is still a high chance that the government will go to court to challenge the decision: A full 46 of the Transparency Council’s decisions against ministries are currently under appeal in the courts, with a significant amount of public funds being spent lawyers fighting to keep the government closed!

In some way decision to litigated is positive as at least the arguments are played out in court: some other decisions are simply ignored because the Transparency Council does not have binding powers.

Maybe this resistance to open the doors of government to the public should not be so surprising: Spain is a country where the State Secrets Law comes from the last century and, rather remarkably, still bears the signature of General Francisco Franco … it hasn’t been modified since 1968, and in many quarters bureaucratic thinking has not advanced much since then either.

How to close the casinos?

There’s clearly a long road ahead to achieve transparency in line with international standards and to implant a culture of transparency in Spain, but we can identify the milestones that will mark that route.

The first is that political leadership is needed to develop a rigorous openness policy and to end the transparency lottery. It’s not clear where that will come from at the national level, but at least it’s happening in big cities such as Madrid and Barcelona (with Madrid also being an OGP member in the sub-national pilot programme).

A future open government policy should include respecting the decisions of the Transparency Council, even if they are not binding, as happens in Nordic countries when the Ombudsman rules that information should be made public.

It’s true that some other countries – starting with Sweden in 1766 but even more recent examples such as France in 1978 or the UK in 2000 – have had more time and so are ahead on that road. But that’s still not an excuse for the reticence to come under scrutiny that seems to be a feature of the public administration in Spain.

Next, it’s imperative to strengthen Spain’s weak 2013 access to information law – it ranks in a low position 79 out of 111 globally – and to bring it into line with the standards promoted by the Open Government Partnership in its 2016 Paris Declaration.

And last but not least, the system for making requests needs to be much easier. Right now, to submit a request means having to jump through a series of hoops, which include complex identification procedures unknown in any other European countries.

This difficulty in submitting a request means that the only people who play the transparency lottery in Spain are dedicated civil society activists and some investigative journalists. We know what it costs us to play, we know the chances of losing are high, and that’s a huge disincentive for the average person to exercise their right.

These changes are among those that the Spanish government should prioritise as it develops its third Open Government Partnership Action Plan.

A positive difference this time around is that this Action Plan is being developed with some input from civil society. But still what is really required is high level political leadership to turn accessing information from a game of chance into a democratic tool.