Draft Spanish access to information law contains excessive exceptions and falls below international standards

Madrid, 26 March 2012 – The Spanish government today opened for public consultation the draft “Law on Transparency, Access to Public Information, and Good Governance”.

Specialist NGO Access Info Europe welcomed the law and unprecedented consultation but noted that serious improvements are needed to bring the law into line with international standards, in particular by revising the definition of information which establishes excessive exceptions thereby excluding large quantities of information from the right to request access.

The law together with information on the public consultation is available here.
A copy can be downloaded here

Spain is the only EU country with more than one million inhabitants not to have an access to information law. Access Info Europe, together with the 54 NGOs in the Coalición Pro Acceso, has been campaigning for over five years for a law.

“Spain is one of the last democratic countries in the world to adopt an access to information law and it really should be in line with the minimum international standards such as the Council of Europe Convention on Access to Official Documents,” said Helen Darbishire, Executive Director of Access Info Europe.

“We hope that the government will take into account the comments by the public and that the law will be significantly improved before its presentation at the Open Government Partnership in Brazil in mid-April,” added Darbishire.

Access Info Europe noted that positive features of the law include a series of dedicated provisions on proactive publication of information and the creation of a transparency portal.

Key concerns about the law include:

• Scope: The law applies to a wide range of public bodies and private bodies performing public functions but it does not apply to non-administrative information held by the judicial and legislative branches. The law also does not apply to the Royal Family, which has a public role in Spain and has been damaged by recent corruption scandals.

• Definition of information: The definition of information excludes information which “affects” interests such as national security, defence, external relations, public security, and criminal investigations. Such information cannot even be requested and requests will be rejected. There is no harm or public interest test. This makes it impossible for Spain to sign the Council of Europe Convention on Access to Official Documents with the current text.

• Excluded information: There are, however a series of what are called “exceptions” which are in fact limitations on the definition of information which includes “notes, drafts, opinions, summaries, reports and communications within or between public bodies” which are characterised as having a merely “auxiliary or support” character. In such cases the public bodies will not even process the request for information.

• Exceptions: Some of the remaining exceptions are in line with those in the Convention on Access to Official Documents and are subject to a harm test but none carry a public interest test, which again is out of line with the Convention’s requirements.

• Excessive Protection of Personal Data: The law gives priority to the data protection, requiring consultation with affected persons and giving the possibility to reject requests which contain large numbers of names making consultation time consuming. On the other hand, this exception does include a public interest test which should be considered to exist when the data relates to the organisation, functioning and activities of public bodies.

• Failure to recognise a fundamental right: the law does not link the right to information to the right to freedom of expression in the Spanish constitution, and does not make it a fundamental right.

• Justifying Requests: the law contains language which will encourage public bodies to ask for reasons for requests by saying that “requesters may give reasons” although the absence of a reason “will not in and of itself” be the reason for a refusal.

• Administrative Silence is Negative: given the high level of non-responses to information requests in Spain, the fact that a non-answer is interpreted as refusal puts a disproportionate burden on the requester to appeal.

• Sanctions: There are no specific sanctions for violations of right of access to information, nor other related offences such as destruction of documents.

Access Info noted that it is not possible fully to assess the provisions on the oversight body, the “State Agency for Transparency, Evaluation of Public Policy, and Quality of Services” as much of its powers have been left to a regulation.