Spain Proposes FOI Law; NGO Identifies Faults

27 March 2012

Spain’s proposed freedom of information law is drawing critical reviews.

Spain’s Cabinet on March 23 agreed to propose a freedom of information law and on March 26 proposed a text (in Spanish) for an unusual  15-day consultation period.

“It is a law whose main goal is improve the credibility of and trust in our institutions, especially government ones,” Deputy Prime Minister Soraya Saenz de Santamaria said, according to press reports.

The draft “Law on Transparency, Access to Public Information, and Good Governance” was welcomed with reservations by the Madrid-based nongovernmental organization Access Info Europe. Spain is the only large European country lacking a FOI law.

“Serious improvements are needed to bring the law into line with international standards,” said the group.

The exceptions in the proposal are “excessive,” the group stated. The 54 NGOs in the Coalición Pro Acceso have 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 – but rather than being in the vanguard, this law falls below the minimum standards in the Council of Europe Convention on Access to Official Documents,” said Helen Darbishire, Executive Director of Access Info Europe.

Another critical review was penned by Nick Lyne in IberoSphere, who wrote: “Let’s be clear about this, the government’s proposals are not, by any stretch of the imagination a Freedom of Information Act as would be understood in the United States, Canada, or the rest of the European Union, come to that. Closer examination of the draft bill reveals a number of vaguely defined, catch-all clauses.” He predicted that it  unlikely to be passed before Congress takes a break for its summer.

Access Info Europe and Civic Citizens Foundation have a website, to monitor the government’s transparency and citizens’ requests for government information.

Access Info Europe Details Criticisms

Access Info Europe praised provisions on proactive publication of information and the creation of a transparency portal.

The group cited three 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 to 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 if consultations would be 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 said 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.

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