2004 freedominfo.org Global Survey Results - Portugal
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

The Constitution has included a right of access to information since 1976. Article 268 of the 1989 Constitution states:

1. Citizens are entitled to be informed by the Public Service, when they so require, about the progress of proceedings in which they are directly interested and to know the final decisions that are taken with respect to them.

2. Citizens shall also enjoy the right to have access to administrative records and files, subject to the legal provisions with respect to internal and external security, investigation of crime and personal privacy.

3. Administrative action shall be notified to interested parties in the manner prescribed by law; it shall be based on stated and accessible substantial grounds when it affects legally protected rights or interests.

4. Interested parties are guaranteed effective protection of the courts for their legally protected rights or interests, including recognition of these rights or interests, challenging any administrative action, regardless of its form, that affects these, enforcing administrative acts that are legally due and adopting appropriate protective measures.

5. Citizens are also entitled to object against administrative regulations that have external validity and that are damaging to their legally protected rights or interests.

6. For the purposes of paragraphs 1 and 2, the law shall fix the maximum period within which the Public Service must respond. (1)

The 1993 Law of Access to Administrative Documents (LADA) allows any person to demand access to administrative documents held by state authorities, public institutions, and local authorities in any form. (2) Requests must be in writing. Government agencies must respond no later than 10 days after receiving a request. The Act also provides greater access for parties with an interest in a proceeding.

The Act does not apply to documents not drawn up for an administrative activity such as meetings of the Council of Ministers or personal notes and sketches. Access to documents in proceedings that are not decided or in the preparation of a decision can be delayed until the proceedings are complete or up to one year after they were prepared. Documents relating to internal or external security and secrecy of justice are protected under special legislation. Access to documents with personal information is limited to the named individual and can only be used for purposes for which it is authorized. The commission can refuse access to documents that place commercial, industrial or company secrets in danger or violate copyrights or patents.

Those denied can appeal to the Commission for Access to Administrative Documents (CADA), an independent Parliamentary agency. (3) It can examine complaints, provide opinions on access, review practices and decide on classification of systems. CADA's decisions are not binding so if an agency continues to deny access, further appeal can be made to an administrative court. The CADA handed 514 complaints and issued 260 opinions in 2001.

Bodies are required to publish every six month decisions, circulars, guidelines and any references for documents that have an interpretation of enacted laws or administrative procedures.

Portugal signed the Aarhus Convention on Access to Information in June 1998 and ratified it in June 2003. The LADA governs access to environmental information. In 1998, the European Commission issued a reasoned opinion that Portugal was not complying with the 1990 EU Directive on Access to Information. It closed the proceeding in 2000 after Portugal made modifications to the LADA.

The Law of State Secrecy sets rules on the classification on information harmful to the state security. (4) Secrets can be classified for four year periods which can be renewed.

The Act on the Protection of Personal Data allows any person to access and correct their personal information held by a public or private body. (5) It is enforced by the National Data Protection Commission. (6)

Notes

1. Constitution of the Portuguese Republic, 1997. http://www.oefre.unibe.ch/law/icl/po00000_.html

2. Lei nº 65/93, de 26 de Agosto, com as alterações constantes da Lei nº 8/95, de 29 de Março e pela Lei nº94/99, de 16 de Julho http://www.cada.pt/PAGINAS/ladaing.html. See http://www.cada.pt/PAGINAS/acessoing.html for a detailed overview of the Act

3. Home Page: http://www.cada.pt/

4. Law of State secrecy no 6/94, of 1994/04/07.

5. Act nº 67/98 of 26 October 1998 on the Protection of Personal Data (transposing into the Portuguese legal system Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data). http://www.cnpd.pt/english/bin/legislation/Law6798EN.HTM

6. Homepage: http://www.cnpd.pt/