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Access to Public Documents

It has recently come to light that the Commission for the Guarantee of the Right of Access to public Information has, in a recent resolution, determined that there is a right to access public documents, but by no means is there a right to obtain explanations or further details of such information.

This news reminded me of the Council of Europe Convention on Access to Official Documents, which was drawn up in Tromsø on June 18, 2009, and has recently been ratified by the Spanish state, specifically on November 23, 2021. It was published in the BOE (Official State Gazette) on October 23, 2023, meaning that the Convention will not come into force in Spain until January 1, 2024, whereas in other countries it generally came into effect on December 1, 2020.

In general, the Convention aims to ensure that each State guarantees every person, without any discrimination, the right to access, upon request, public documents held by public authorities.

However, this right of access is not universal and may be subject to limitations specifically set by law, which must be proportional to the aim to be protected. In general, the objectives to be protected would be:

  • National security, defense, and foreign relations;

  • Public safety;

  • The prevention, investigation, and prosecution of criminal activities;

  • Disciplinary investigations;

  • Guardianship missions, inspection, and control by the administration;

  • Private life and other legitimate private interests;

  • Commercial interests and other economic interests;

  • The economic, monetary, and exchange policy of the State;

  • Equality of the parties in a judicial instance and the proper functioning of justice;

  • The environment; or

  • Deliberations among public authorities regarding the examination of a matter.

Apart from the aforementioned cases, which in Spain will also include the Crown, any citizen may request a public document without being obliged to give reasons for wanting access to the document.

In this case, the Administration will have the power and the obligation to proceed to the anonymization of the document in all those data concerning and not related to the applicant.

The aforementioned Convention also foresees that the administration must assist the applicant in identifying the requested public document, with the request being denied if it is imprecise or if it is unreasonable.

It is noteworthy that it has been included that this right of access means, not only the consultation of the original or a copy, but also the right to receive a copy of the document in the form and format available chosen by the applicant.

The Convention also establishes the free examination of documentation on the premises of the public authority, but a reasonable price may be set for services performed in archives and museums as for the issuance of a copy of the document.

In summary, the fact that one wishes to access a public document, at times, the administration has posed some problems, now, knowing that such a refusal must be recorded in the Law, a procedure of recourse is also set for when the Administration denies such access, a refusal that must be fully founded and not valid by the mere declaration of inadmissibility or even by administrative silence itself.

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