Madrid 29 May 2012 — The Spanish Government has made minimal changes to its proposed access to information law has ignored the changes proposed by national experts and the Organisation for Security and Cooperation in Europe (OSCE).
The new text, published quietly on the Presidency website without informing members of the Coalición Pro Acceso or the public in general, appears to have ignored suggestions for improvement made during the public consultation two months ago, which received almost 3,700 contributions, although this cannot be stated with certainty given that the government has refused, to date, to make those comments public in spite of claiming that the consultation was “an act of transparency in itself.”
The new text has failed to make fundamental changes recommended by national experts during meetings of the Commission of Experts convened to discuss the law where leading legal specialists warned that the law falls below international standards. These concerns include that:
» The law does not recognise a fundamental right of access to information in line with the protection of freedom of expression in the Spanish constitution;
» The law only applies to administrative information and does not apply to the judicial and legislative branches;
» The definition of information includes various exceptions, something which is clearly out of line with the Council of Europe Convention on Access to Official Documents;
» The law contains exceptions and blanket exclusions of information which cannot even be requested (opinions summaries, internal reports and communications between administrative bodies), again out of line with international standards.
Spain’s Vice President stated a week ago that the government had included in the law any comments “which fit with the philosophy of the law” but given the minimal changes this raises the question as to whether the philosophy behind this transparency law is consistent with international and comparative standards on the right of access to information.
“With this law it will be impossible to ratify the Council of Europe Convention on Access to Official Documents. It is hard to understand how Spain can propose a law which flies in the face of even the minimum international standards,” said Helen Darbishire, Executive Director of Access Info Europe.
“The refusal to recognise a right of access to information means that Spain is ignoring its international human rights treaty obligations, and the jurisprudence of the European Court of Human Rights and the interpretation of the International Covenant on Civil and Political Rights by the UN Human Rights Committee,” added Darbishire
The minimal changes made to the text include adding a public interest test to some, but not all, the exceptions and introducing sanctions for failing to respond to information requests within the specified time limit.
Another change is from the exclusion of “reports” to exclusion of “internal reports”, a change which does not seem to make much sense given that the law does not contain a definition of internal reports; the law retains a series of exclusions which prevent a requester even asking for information that may have been used as the basis of a decision making process.
A further significant problem which has been criticised by members of the Commission of Experts is the lack of independence of the future Transparency Agency charged with overseeing compliance with the law.
Access Info Europe notes that in its Open Government Partnership Action Plan, Spain promised to reform the law following the public consultation “to ensure that the final version of our Transparency Act responds to the issues that are of most concern to our citizens.” There is no evidence to date that this has been done and Access Info Europe today reiterated its call for the submissions to the consultation to be made public.