Litigation by Access Info Europe against Spain’s Ministry of Justice – Request for information about anti-corruption measures

Overview: Supreme Court denies right of access to information

Access Info Europe requested from Spain’s Ministry of Justice information about what it had done to implement the UN Convention against Corruption and the OECD Anti-bribery Convention. The information request containing a series of specific questions was presented on 14 June 2007. The request was never answered.

After a drawn-out legal process lasting five years, the Supreme Court ruled on 22 May 2012 that there was no violation of Access Info Europe’s right of access to information. Access Info Europe had argued that the right is protected by the right to freedom of expression as recognised in international jurisprudence (European Court of Human Rights, Inter-American Court of Human Rights, UN Human Rights Committee). Access Info Europe also argued that the information was needed to participate in decision making and so essential for enjoyment of that right recognised in the Spanish Constitution.

The main argument deployed by the Supreme Court to reject the appeal is that Access Info Europe’s request to be informed about the specific measures taken to implement anti-corruption conventions signed by Spain, was not in fact an information request but was a request for “explanations” from the government. In taking this course, the Supreme Court evaded addressing the substance of the arguments about international law and jurisprudence that Access Info Europe had put forward.

Access Info Europe is being required to pay €3000 (approx $3650) in legal fees to the Spanish government; money which must be paid by September 2012.

Access Info Europe has in the meantime appealed to the Constitutional Court on the violation of the right of access to information; this appeal does not suspend the need to pay the legal costs.

1. The Request to the Ministry of Justice – 14 June 2007

On 14 June 2007, Juanjo Cordero, member of the Association Access Info Europe and member of its Executive Board, presented a series of questions to the Ministry of Justice about anti-corruption measures. This was part of an international research project that Access Info Europe was carrying out at the time.

The questions related to the measures taken to implement the UN Convention against Corruption and the OECD Anti-Bribery Convention in Spain. For example:

» What are steps that Spain has taken, in accordance with OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, to establish the legal responsibility of Spanish companies for acts of corruption/bribery involving foreign public officials.

» In conformity with the UN Convention against Corruption (article 6), which body is responsible for preventing corruption committed by Spanish people and public and private bodies? What resources (financial and personnel) have been provided to this body?

No reply was received to this request: Administrative silence.

What happened inside the Ministry? Documents in the case file received later indicate that on 29 June, the Ministry of Justice decided to elaborate a report to answer the request. Further documents made available during the legal process indicate that the Technical Department of the Ministry wrote to the Cabinet of the Minister of Justice saying that they were preparing a report to answer almost all the questions but that some would have to be sent to other ministries (not specifying which ones). Access Info Europe did not know about this at the time however.

2. The High Court Appeal – 22 October 2008

Access Info Europe presented its appeal to the High Court directly because the case is against the Ministry of Justice and so this is the appropriate instance for the appeal (as opposed to the administrative court for other public bodies).

This appeal was submitted on 22 October 2008. The timing is important to note because it is after the Inter-American Court of Human Rights Claude Reyes vs. Chile decision but before the European Court of Human Rights decisions on access to information (14 April 2009) and before the opinion of the UN Human Rights Committee (July 2011).

The appeal has three lines of argument linked to rights in the Spanish Constitution (in English here):

» That the right to freedom of expression was violated by the administrative silence;

» That the right to participate in political affairs was violated by the silence;

» That the administration had the obligation to issue a decision in response to the request.

3.1 Freedom of expression arguments – Article 20 of Spanish Constitution

There are two relevant parts to Article 20 of the Spanish Constitution:

20.1.a) the right to freely express and disseminate thoughts, ideas and opinions trough words, in writing or by any other means of communication;

20.1.d) the right to freely communicate or receive accurate

[or “true”] information by any means of dissemination whatsoever.

The appeal argued that Spain’s Constitution requires that Spanish law must be in line with international treaties signed by Spain and that the following are relevant:

» Article 19 of the Universal Declaration of Human Rights

» Article 19 of the International Covenant on Civil and Political Rights

» Article 10 of the European Convention on Human Rights

» Article 11 of the Charter of Fundamental Rights of the EU (freedom of expression)

The thrust of the argument in the appeal is that the administrative silence from the Ministry of Justice was a violation of the right to freedom of expression and the free flow of information protected by these treaties.

The appeal cites the Claude Reyes vs. Chile Case, in particular it’s relevant Paragraph 77:

In relation to the facts of the instant case, the Court finds that, by expressly stipulating the right to “seek” and “receive” “information,” Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.

The appeal also cites the 1982 Declaration of the Council of Europe on Freedom of Expression (here) which contains a reference to “access to information” as being necessary “to enhance the individual’s understanding of, and his ability to discuss freely political, social, economic and cultural matters” although this language was not cited in the appeal.

It also refers to the 1999 Joint Declaration of the International Mandates Promoting Freedom of Expression (here), which states

Implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people’s participation in government would remain fragmented.

The appeal argues that Article 20 of the Spanish Constitution protects freedom of expression should be interpreted in line with these international standards and calls on the court to rule that the silence of the Ministry of Justice was a violation of the right to freedom of expression and information.

2.2 Participation arguments – Article 23.1 and Article 9.2 of Spanish Constitution

The Spanish Constitution at Article 23.1 states that

“Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.

This has been interpreted in line with Article 9.2 of the Constitution which states that

It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove the obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.

The appeal argues that the failure to respond to the request for information interfered with the right to participate in public debate in an informed manner and to evaluate the activities of the government (in this case with respect to the fight against corruption).

2.3 The obligation to issue a decision

The third argument is very simply that the administration had an obligation to issue a motivated decision – that the administrative silence was illegitimate.

3. The Government’s Arguments

That the case should be dismissed because the failure to respond to the request from Access Info Europe is not a matter which can legitimately form the basis of a legal challenge.

4. High Court Decision – 22 October 2010

The High Court rejected the government’s arguments stating that the Court had before it “a request for information properly directed to the Administration, specifically the Ministry of Justice, and an administrative appeal against the presumed refusal by administrative silence [of the request], so therefore we have an administrative activity which can be challenged in conformity with [the relevant laws]”.

The High Court (Audiencia Nacional) also rejected Access Info Europe’s appeal on the following grounds:

» No violation of freedom of expression and information: The court found that the absence of an answer to Access Info Europe’s request did not violate Article 20.1.d of the Constitution (the right to freely communicate or receive accurate [or “true”] information) because this provision is not relevant as it does not imply a right of access to information held by public bodies.

The High Court in its sentence failed to make a single reference to the link between Article 20.1.d and Article 20.1.a, freedom of expression or the need to have information in order to disseminate it. Instead it cited at length a Constitutional Court case on issues of what is true information in defamation cases (this takes up nearly 3 pages of the under 8 page judgment, around 45% of the total words in the judgement!).

» Access Info Europe received the information: The Court stated that Access Info Europe had had access to a report from the Ministry of Justice answering the questions, i.e.: that there was not administrative silence. The Court did not justify this by, for example, giving dates when it was sent or when Access Info Europe was supposed to have received this. Access Info Europe also notes that in describing the report, the Court only refers to the OECD Convention and so the Ministry of Justice had not demonstrated that it had answered our request.

» Participation is not a relevant argument: That Court said simply that the right to participate in public affairs protected by Article 23.1 of the Constitution “is not relevant to the issue at hand” – an incredibly brief dismissal of the arguments.

» No obligation to answer: That there is no obligation to take a decision because the request for information is not “an administrative procedure”. The contradiction here with the argument that Access Info Europe had received the information or the fact that we had been permitted to appeal the administrative silence were not addressed by the sentence.

5. Appeal to the Supreme Court – 18 November 2009

Access Info Europe appealed to the Supreme Court on 18 November 2009, the appeal was admitted and the full text was submitted on 18 January 2010.

The appeal focused on the following arguments:

i) That the High Court misrepresented the request by saying it was about only one part of the request (the implementation through domestic of the OECD Convention) and that this needed to be clarified as any eventual order to release the information should encompass all parts of the requests. Access Info Europe also noted that the report presented as part of the case file was also limited in scope demonstrating that we cannot have had an answer to most of the request and hence that even if we had received that report, the request would not have been satisfactorily answered. In fact, we noted that the report in the case file didn’t answer at all the information sought in the request!

ii). The High Court failed to rule on the right of access to information as part of the right to freedom of expression (Articles 20.1.a on freedom of expression and 20.1.d on right to receive information of the Spanish Constitution) as interpreted in line with international law and jurisprudence. The request to the Supreme Court was very clear:

“the High Court should have ruled on whether [Access Info Europe] has the right to obtain the information sought … or if [Access Info Europe] does not have the right to obtain the said information.

In other words, this appeal, and the procedure which gave rise to it, relate in the first place, to the existence or not of a right of Access Info Europe to access public information, or the inexistence of the right.

And in the second place, in case that there exists a right of access to public information, the nature of this right, and the information which should be provided, or on the other hand, the reasons for denying access to the information.”

In the appeal, Access Info Europe repeated the references to the relevant international standards and jurisprudence included in the initial appeal to the High Court, now adding the decisions of the European Court of Human Rights in the cases of Társaság a Szabadságjogokért v. Hungary (Judgement of 14 April 2009) and Kenedi v Hungary (26 May 2009).

Access Info Europe noted specifically that the absence of an access to information law in Spain does not mean that there cannot be recognition of the right of access to information given that the doctrine of the Supreme Court and the Constitutional Court make clear that the fundamental rights section of the Spanish Constitution can be applied directly.

iii). The right of access to information is essential for participation in an informed way in a democratic society, as recognised by Article 23.1 of the Spanish Constitution. The same arguments as set forth previously were repeated, noting that “silence is one of the worst obstacles which prevent citizens from having the necessary information about the activities of public bodies, entities and institutions, and which blocks participative actions. Without information it is impossible to have true participation and without participation real democracy cannot exist.”

The appeal underlines that the High Court sentence did not give any reasoning for why, in its judgement, the right to participation had not been infringed by the failure to provide information.

iv). The High Court sentence created confusion by saying that the request was not related to an administrative procedure and yet also saying that the fact that Access Info Europe had been permitted to file an administrative appeal implied that there existed an administrative act which could be challenged. We called on the Supreme Court to resolve this contradiction.

Access Info Europe noted that its request had given rise to an administrative file (number 982/07) and hence an administrative proceeding clearly existed and this should have lead to a resolution. Access Info Europe noted that administrative silence is a “cancer” (forgive the phrase!) in the Spanish bureaucracy which too often hides behind the excuse that no response constitutes the “legal fiction” of being a refusal.

6. The Government Attorney’s Opinion – 21 July 2010

The Government lawyer (Abogado del Estado), submitted his arguments on 21 July 2010. These can be summarised as follows:

» This case is not about freedom of information nor about participation

» The case refers to the right – or, better, “faculty” – of access to documents in the hands of public bodies as set out in the Council of Europe Convention on Access to Official Documents which Spain has not yet signed nor ratified. The Government submission notes “The web page of the plaintiff is sufficiently explanatory about this, which shows that it is not completely unaware of current Spanish legal framework.” (The Access Info Europe notes here that in fact we did not at any point in the appeal refer to the Convention on Access to Official Documents but rather to the European Convention on Human Rights.)

» The current Spanish legal framework does not create the right to ask for information about what Spain is doing to apply international treaties it has signed. There is no obligation to make public such information apart from what is published in the Official State Bulletin.

» There is no relation between obtaining information and freedom of expression. The quite scathing language of the Government’s intervention makes clear:

“Freedom of expression, we insist, has nothing to do with requiring the Administration to supply whatever information available at the whim of any citizen or association. Not even to the press, however much of a ‘public watchdog’ (an expression in the appeal) it might be.”

» The right to participation has in no way been affected, as citizens can exercise this through specific participation mechanisms (referendums, open local councils, etc.) or through their elected representatives. People can and do participate in public affairs without the right to participation including any right to obtain information from any public body.

7. The Supreme Court Decision – 22 May 2012

The Spanish Supreme court ruled on 22 may 2012 and rejected Access Info Europe’s appeal.

The essence of the decision is as follows:

» There is no incorrect representation of the information request in the High Court’s decision. The Supreme Court says that the failure by the High Court to refer to the entire request (it only referred to the request about legislation arising from the OECD convention) is not important because it is clear that the High Court’s reasoning applies to all the requested information.

» The request was not for information. The Supreme Court rejects the appeal by arguing that Access Info Europe’s questions were an attempt at “political control” which is the job of the parliament, and were not requests for documentation. Indeed, the title of the sentence says “The difference between a request for information and a petition for explanations.”

The Supreme Court argues that Access Info Europe did not ask for specific documentation to be found in some archive or administrative register, not even general documentation about a specific matter. Access Info Europe, rather, asked for “explanations” about the implementation of the OECD Convention and the related actions of the administration. The Supreme Court says:

This is not a request for information and, of course, is no “access by citizens to administrative archives and registers” in the sense of Article 105 of the Spanish Constitution, which is the relevant constitutional provision for the matter being examined here. As the very acutely observed by the Government Lawyer in his written submission, what is requested is much closer to a political intervention; something which lies outside the scope of the right of access to information in the hands of public bodies, whatever might be the current constitutional basis of this right. In other words, citizens have the right – save in the cases of certain protected material – to know the documentation held in the administrative archives and registers; but not to obtain explanations from the Government or the Administration about whatever matter of general interest. The Constitution give only the [legislative] chambers such a right, precisely so that they can exercise political control over the Government.

The Supreme Court says that even if – hypothetically – it admitted that the freedom of expression and participation provisions of the constitution could lead to a right to obtain information, this would not have lead to a violation of this right in this case because it was not an information request.

The Supreme Court does not, however, go further in analysing the link between access to information and freedom of expression nor does it analyse at all the international jurisprudence or the constitutional arguments presented by Access Info Europe.

» Spain already has an access to information law: The Supreme Court rejects Access Info Europe’s argument that there is not access to information law in Spain, saying that the Code of Administrative Procedure is both broad and detailed. “Maybe an even broader regulation, through a specific law, would be desirable; but it is not the case that there is a legal vacuum as denounced by the plaintiff.”

Access Info Europe notes there that various legal experts including the government itself have recognised that Spain does not have an access to information law.

» The Ministry of Justice should have answered but it doesn’t really matter that they didn’t. The law makes clear that silence is presumed to be a refusal and permits an appeal. There is no contradiction here says the Supreme Court.

The Supreme Court ruled that Access Info Europe could be required to pay costs. The Ministry of Justice asked for the full €3000.

8. Appeal to the Constitutional Court – July 2012

Appeal – added reference to decision of UN Human Rights Committee of July 2011 recognising that Article 19 of the ICCPR includes the right of access to information held by public bodies.

9. Appeal against the 3000 costs – Decembre 2012

Access Info Europe challenged the €3000 costs imposed by the Spanish Supreme Court on the grounds that they were excessive. In a first decision, the judicial secretary ruled against this appeal, so we turned to the Judge responsible for the case with a further appeal. This judge ruled against our appeal on 26 December 2012, and hence we have no further options to challenge the costs and must pay the €3000 to the Court.

More info here:

– 1ª Carta al Presidente del Gobierno