This chapter looks at the constitutional, international, legal, and regulatory provisions that give rise to IGAIs. It highlights the decisive role played by the political organisation of OECD member countries (unitary, decentralised, or federal) in shaping the nature and number of IGAIs, be they single, national IGAIs, central and subnational IGAIs, federal IGAIs, or IGAIs that represent federated entities. It also emphasises that the jurisdiction of an IGAI, especially a local one, is the result of the political organisation of the country in question.
Institutions Guaranteeing Access to Information
OECD and MENA Region
Chapter 1. The creation of IGAIs and their area of jurisdiction
Abstract
IGAIs are directly or indirectly subject to various provisions of international conventions, including the principles on the right of access to information issued by the OECD.
IGAIs of member states of the Council of Europe and the European Union are also subject to a large number of obligations defined by these two organisations. Ultimately, international rules interact with the constitutional framework of each country to determine the existence of the IGAIs and the ways in which they perform their duties.
1.1. The bases for IGAIs
IGAIs are created based on national and international provisions that set forth the law that these institutions apply in accordance with the conception of the right in each country.
1.1.1. The international sources of the right to access information
The UN
Upon the UN General Assembly’s adoption of Resolution 59 in 1946, the UN has shown itself to be an ardent defender of the right to access information. This resolution states that “The General Assembly, Whereas Freedom of Information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated… Resolves therefore […] to authorize the holding of a conference of all Members of the United Nations on freedom of information”1. This text was followed by Article 19 of the Universal Declaration of Human Rights of 1948, according to which the terms freedom of expression express “the right… to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The OECD and the promotion of transparency
The OECD has long been at the vanguard of understanding current developments in our world and the concerns to which they give rise. So that member states can best respond to the needs of their citizens and guarantee human rights, the Organisation advocates for the observance and promotion of the right to access information, and it adopted a series of texts to support access to information and transparency2. These include the Principles and Guidelines for Access to Research Data from Public Funding. These principles are based on flexibility, transparency, compliance with the law, the protection of intellectual property, formal responsibility, professionalism, interoperability, quality, security, efficiency, accountability, and sustainability. Finally, one should cite the OECD Recommendation on the Principles for Transparency and Integrity in Lobbying.
Basing itself on its previous works, especially on the report “Open Government, The Global Context and the Way Forward” (OECD, 2016), the OECD published a new Recommendation by the Council on Open Government in December 2017 to help countries design and implement reforms by identifying a clear, realistic, evidence-based, internationally recognised and comparable framework for the governance of open government. Point 7 of this document states in particular that countries must: “proactively make available clear, complete, timely, reliable and relevant public sector data and information that is free of cost, available in an open and non-proprietary machine-readable format, easy to find, understand, use and reuse, and disseminated through a multi-channel approach, to be prioritised in consultation with stakeholders”.
Figure 1.1. Number of OECD member countries with laws on access to information and administrative documents (until 2018)
Source: OECD (2010), “Number of OECD countries with laws on access to information (1960-2008)”, in Government at a Glance 2009, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264075061-graph28_2-en; The Right to Information (2012), “Access to Information Law: Overview and Statutory Goals”, https://www.right2info.org/access-to-information-laws; Boletín Oficial del Estado (2013), “Ley 19/2013 de 9 de diciembre de transparencia, acceso a la información pública y buen gobierno" (Official Bulletin of the State, “Law 19/2013 of the 9th of December on transparency, access to public information and good governance”), https://www.boe.es/buscar/pdf/2013/BOE-A-2013-12887-consolidado.pdf for Spain; Journal officiel du Grand-Duché du Luxembourg (2018), “Loi du 14 septembre 2018 relative à une administration transparente et ouverte”, http://legilux.public.lu/eli/etat/leg/loi/2018/09/14/a883/joor.
The Council of Europe
Access to government documents has been progressively integrated into the law of the Council of Europe. Until the adoption of the Convention on Access to Official Documents on 18 June 2009, there was no general international treaty guaranteeing the right to access documents in any sort of binding manner. Council law referred the matter to “soft laws” or confined itself to prescriptions in specific areas, such as environmental law, especially with the Aarhus Convention3.
There are three major components of the Council of Europe’s Convention on Access to Official Documents worth retaining: “1. Each Party shall guarantee the right of everyone, without discrimination on any ground, to have access, on request, to official documents held by public authorities. 2. Each Party shall take the necessary measures in its domestic law to give effect to the provisions for access to official documents set out in this Convention. 3. These measures shall be taken at the latest at the time of entry into force of this Convention in respect of that Party”.4
These measures are accompanied by necessary restrictions, especially relating to national security, but they provide for total transparency for anyone who wishes to access information in the public domain, and they guarantee that this be simple and free of charge, in observance of the major principles of democracy. The Council of Europe’s Convention on Access to Official Documents brought together a number of countries, as it includes European Union countries plus Russia, Turkey, Georgia, Azerbaijan, Armenia, and Greenland.
The European Union
The European Union has implemented numerous measures to promote access to information. Regulation n° 2016/679 of the European Union, also referred to as the General Data Protection Regulation (GDPR), is the authoritative text on the issue of personal data protection. It strengthens and harmonises data protection of individuals within the European Union. Directive 2003/4/CE on the right of public access to environmental information is also an excellent illustration of this approach. The European Union’s directive on the re-use of public sector information (17 November 2003)5 specifies the new conditions for using public data. The right to access documents from EU institutions has matured considerably by now and constitutes a true citizen right that is monitored by the European Court of Justice. Access to documents complies with a general principle of transparency in the EU and constitutes an instrument of democratic oversight of the work of the European government6. Because it does not seek to ensure the protection of the legal status of individuals and legal entities, it does not require proof of a specific interest. It seeks to provide a service to citizens and businesses, to encourage their participation, and to promote an open, transparent government7.
The constitutional right to access information
In some OECD member countries, the right to access information is expressly stated in the country’s constitution. For instance, in 1974, the Swedish Constitution pronounced that “every citizen, in his/her relations with the public authorities, enjoys the following rights and freedoms: […] 2. Freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others”.8 Article 20 of the Spanish Constitution explicitly recognises and protects the right to communicate and receive truthful information freely, through any means of distribution9. Article 32 of Belgium’s Constitution guarantees citizen access to documents held by Belgian government authorities10. On 7 February 2014, Mexico amended Article 6 of its Constitution and considerably expanded the concept of information and the number of entities subject to obligations tied to access to information. Article 6 now states that information held by any authority or entity, as well as by any body with executive, legislative, or judiciary powers is public and its communication may only be prevented temporarily for reasons of public interest and national security, according to provisions of law. In interpreting this right, the principle of maximum publicity must prevail11.
In most OECD countries, though, the right to access information comes from other constitutional provisions, especially the right to the freedom of thought and expression. In the United States of America, freedom of access to information comes from the First Amendment to the Constitution of 1791, according to which “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (Kennedy, 2005; Bertrand, 2006). In France, this right was recognized by the case law of the Constitutional Council, which, based on Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789, ensures the free communication of thoughts and opinions12. In Italy, this right is closely tied to the right to express one’s thoughts, as defined in Article 21 of the Constitution13. Article 21 of Japan’s Constitution guarantees the freedom of assembly, association, expression, speech, the press, and any other form of expression. Even though this text does not expressly concern the right to receive and communicate information, the country’s Supreme Court believes that it protects the right to information.14
Although access to information per se does not constitute a right guaranteed by the constitutions of all OECD member countries, as in Canada, it nevertheless tends to form a fundamental, constitutional right in general (Mockle, 2010). The freedom of opinion, a cornerstone of modern democracies, is accompanied by the right to access information, as the goal of any democracy is not only equality, but also the formation of an enlightened opinion, something that cannot be attained without very extensive governmental transparency. Like the freedom of opinion and expression, the right to access information thus becomes “a fundamental freedom that is all the more precious, because its existence is one of the essential guarantees of the observance of other rights and freedoms, and of national sovereignty.”15
Box 1.1. The right to transparency in the Spanish Constitution
Article 20 of Spain’s Constitution explicitly recognises and protects the right to communicate and freely receive truthful information through any means of distribution. Article 105 states:
“The law shall regulate:
a) the hearing of citizens directly, or through the organisations and associations recognised by law, in the process of drawing up the administrative provisions which affect them; b) the access of citizens to administrative files and records, except as they may concern the security and defence of the State, the investigation of crimes and the privacy of individuals; c) the procedures for the taking of administrative action, guaranteeing the hearing of interested parties when appropriate.”
Laws
OECD member countries are characterised first of all by the passing of legislation that asserts the principle of free access to government documents, second by the general scope of this right, especially in defining communicable information and, lastly, by the existence of bodies responsible for guaranteeing the observance of the right to access information.
The oldest legislation on this topic is in Sweden, which has recognised the right to access information since 1776. It was followed by legislation in other Nordic countries16. The United States Freedom of Information Act (FOIA) dates to 1966, and Italy adopted a law on access to information on 7 August 1990. In the United Kingdom, the two laws regarding the right to access information entered into effect in 2005, in replacement of the prior system, regulated by the Public Records Act of 1958, which granted citizens the right to access public archives after 50 years. In Germany, the federal law on this matter entered into effect in 2006.
The Swedish system grants public officials the freedom of expression and the liberty to share the information at their disposal with third parties (Jonason, 2016). In France, freedom of access extends to all documents and information held by government administrations, in any form whatsoever, which most often excludes documents belonging directly to the government, the judiciary, or the legislature. In the United Kingdom, the right to information extends to sessions of Parliament.
In legal-technical terms, most of the time, as is the case with the Canadian law17, laws on the right to access information are ordinary laws that are likely to compete with other laws at the same level.
Sometimes, as in Quebec, the Constitution, national lawmakers, or federated entities give these laws a preponderant status to mark their importance and assert their hierarchical supremacy in the legal order. The National Assembly of Quebec decreed that the law on access to documents belonging to public bodies and on the protection of personal information, as well as the law on the protection of personal information in the private sector, must prevail over all general or previous laws that would contradict it. This precedence remains however subject to the condition that this contradictory legislation to the law on access to documents and the law on the protection of personal information does not state that it prevails of them.
Table 1.1. Breadth of the laws on freedom of information (2010)
Source: OECD (2011), Government at a Glance 2011, OECD Publishing, Paris, https://doi.org/10.1787/gov_glance-2011-en.
Requests to access information in three OECD member countries and Jordan from 2011 to 2013
This table compares the requests to access information received in Jordan, Mexico, the United Kingdom, and the United States. It lists the available data for each country between 2011 and 2013. Once the data was collected, descriptive statistical methods were used to generate a cross-comparative table of requests, complaints, and appeals involving access to information in the sample countries.
Table 1.2. Overview of the volume of requests to access to information
a. Percentage of the population making a request under the law on access to information (total number of requests divided by the number of inhabitants). Based on World Bank data available at http://data.worldbank.org/indicator/SP.POP.TOTL.
b. Percentage of requests awaiting a response in proportion to the total number of requests.
c. Until 15 December 2013.
d. 26% of all requests, which were deemed inadmissible, are not taken into account here.
e. While 704,394 requests were made during the 2013 budget year, 71,790 requests from the previous year were still awaiting a response at the beginning of the new budget year.
Source: Lemieux, V. et al., “Transparency and Open Government: Reporting on the Disclosure of Information”, CEDEM, https://openknowledge.worldbank.org/bitstream/handle/10986/22526/Requests0and0a0m00and0United0States.pdf?sequence=1&isAllowed=y
Table 1.3. Processing of requests to access to information
Source: Lemieux, V. et al., “Transparency and Open Government: Reporting on the Disclosure of Information”, CEDEM, https://openknowledge.worldbank.org/bitstream/handle/10986/22526/Requests0and0a0m00and0United0States.pdf?sequence=1&isAllowed=y
1.2. National, local, or federated IGAIs and their networks
The types of an OECD member country’s political organisation determine the scope of the laws on access to information. In heavily decentralised or federated countries, the division of powers between the central or federal government and the decentralised or federated entities yields two consequences. The national law often establishes a general framework that the federated entities adapt and complete according to their jurisdiction. It may also lie at the origin of national or federal IGAIs on one side and IGAIs representing local or federated entities on the other.
1.2.1. Institutions in unitary states
In unitary states, all constitutional powers are generally held at one level of government that solely possesses regulatory power to which all citizens are subject. Among the 36 member countries of the OECD, 28 fit this definition. In most unitary states, a national law sets the rules on access to information. However, in very heavily decentralised countries, like Spain or Italy, local entities enjoy a large power to apply the law on access to information. Some countries have a central IGAI and other IGAIs that belong to federal or local entities.
Single IGAIs in unitary states
Unitary states, such as France, have established a single IGAI that holds jurisdiction over the entire country. The same holds true for commissions on access to government documents, which exist in Italy and Portugal. Likewise, the Council for Transparency’s jurisdiction extends across all of Chile.
IGAIs in heavily decentralised states
In heavily decentralised countries, local institutions play a very important role in the right to information. In Spain, for example, most autonomous entities have adopted their own legislation on transparency and access to information, and have created their own web portals as well (Campos Acuña, 2017). The government of Aragon hosts a website devoted entirely to transparency, where requests can be made and certain kinds of information can be found, such as on the local government budget.
Moreover, in accordance with Article 24 of Spanish Law No. 19/2013 of 9 December 2013 on transparency, access to public information, and good governance, the Spanish government’s Council for Transparency and Good Governance is responsible for processing complaints against resolutions involving procedures for accessing public information, unless autonomous governments assign this jurisdiction to a specific body. To this end, the fourth additional provision of this same Law No. 19/2013 of 9 December 2013 states that, in the case of resolutions issued by autonomous governments and their public sector or by local entities included within their geographic scope of application, the complaint will be settled by the independent body determined by the autonomous governments. This same law provides that the autonomous governments and cities holding an autonomous status may assign this jurisdiction over the settlement of complaints to the Council for Transparency and Good Governance by entering into an agreement with the council to this end18.
In application of these provisions, eight autonomous Spanish entities, including Castile-La Mancha and the Estremadura, decided to entrust the resolution of disputes to the Council for Transparency and Good Governance19. Other autonomous governments, such as Andalusia and Catalonia, have instead assigned this jurisdiction to their own commissions for access to information, or to the Ombudsman (as in Galicia)20. The Basque commission for access to information is the specific body for monitoring transparency. It is specifically responsible for investigating complaints against government decisions refusing citizen access to public information that have been handed down by Basque government administrations21.
In Italy, when people are unsuccessful in their request to access documents from the state’s central or peripheral government administrations, they may file an appeal before the Commission for access to government documents. With regard to documents held by local government administrations, people must consult the Regional, Provincial, or Municipal Ombudsman holding jurisdiction22.
Historically, the United Kingdom has always been a highly decentralised country. The UK Freedom of Information Act of 2000 concerns public access to government documents belonging to central British government agencies and the public authorities in England, Wales, and Northern Ireland. At the national level, the United Kingdom has established two Information Commissioner’s Offices that cover the entire country. The Scotia Freedom of Information Act (FOISA) of 2002 concerns the Scottish executive, the public authorities, and Parliament. The FOISA led to the establishment of the Scottish Information Commissioner, who is responsible for promoting and applying the FOISA and the Environmental Information (Scotland) Regulations of 2004 (Scottish EIRs), as well as for processing requests to access documents.
1.2.2. The different structures in place in federal states
In federal states, federated states enjoy a large degree of autonomy and a complete state organisation that respects the sharing of powers with the federal level. The OECD has eight federal states among its members for whom the regulation and implementation of access to information is subject to a subtle sharing between the different levels of the state. Thus, the new Article 6 of Mexico’s Constitution sets forth the principles and bases for exercising the right to access information at the level of the federation, the individual states, and the federal district in the context of their respective jurisdictions23.The United States adopted the Freedom of Information Act (FOIA) in 1966 and amended it in 1996. This act regulates access to government documents at the federal level. However, all states, as well as the District of Columbia and some territories, have adopted similar laws providing for the communication of information by state bodies and local government administrations. Some states have increased the transparency of the federated entities by adopting laws on information regarding public meetings, which require them to be announced in advance and held publicly.
The United States Office of Government Information Services (OGIS) was created in 2007 and forms part of the national administration of archives and registers. As ombudsman for the FOIA’s application, the OGIS has two missions. It ensures the implementation of the FOIA by government agencies, and it makes recommendations to Congress and the President of the United States with the aim of improving the FOIA. It is also responsible for mediating between people making requests who invoke the FIOA’s application and federal agencies, without such mediation excluding court appeals. If the mediation does not lead to the conflict’s resolution, the OGIS may provide its advice. The OGIS also processes comments and complaints from federal agencies and the public for the purpose of improving FOIA procedures24.
The Officer of the Information Commissioner of Canada was created in 1983 in application of the law on access to information, with the aim of helping private citizens and entities that believe that federal institutions have ignored their rights. The Commissioner’s Office thereby ensures the observance of both the rights of government organisations and of any concerned third party25. Other provincial Canadian entities have established IGAIs that are responsible for their affairs, such as the Information and Privacy Commissioner of Ontario or the Quebec Commission on Access to Information26.
The National Institute for Transparency, Access to Information, and the Protection of Personal Data (INAI) is an autonomous constitutional body of the United Mexican States. It was established in May 2015 following the adoption of the general law on transparency and access to information27. It is responsible for guaranteeing people’s right to access public government information, protecting personal data held by the federal government and private persons, and ruling on refusals to access information formulated by entities belonging to the federal government or that depend on it. Alongside the INAI are the IGAIs in Mexico’s Federal District and the federated states, such as the Institute for Transparency, Access to Public Information, the Protection of Personal Data, and Accountability of Mexico City or the Commission on Transparency and Access to Public Information for the state of Querétaro28.
The Belgian Constitution assigns jurisdiction to all subnational lawmakers for regulating access to government documents. This occurs most often by sorting access to information requests depending on whether or not they concern the environment. At the federal level, the law of 11 April 1994 on government publicity created the Commission for Access to Government Documents, which issues opinions in total independence and neutrality whenever a government administration refuses to provide access to a piece of information. For Wallonia and the Brussels-Capital Region, the Commission for Access to Government Documents is an independent, regional government authority that issues its opinion when someone wishes to obtain a document held by an authority that has refused to communicate it. The Commission also holds decision-making powers regarding the environment.
In Germany, the federal law on the freedom of information entered into effect in 200629. As a result, the German Commissioner for the Protection of Personal Data took on the role of Commissioner for the Freedom of Information30. At the federal level, twelve of sixteen Länder, or regions, have adopted similar legislation to date. These laws apply to the communication of documents held by the Länder’s authorities. Each Land also has its own Commissioner for the Protection of Personal Data (who may also take on the role of Commissioner for the Right to information, depending on the legislation in effect).
Box 1.2. The Commissioner for the Protection of Personal Data and Freedom of Information for the Land of Berlin
The Commissioner for the Protection of Personal Data and Freedom of Information for the Land of Berlin ensures the observance of the legislation on the protection of personal data and confidentiality, provides advice, and ensures the fundamental right to informational self-determination.
Its jurisdiction extends over the authorities and other public bodies in the Land of Berlin, as well as over private bodies, such as businesses and associations established in Berlin. Since 1999, it also ensures the observance of the right to access personal data and information.
The Commissioner is elected by the Berlin House of Representatives (Abgeordnetenhaus) to a five-year term of office. Re-election is permitted. The Commissioner enjoys independence in the exercise of its functions and is only subject to the law.
Source: Berliner Commissioner for the Protection of Personal Data and Freedom of Information, https://www.datenschutz-berlin.de/berliner-beauftragte.html.
1.2.3. The network of IGAIs
IGAIs do not exactly have a network of devolved or decentralised services, but some of them use officials that are specifically delegated for access to information. For example, the US Open Government Act, which amended the FOIA in 2007, requires that a high-level official is appointed who in turn appoints several persons in charge of applying the law. Likewise, the Spanish central government offices involved in transparency and access to information constitute a network that also includes the management centres, the Transparency Information Offices, and the Central Transparency Information Office31.
At the subnational level, Article 8 of the 1982 Quebec law on access to documents belonging to public bodies and on the protection of personal information provides that each public body must designate the highest-ranking person within the body as responsible for applying the law. This official may designate a high-ranking staff member as the responsible person.
In France, the major government administrations must designate a person responsible for access to documents and questions regarding the reuse of information (PRADA). The list of responsible officials and their contact information are on the website of the Commission for Access to Government Documents, or CADA, and the relevant government administrations. The creation of this network has contributed to the improvement of government administrations’ conduct. The CADA publishes a monthly informational letter to the attention of the PRADAs that discusses problems regarding the different categories of documents.
Box 1.3. Persons responsible for access to government documents within French government administrations (PRADA)
In 2005, French legislation provided for the designation of persons responsible for access to government documents and questions regarding the reuse of public information within government administrations (PRADA). Their mission consists of receiving communication requests and any complaints, overseeing their investigation, and acting as a liaison between their administration and the Commission for Access to Government Documents, or CADA. These officials may also draft an annual report on requests to access government documents and licences to reuse public information. In choosing such person, the administrative authority must consider the compatibility of the missions with the duties exercised, the person’s skills, his or her position within the administrative structure, and the person’s availability. The designated person is most often a public official, but there is no provision preventing this person from being an elected official.
The government authorities concerned and the means of appointing PRADAs
The network of responsible persons involves most government entities that hold or process administrative documents. The following are required to designate a responsible person: ministers and prefects, presidents of regional and general councils, mayors of towns with more than 10,000 inhabitants and presidents of public establishments for inter-municipal cooperation with more than 10,000 inhabitants, and directors of national and local public establishments that employ at least 200 agents. Lastly, this obligation extends to any public and private institution responsible for managing a public service and employing at least 200 agents. The legislation does not require a strict formalisation of the responsible person’s appointment (by resolution or decree). However, it does give rise to an act of appointment that includes the responsible person’s first and last name, profession and professional contact information, as well as the contact information for the appointing authority. The appointment is announced to all administered persons and all services within the appointing government administration according to the most appropriate procedures, for example via publication on the government administration’s website.
The role of PRADAs
Facilitating the investigation of requests
Persons wishing to obtain a document or to reuse public information may contact a responsible person who will facilitate the investigation of his/her request. However, in most government administrations, the communication of government documents is organised by the offices involved in the request. Thus, the PRADAs are often the contact persons who are kept informed of the difficulties encountered with accessing government documents or with reusing public information. They are not responsible for answering all requests themselves.
Providing expert legal opinions
PRADAs provide government administrations with expert legal opinions to facilitate the full application of the law and to help them understand their obligations. Depending on the missions entrusted to them, responsible persons may advise their own administration on the investigation of specific applications or investigate them themselves. They may also suggest improvements to facilitate access to the communicable documents in application of the law within the shortest timeframe possible.
Acting as a liaison with the CADA
PRADAs help transmit information between administrative authorities and the CADA, inform on the case law on access to information, and increase the effectiveness and speed of the review of requests for opinions and advice.
Identifying the need to consult the CADA
The existence of the PRADAs helps establish with greater certainty whether a request for advice duly filed with the CADA is necessary. For matters on which the CADA provides a constant, well-established response, its website (www.cada.fr) contains information that gives the government administration the ability to respond in a relevant manner to the requests for communication it receives. The Commission’s secretary general also responds to questions asked by the administrations and sends them opinions or advice issued before by the Commission on similar subjects.
Being an interlocutor during the review of requests for opinions
The term of one month granted to the CADA to notify its opinion is very brief. The Commission consults the government administration in question, which must respond quickly. If the government administration’s refuses to communicate, it is essential that it highlights the legal and factual elements in its response to the Commission on which it has based its decision. The CADA’s secretary general sends the PRADA requests for opinions that concern the PRADA’s own administration. The PRADA thereby has the contact information of the person responsible for reviewing the request and can determine the office that received the request or prepare the response that the administration will send to the CADA.
Source: French Commission for Access to Government Documents, www.cada.fr/les-personnes-responsables-de-l-acces-au-sein-des,6152.html (website).
Box 1.4. The offices for transparency and access to information within the Spanish central government
The Management Centres are:
the entities that hold public information developed or acquired in the course of their work;
the responsible bodies for handling requests to access information;
the responsible bodies for proactive information disclosure.
The Transparency Information Offices (UIT):
are specialised offices;
are situated within each state ministry (in addition to two special UITs within the Treasury Department of the Social Security Agency and within the Spanish Data Protection Agency);
receive access to information requests ;
refer the requests to the various management centres within the ministries;
ensure the follow-up and oversight of the proper processing of requests for access.
The Central Transparency Information Office (Central UIT):
since 2017, this has been the Central Office of Public Governance within the Ministry of Public Finance and Public Service.
is a specialised office;
ensures the coordination and oversight of the UITs;
is responsible for the Transparency Portal;
oversees the digitization of the processing of requests for access (GESAT).
The Council for Transparency and Good Governance (the Spanish IGAI)
is a public, independent, body;
is responsible for guaranteeing access to information and responding to administrative appeals;
assesses the Transparency Portal;
does not hold the power to inflict penalties (due to the absence of an implementing regulation to this effect).
Source: Portal of Transparency, General Administration of the State, Spain, http://transparencia.gob.es/transparencia/transparencia_Home/index.html (website)
Figure 1.2. The circuit for accessing information from the Spanish government
Source: OECD (2016), OECD Public Governance Reviews: Spain 2016, OECD Publishing, Paris http://www.oecd.org/spain/oecd-public-governance-reviews-spain-2016-9789264263024-en.htm
References
Bertrand, C.-J. (2006), Le Premier Amendement: un mythe [“The First Amendment: a Myth”], Transatlantica, 1/2003, http://transatlantica.revues.org/545.
Campos Acuña, M. C. (2017), Transparencia y acceso a la información en las corporaciones locales [“Transparency and access to information from local bodies”], Wolters Kluwer, Madrid
Quebec Commission on Access to Information (2016), Rétablir l’équilibre, Rapport quinquennal 2016 [“Re-establishing the Balance: 2016 five-year report”], Governement of Quebec, Quebec, www.cai.gouv.qc.ca/documents/CAI_RQ_2016.pdf.
Jonason, P. (2016), Le droit d’accès à l’information en droit suédois: une épopée de 250 ans [“The right to access information in Swedish law: a 250-year saga”], Revue Internationale de droit des données et du numérique [“International Law Review of Data and Digital Law”], Vol. 2 (2016), pgs. 37-50, http://ojs.imodev.org/index.php/RIDDN/article/view/137/175.
Kennedy, J. (2005), “The right to receive information: the current state of the doctrine and the best application for the future”, Seton Hall Law Review, vol. 35:789, http://law.shu.edu/Students/academics/journals/law-review/Issues/archives/upload/Kennedy.pdf.
Mockle, D. (2010), La constitutionnalisation des mécanismes et des principes de bon gouvernement en perspective comparée [“The constitutionalisation of the mechanisms and principles of good government seen from a comparative perspective”], Les Cahiers de droit [“Law Journals”], Vol. 51, No. 2, https://www.erudit.org/fr/revues/cd1/2010-v51-n2-cd4001/045633ar.pdf.
OECD (2016), OECD Public Governance Reviews: Spain 2016, OECD Publishing, Paris http://www.oecd.org/spain/oecd-public-governance-reviews-spain-2016-9789264263024-en.htm
OECD (2016), Open Government, The Global Context and the Way Forward, OECD Publishing, Paris, http://www.oecd.org/fr/gov/gouvernement-ouvert-9789264280984-fr.htm. (put link to English version)
OECD (2011), Government at a Glance 2011, OECD Publishing, Paris, http://dx.doi.org/10.1787/go v_glance-2011-fr.
Notes
← 1. Resolution 59, Calling of an International Conference on Freedom of Information, 1946.
← 2. Recommendation of the Council for Enhanced Access and More Effective Use of Public Sector Information; Recommendation of the Council on Principles for Public Governance of Public-Private Partnerships; Recommendation of the Council on Regulatory Policy and Governance; Recommendation of the Council on Digital Government Strategies; Recommendation of the Council on Budgetary Governance; Recommendation of the Council on Gender Equality in Public Life; Recommendation of the Council on Public Procurement; Recommendation of the Council on Water; Recommendation of the Council on Public Integrity.
← 3. See OECD (2010), “Council Recommendation on Principles of Transparency and Integrity for Lobbying”, », https://legalinstruments.oecd.org/fr/instruments/256.
← 4. Article 2, Right to access official documents, Council of Europe Convention on Accessing Official Documents of 18 June 2009.
← 5. European Parliament and Council of the European Union, “Directive 2013/37/UE by the European Parliament and Council of 26 June 2013 amending Directive 2003/98/CE on the re-use of public sector information”, Official Journal of the European Union No. 175/1, 27 June 2013, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32013L0037&from=FR.
← 6. Salvadori, M. (date unknown) Il diritto di accesso all'informazione nell’ordinamento dell’Unione Europea [“The right to access information in European Union law”]
← 7. Margherita Salvadori, Il diritto di accesso all'informazione nell’ordinamento dell’Unione Europea, [“The right to access information in European Union law”] http://www.evpsi.org/evpsifiles/UE-Diritto-accesso-Salvadori.pdf
← 8. Sweden, Constitution of 28 February 1974, Chapter II: Fundamental freedoms and rights, Article 1, available at http://mjp.univ-perp.fr/constit/se1974.htm.
← 9. Article 20 of the Spanish Constitution, available at http://www.derechoshumanos.net/constitucion/articulo20CE.htm.
← 10. Access to government documents was included in the Belgian Constitution as of 1992; Article 32 came into effect in 1995: “Everyone has the right to consult any government document and to receive a copy of it, except for those cases and under those conditions set by law, decree, or the rule set forth in Article 134”.
← 11. Article 6: “I. All information in custody of any authority, entity or organ of the Executive, Legislative and Judicial Powers, autonomous organisms, political parties, public funds or any person or group, such as unions, entitled with public funds or that can exercise authority at the federal, state or municipal level is public. This information may only be reserved temporarily due to public interest or national security, following the law provisions for this. The principle of maximum disclosure shall prevail when interpreting this right. The obligated subjects (obligors) must record every activity that derives from their authority, competence or function, the law will specifically establish the assumptions under the declaration of inexistence of information shall proceed”. Reform of Article 6 of the Political Constitution of Mexico, published in the Official Journal of the Federation on 7 February 2014, http://www.dof.gob.mx/nota_detalle.php?codigo=5332003&fecha=07/02/2014.
← 12. Constitutional Council, Decision No. 84-181 DC of 11 October 1984, on the law limiting concentration and ensuring financial transparency and pluralism in media companies; Decision No. 86-217 DC of 18 September 1986, on the law on freedom of communication; Decision No. 82-141 DC of 27 July 1982, on the law on audio-visual communication.
← 13. Constitutional Court of the Republic of Italy, Case No. 420 of 7 December 1994.
← 14. 14 See Article 19, “Country Report : The Right to Information in Japan,” 6 October 2015, https://www.article19.org/resources/country-report-the-right-to-information-in-japan/
← 15. Decision of 10-11 October 1984 by the French Constitutional Council.
← 16. For Norway, see the “Freedom of information Act - Act of 19 May 2006 No. 16 relating to the right of access to documents held by public authorities and public undertakings”, available athttps://app.uio.no/ub/ujur/oversatte-lover/data/lov-20060519-016-eng.pdf; for Denmark: “The Danish Access to Public Administration Files Act”, Act No. 572, 19 December 1985, available at: https://www.parlament.cat/document/intrade/723.
← 17. See the Decisions by the Supreme Court of Canada, Canada (Information Commissioner) vs. Canada (Commissioner of the Canadian Royal Police), https://scc-csc.lexum.com/scc-csc/scc-csc/fr/item/2038/index.do.
← 18. See the Spanish government’s Transparency Portal at http://transparencia.gob.es/transparencia/transparencia_Home/index/MasSobreTransparencia/Comunidades-autonomas.html.
← 19. For a list of conventions signed by the State Council for Transparency and Good Governance and Spanish municipalities, see: www.consejodetransparencia.es/ct_Home/transparencia/portal_transparencia/informacion_econ_pres_esta/convenios/conveniosCCAA.html.
← 20. See the Spanish government’s Transparency Portal at http://transparencia.gob.es/transparencia/transparencia_Home/index/MasSobreTransparencia/Comunidades-autonomas.html.
← 21. See the Spanish government’s Transparency Portal at www.gardena.euskadi.eus/transparencia/-/derecho-de-acceso-a-la-informacion-publica/#4191.
← 22. Supreme Administrative Court of the Czech Republic and ACA Europe (2015), “Supreme Administrative Courts and the evolution of the right to publicity, privacy, and information, Brno,
← 23. Secretary of the Interior (2014), Decreto por el que se reforman y adicionan diversas disposiciones de la Constitución Política de los Estados Unidos Mexicanos, en materia de transparencia [“Decree reforming and adding several provisions on transparency to the Political Constitution of the United Mexican States”], United Mexican States, www.dof.gob.mx/nota_detalle.php?codigo=5332003&fecha=07/02/2014.
← 24. The Office of Government Information Services, www.archives.gov/ogis (site web).
← 25. Office of the Information Commissioner of Canada, www.oic-ci.gc.ca/fra/abu-ans_who-we-are_qui-sommes-nous.aspx (site web).
← 26. Quebec Commission for access to information https://www.oneauthor.org/
← 27. United Mexican States, Ley general de transparencia y acceso a la información pública [“General law on transparency and access to public information”], Official Journal of the Federation, 4 May 2015, www.diputados.gob.mx/LeyesBiblio/pdf/LGTAIP.pdf.
← 28. Commission on Transparency and Access to Public Information in the State of Queretaro, www.ceigqro.org.mx/ (site web).
← 29. Federal Ministry of Justice and Consumer Protection (2006 et 2013), “Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act)”, http://www.gesetze-im internet.de/englisch_ifg/englisch_ifg.pdf.
← 30. FreedomInfo.org (2005), www.freedominfo.org/2005/08/german-federal-data-protection-commissioner-to-become-freedom-of-information-commissioner/.
← 31. As indicated, the Council on Transparency and Good Governance is the national Spanish IGAI, and it enjoys legal autonomy.