OPINION CONCLUSIONS: Directive 2019/1937 also closes the circle on Transparency. A new fundamental right, that of access to information, has emerged. This right is particularly linked to public administrations.
FIRST.- The enactment of Law 19/2013 by Mariano Rajoy’s executive established a Law on Transparency. Even so, it left Spain at a lower level than other European countries: the Spanish law did not recognize access to public information as a fundamental right. This did not go unnoticed in Brussels.
SECOND.- In practice, one out of every three requests for transparency is not accepted for formal reasons, and another third is accepted because of the explicit will of the administration, which knows that, even if it is condemned to reply, years will pass and the petitioner will exhaust his resources and probably also his/ her patience. One of the main excuses is precisely the rejection of the petition in order to protect personal data. The rule has now changed; the procedure will have to go through the complaint channels of Directive 2019/1937.
THIRD.- With the approval of the Maastricht Treaty (TEU) and, subsequently, with the entry into force of the Treaty of Amsterdam, the right of access to Community documents has become an autonomous fundamental right, independent of freedom of expression and the general right to receive information, associated with Community citizenship, which is essential for considering the European Community as a democratic “State” within the meaning of Article 6 of the TEU.
FOURTH.- As part of the right to good administration, the Charter of Fundamental Rights includes the right to transparency, i.e. “the right of every person to have access to the administrative file concerning him or her, subject to respect for the legitimate interests of confidentiality and professional and business secrecy” (Article 41) and the right of access to documents by providing that “any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has a right of access to European Parliament, Council and Commission documents” (Article 42).
FIFTH.- The designation of access to information as a fundamental right, with the same legal categorization as the right to life or privacy, must preside over any relationship between the state and the citizen. And it has been established as absolute with a few limitations: data protection when it cannot be made anonymous, intellectual property and national security.
SIXTH.- Access to information is a fundamental right. The Charter of Fundamental Rights of the European Union states that everyone has the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
SEVENTH.- The documents produced by public sector bodies of an executive, legislative or judicial nature constitute a broad, diverse and valuable set of resources that can benefit society. Providing this information, including dynamic data, in a commonly used electronic format allows citizens and legal entities to find new ways to use it and to create new and innovative products and services. Any document they have produced, in any format, is public.
EIGHTH.- All data from all public bodies are included without exception, from the Constitutional Court to the Royal House, from police activities to prisons, including data on the transparency of Members of Parliament and public registers.
NINTH.- Fees for the reuse of documents are a major market entry barrier for emerging companies and SMEs. Documents should therefore be made available for re-use free of charge and, where charges are necessary, these should in principle be limited to marginal costs.
TENTH.- Open access to data means the practice of offering end users free online access to research results, with no restrictions on use and reuse other than the possibility of requiring acknowledgement of authorship.
