Holes appear in government's new transparency law

The text of the draft Transparency and Good Government Law released this week by the government lists a series of exceptions to the right to information on economic and environmental matters.

It indicates that public administrations are not obliged to facilitate information on “economic and commercial interests” and neither on “economic and monetary policy” if doing so would result in harm being caused in these areas.

The law leaves it up to the administration concerned to gauge whether or not releasing such information would cause damage. Apart from economic data, the draft law also imposes restrictions on divulging information on administrative duties such as overseeing the protection of intellectual and industrial property.

The text excludes the application of the transparency rule to the content of drafts, opinions or summaries drawn up by administrations or any other “auxiliary” material they use to arrive at decisions.

The bill allows for the possibility of administrative “silence” in response to a citizen's request

The new law will also not apply to the Royal House, which is not considered to be an “administration” as flagged by Deputy Prime Minister Soraya Sáenz de Santamaría. On its own initiative, King Juan Carlos at the end of last year provided for the first time a breakdown of the spending of the public funds assigned to the royal household by Congress.

That move came after the king’s son-in-law Iñaki Urdangarin’s private businesses became the focus of a public corruption inquiry in Palma de Mallorca, leading eventually to his indictment on charges of misappropriation of public funds, falsifying documents and fraud.

The transparency law, however, will cover the General Council of the Judiciary (CGPJ) legal watchdog organization and the Constitutional Court.

The new law, however, is more specific about the sort of information administrations will have to make public on their websites. This includes information of an institutional and organizational nature, but also legal and economic data such as contracts awarded and subsidies provided.

However, the text is less clear on the treatment of specific requests for information on the part of citizens in that it allows for the possibility of administrative “silence” in response. In other words, if there has been no response to a request after a month it will be understood to have been “rejected.”

The government has opened up a period of 15 days in which people can comment on the draft law after which it is due to be presented to Congress. The government plans to modify an existing organization to transform it into what will be known as the State Transparency Agency, which will be responsible for ensuring that the law is applied.

This organization will be headed by someone nominated by the Finance Ministry but can be vetoed by Congress.

The Good Government component of the draft law identifies seven ethical principles — among which are impartiality, good faith and dignity — and nine specific principles of operation such as requiring public officials to reveal any irregularities or not to accept gifts other than those given under normal protocol.

It also specifies infractions and penalties accompanying such infringements but does not mention the organic law, meant to accompany the transparency law, which will deal with criminal cases of public officials who hide or falsify accounting information.

The central government itself will be responsible for safeguarding compliance with the principles of good government, and in the case of ministers and secretaries of state, the Cabinet.