Is this a step toward open government?

Outsiders are amazed to discover that Spain lacks a transparency law in 2013 But many doubt that the country's new legislation will live up to that abroad

Joseba Elola
Manifestaciones en Liubliana contra el exprimer ministro por su implicación en un caso de corrupción.
Manifestaciones en Liubliana contra el exprimer ministro por su implicación en un caso de corrupción. Srdjan Zivulovic (Reuters)

The 27 elementary students in Roy Bridge, a remote rural community in the Scottish Highlands, were about to lose their school. It was December 2006, and the regional authorities had decided to shut down the center and transfer the children to the new primary school at Spean Bridge, about five kilometers away, after building a new extension to accommodate them. A Highland Department of Education report stated that this move would reduce costs. But the community wasn't so sure, and decided to do something about it.

Turning to Scotland's Freedom of Information Act - a landmark law for all those who believe in the benefits of transparency - they requested access to the reports that the decision had been based on. The people of Roy Bridge then submitted these reports to an independent expert review, which found serious mistakes in the demographic and financial projections used by the Department of Education. The experts concluded that moving the students from Roy Bridge to Spean Bridge would not, in fact, result in savings. In May 2008, after waging an 18-month battle, the parents managed to keep the school open.

This short story illustrates the way in which citizens can influence political decision-making when they are assisted by good transparency laws. And this is exactly what is not going to be happening in Spain any time soon, according to several groups that have long been pushing for transparency legislation.

Our situation of opacity is going to change very little," says one campaigner

"Our current situation of opacity is going to change very little," says Victoria Anderica, a lawyer and campaign coordinator for a Madrid-based group called Access Info. "But we will not be satisfied with a mediocre law."

José Luis Ayllón, the state secretary for parliamentary relations, has been closely involved in the drafting of Spain's upcoming transparency law, and he disagrees with this appraisal. "This has been one of the most widely debated laws in recent times," he says. "In many cases it goes beyond other countries' [transparency laws]: that is the advantage of getting there last."

Indeed, Spain trails the pack on this issue. Outsiders are often amazed to discover that the country should still lack a transparency law in the year 2013. Sweden, for example, has had one since 1776. Latin American countries, in general terms, drafted theirs in the 1990s. But Spain is still working on it.

The Roy Bridge case also triggered a legislative change: ever since then, local authorities must be consulted before the Highland Council can decide on issues such as the closure of schools. And this was all made possible by the transparency law and the powers vested in the Scottish Information Commissioner. "The authorities refused to hand over demographic information," explains Kevin Dunion, who was the commissioner at the time, and held the post for eight years. "It is always difficult to ask elected officials for explanations regarding what their decisions were based on."

In Scotland, says Dunion, the authorities have to hand over internal reports and studies that formed the basis for decisions, should the commissioner request them. Legislation establishes that email exchanges between civil servants using their public accounts are also subject to public scrutiny. If authorities refuse to disclose a document, it is up to them to explain why, and the damage that would result from its release. "And this is one of the keys," adds Dunion. "Making the statistics and figures that politicians base their decisions on available to the public is essential to modern government; it helps citizens understand that decision-making is no easy task."

In Scotland, emails between civil servants are subject to public scrutiny

Access to public workers' emails revealed that the decision to shut down the school in Roy Bridge had been taken even before the report with the flawed information was produced.

The transparency bill that was sent to the Spanish Senate last week talks about releasing "records and reports that went into the drafting of regulatory texts," but it excludes requests for "information of an auxiliary or supporting nature such as notes, drafts, opinions, summaries, internal communications and reports or communications between administrative bodies (new article 18)."

Nataša Pirc, a journalist with a background in law.
Nataša Pirc, a journalist with a background in law.

"That's the most unacceptable part," says an indignant Helen Darbishire, of the Access Info coalition. "The limitations of this law reflect the current behavior of government in Spain."

It's a fine line between what constitutes an internal report and what does not, and in government there is no specific classification to determine which reports would be accessible.

State secretary Ayllón argues that the legislations of countries such as France, Germany and Portugal do not open the door to exposing emails and preliminary studies. He says the main thing to focus on is what affects citizens directly, not the opinions issued during the decision-making process.

But not everyone agrees. "Excluding emails and drafts gives authorities a lot of leeway to conceal information," says Toby Mendel, executive director of the Canadian-based Center for Law and Democracy, a non-profit that focuses on freedom of speech and access to information. In his country, he explains, citizens can demand the release of emails: "They are the equivalent of what ordinary mail used to be," he says.

Former Scottish Information Commissioner Kevin Dunion.
Former Scottish Information Commissioner Kevin Dunion.

In Slovenia, the law works a lot like Scotland or Canada in this respect. The burden of proof is on the authorities, who have to demonstrate that revealing certain information would have a detrimental effect that prevails over public interest. A case in point was the Patria affair, which ultimately led to a corruption conviction against former Slovenian Prime Minister Janez Jansa.

It happened in 2007. The information commissioner had to make a delicate decision regarding a request for information about the purchase of military equipment. The Defense Ministry claimed this was classified information, but in Slovenia the commissioner has the power to declassify secret material in the name of public interest - which is what she did. Her report held that because it was a public contract and because it pertained to the largest arms purchase in Slovenia's entire history, the ministry had to release the documents. And it did.

"The information was very relevant," says Kristina Kotnik, the deputy commissioner. "Had it not been accessible, nobody would have found out about our former prime minister's corruption case."

The courts sentenced ex-Prime Minister Janez Jansa to two years in prison for soliciting bribes from a Finnish company to help it secure a military supply contract for 135 armored vehicles worth 278 million euros. Jansa, leader of the Democratic Party - now in the opposition - has appealed to the Supreme Court.

A commissioner who is committed to the cause of transparency, and who has the power to force authorities to declassify information in the name of public interest, is one of the keys to a modern transparency law, according to Access Info. Slovenia appointed Nataša Pirc, a journalist with a background in law. "The key to a transparency law is a commissioner with the courage and energy to get things moving," she says, speaking from her office in Ljubljana. "It takes knowledge and persistence. If the commissioner is appointed for political reasons and just gets an office and people to bring him coffee, then it will be of no use."

Pirc has a team of 30 people watching over transparency and data protection. Ten of them work exclusively to ensure that citizens have access to information.

Landmarks for the law

- Slovenia. Considered one of the world's most advanced transparency laws, the legislation in Slovenia grants the commissioner powers to order the disclosure of official email exchanges if it will advance the public interest. The commissioner can also inspect public agencies. Nataša Pirc, a former journalist with a background in law, has held the post for nine years.

- Scotland. Authorities have 20 days to reply to a request for information from the commissioner. If they fail to do so, they must explain why. Kevin Dunion, who was the commissioner for eight years, is considered a role model in terms of transparency.

- Sweden. The nordic country has had a transparency law for more than two centuries. Experts agree that this is one of the most transparent countries in the world - and not just because of its legislation, but also because of the prevailing culture of access to information.

- New Zealand. The country developed its own transparency law back in the 1960s. The system is based on the Ombudsman, a prestigious figure who is not easily denied information. The law allows requests for internal communications and even the agendas of official meetings.

- Brazil. The issue in the Latin American country is not just transparency, but also open government. Citizens have the tools to oversee public spending, and, in cities such as Porto Alegre, they can use the internet to influence decision-making.

In Spain, the Transparency Commission will be made up of a president (the only fully dedicated member), a deputy, a senator and representatives from the Audit Court, the Ombudsman, the Spanish Data Protection Agency, the Office of the State Secretary for Public Administration, and the Fiscal Responsibility Authority. "I would have liked to have seen 12 fully dedicated members," explains José Luis Ayllón, the secretary of state for parliamentary relations. "But the country is not ready for that right now."

The president of the Transparency Council (and Commission) will be elected by parliament. There will be no need for a qualified majority, which would necessitate political agreement; an absolute majority will do. José Enrique Serrano, the Socialist representative during the bill's parliamentary journey, believes a qualified majority would have been better. He also questions the notion of an independent expert. "Expert in what? Independent from whom? There is no such thing," he argues. "It makes no sense for this person to be a filter, or an activist. The right thing would be to pick a jurist, because the point is to act against the government when it blocks information requests."

Manuel Villoria, a professor of political science and member of Transparency International, says that the Spanish law will meet and surpass bare minimum requirements, but he warns that "the Council could end up being a body of political commissioners appointed by the parliamentary majority." David Cabo, director of a pro-transparency group called Civio, agrees: "There will be people who are appointed arbitrarily by the government."

There are various transparency models in the world, and the ones that work best are not always the ones with more advanced legislation. The key lies in the prevailing culture of transparency, and in the commissioner's powers and willingness to uphold the public interest. In the 1960s, New Zealand came up with a special ombudsman for information access. "The political cost of turning down a petition from the ombudsman there is very high," explains Fabrizio Scrollini, a London-based transparency scholar who is working on a comparative study of the transparency systems in New Zealand, Chile and Uruguay.

Scrollini, who is also the president of the transparency association DATA (for Datos Abiertos, Transparencia y Acceso a la Información, or Open data, transparency and access to information), says that the issue of transparency is on the Uruguayan public agenda right now. The laws there enabled the disclosure of information about problems with drinking water in Montevideo; these documents had initially been withheld by the government, alleging they would create public alarm.

"That is a huge lie," says Scrollini. "The alarm was created by all the rumors, and it spread because the government did not release the information in time. In a connected world, what people are scared of is not having information."

Scrollini says that Uruguay has a far-reaching law, but because it is linked to the courts, there are significant legal costs for petitioners. Chile, he explains, has a pretty independent Transparency Council. "In Latin America there are few countries left without a law on access to information. Most have very high standards and were developed during the 1990s."

But once the law is approved, he adds, the problems begin. "That is when the great fight against resistance to transparency begins." The Slovenian commissioner agrees: "This is always a battle - a constant tug-of-war with the authorities."

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