Spanish government using courts to avoid freedom of information requests

Ministries and public firms have filed five appeals against Transparency Council rulings

The Spanish government’s transparency website.
The Spanish government’s transparency website.EL PAÍS

The Spanish government has begun taking legal action to avoid having to answer to taxpayers who make information requests through a supposed transparency law it passed in December 2014.

State lawyers have presented five appeals against requests for information on subjects that include spending at state broadcaster RTVE and the National Mint, as well as the hiring policy at state-owned environmental services company Tragsa.

The Prime Minister’s Office has also lodged appeals to avoid having to release reports on the government’s progress on improving transparency.

Spain’s transparency law covers requests for information and access to public documents. When the government denies a request or does not supply sufficient information, members of the public can appeal to the Transparency and Good Government Council, the organ tasked with overseeing compliance with the law.

“Going to court against a Council ruling to avoid giving information about transparency is simply astonishing”

Generally, its rulings are accepted by both government and the public, but it is possible to appeal its decisions in the courts. But, against expectations, so far it is the Spanish government filing the appeals, in order to avoid answering requests for information.

For example, in August 2015, Access Info Europe, which campaigns for freedom of information, requested copies of the reports that the Spanish government was required to present on its progress within the Open Government Partnership (OGP). The Spanish Prime Minister’s Office turned down the request, saying such reports were for internal use only. But the Transparency Council disagreed, and ruled in favor of Access Info Europe, telling the government that it had 15 days to hand over the documents.

Instead, the Prime Minister’s Office appealed the ruling. “Lodging an appeal is an option foreseen by the law, but in this case it is particularly surprising,” says Luisa Izuzquiza of Access Info.

Conflicts of interest

The appeals lodged against the Transparency Council’s decisions by the government through its ministries and state-owned companies are creating problems. The Solicitor General’s Office, which files appeals on behalf of the government, has had to withdraw from a number of cases as a result of conflicts of interest.

Transparency Council President Esther Arizmendi explains that the body has signed an agreement with the Solicitor General’s Office for it to represent it in court. But given that such cases involve two public bodies, the office has had to withdraw from representing the Council for conflict of interest reasons, meaning the latter has had to hire private lawyers to represent it against the government of which it is itself a part.

“We would like to be able to represent ourselves in court without it costing the taxpayer,” says Arizmendi, who adds that the government is legally entitled to appeal against the Transparency Council’s decisions, but that the body will defend its rulings “to the end.” It also points out that of the 600 resolutions it has issued so far, only one percent have been subject to appeal.

“Going to court against a Council ruling to avoid giving information about transparency is simply astonishing.”

Spain presented its first voluntary OGP plan in 2012 and the second in 2014. Joining the initiative – which is led by the United States, the United Kingdom and Brazil, and includes 69 countries – means taking specific action to improve transparency. This essentially involves providing access to information. In the case of Spain, relations with the OGP are coordinated by the secretary of state for relations with congress, who is overseen by Deputy Prime Minister Soraya Sáenz de Santamaría.

“The Transparency Council cannot oblige the government to respond, it can only advise it to do so,” says Jesús Lizcano, president of Transparency International Spain, who admits he is surprised by the government’s response.

“Governments are supposed to be transparent: right now there are too many exceptions being made to the law and we need to approve the rules that would develop it,” he says.

The government released an outline of the rules in July of last year, but nothing has been heard since. “The right to know should prevail except in a few outstanding cases,” says Lizcano.

As well as the appeal launched by the Prime Minister’s Office, four others filed by public companies are to be settled by the courts.

How much does the Eurovision Song Contest cost Spain?

State broadcaster RTVE has lodged two appeals in the courts against two Transparency Council decisions. In May 2015, a member of the public requested information relating to the cost of the Eurovision Song Contest to the Spanish taxpayer: travel, accommodation, expenses, clothes… RTVE did not even bother to answer, so the case went before the Council, which in turn asked RTVE for the information, which in turn replied that revealing the information could harm it economically. The Council dismantled RTVE’s arguments and ruled in favor of the original request.

On another occasion, RTVE was asked to provide information about the cost of its channels. RTVE replied in similar terms to previous requests, and the Council once again knocked them down. “Providing disaggregated information about the cost of each channel open to the public would not damage the company’s economic interests,” noted the Council in its ruling.

How much will it cost to mint the new Felipe VI coins?

The National Mint was asked about the “production and distribution costs of the new one-euro coin to be minted with the image of Felipe VI.” But instead of providing the information, the organization said that doing so would harm its commercial and economic interests. Once again, the Transparency Council ruled in favor of the request, noting: “The right to know the cost of the investment carried out after the head of state changes, which has been borne by the taxpayer, is definitely one of the reasons the transparency law was passed.” The State Attorney representing the National Mint dismissed the request, saying that it “was not in the public’s interest, but to satisfy the curiosity of a private individual.”

Who works at environmental services agency Tragsa?

State-owned company Tragsa, which employs around 10,000 people, has refused to make public information about its running, and the local and regional governments to which it supplies environmental services, instead appealing to the courts. This case is particularly worrying, given that both Tragsa and the Transparency Council are run by the Finance Ministry.


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