Thursday, September 16

The Transparency Council ugly to the Government that abuses the “administrative silence” not to give information


The use of transparency portals is gone spreading among citizens that begins to assimilate access to public information as one more right. 2020 was the year in which the most applications were registered, since the law came into force in our country. The state administration received 11,442 requests for access to data or public documentation, well above the 7,449 sent in 2019 and doubling the 5,995 in 2018. The administrations have had to dedicate more efforts to this matter, although the body in charge of supervising how they are The regulations apply – the Council for Transparency and Good Governance – warns in its latest reports of the “excessive weight” that the Government is giving to administrative silence in its responses.

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According to the data published by this independent institution (although its president is elected by the Executive), in 2020 47% (402 of the 876) of the state-wide claims that were processed by the Council were presented because the Administration had chosen not to answer. In the first half of 2021, the percentage is similar: half of the complaints (51%) were initiated due to a lack of response from the public administration.

The cases that arrive at this institution are driven by the information seekers. If the petitioner is not satisfied with the Government’s response, the law gives this body the ability to resolve claims and determine whether or not the Executive complies with the transparency regulations. However, it has no punitive capacity if the Administration ignores its ruling. Organizations and experts in this matter have been crying out against this situation for years. “If there were a sanctioning regime, the numbers of administrative silence would be greatly reduced,” defends Patricia González, legal researcher at Access Info Europe, an association that defends the right of access to information.

Experts call for a sanctioning regime

Miguel Ángel Blanes, a doctor in Law and an expert in transparency, pronounces in a similar way, although he defends that the penalties for non-compliance should not be assumed by the Administration. This interviewee is betting that it is “the official or senior position” who makes the decision who is responsible for their actions with their “personal assets.” “It is not a novelty. It is contemplated in the regulatory law of the Contentious-Administrative Jurisdiction,” he defends.

Likewise, regarding the administrative silence adopted by the Administration, remember that there is only data on the requests that reach the Council, but the number of requests that have not been answered on the General State Administration portal is unknown. “There are no statistics on those who do not go to the Council. There are many people who, in the face of this silence, no longer demand more, they think that maybe they have no right,” says Blanes.

The lack of response from the Administration is not limited only to the petitioner, some ministries do not answer the Council in the period of allegations, prior to issuing a resolution. In these cases, the institution recalls that this action hinders “the due guarantee of the right of access to information that both the Spanish Constitution and the LTAIBG [ley de transparencia] and the courts of Justice recognize citizens “.

This paragraph is among the legal bases cited by the Council in recent resolutions, which addressed the nature of public information of the communications made between the Presidency of the Government and the Royal House or that of a list of economic experts who advised the Executive a year ago. For the Council, the lack of response “considerably hinders the fulfillment of the function” entrusted to it, “by not providing it with the reasons on which the refusal to grant access to information is based so that it can adequately assess the issues raised by the claimant “, as he recently recalled in a resolution issued against the Ministry of the Interior.

Interior leads the resolutions ignored by the Council

The department of Fernando Grande Marlaska is the Ministry that throughout 2020 has most ignored the decisions of the Council, according to the monitoring data of these cases published on the institution’s website. 26 of the 41 (63%) resolutions on which “there is no evidence of compliance” have been carried out by Interior. One of the last cases was revealed a few weeks ago by elDiario.es. This Ministry has not provided this drafting office with information on the personnel it assigns to the Royal Family or on the budget allocated annually to the protection of the Royal Family, despite the fact that the Council has confirmed that these matters are covered by the transparency and Therefore, they should be public.

In the resolution disobeyed by Interior, the highest body that guarantees transparency stated that the Ministry had answered “applying two limits – defense and foreign relations – automatically, limiting itself to invoking the cause for which it denies the information without performing any of the legally required tests and without justifying expressly and in detail the reasons why it considers the alleged limits applicable “.

Faced with this breach, sources from the Council stated that their institution “has no competence to carry out any other action or procedure aimed at enforcing the execution of its resolutions.” The opacity of the Ministry has also not allowed access to information on the cost of a minister’s meal, decorated police officers, the number of officers injured after the sentence of the you process, statistical data on the Foreign Detention Centers and the cost of repatriation flights for Moroccans from the Canary Islands. This last case was published by El País, which highlighted that Interior has been in breach of a resolution on June 16 that recognized the “significance” of this information for the “control of public action” and “knowledge of how public funds are spent.”

From Acces Info Europe they consider that this behavior is “very serious”. “They are taking the decision to almost violate a fundamental right,” says its director Helen Darbishire, who highlights that “the administrative silence can be explained” because a request has been misplaced or an official has accumulated several requests for information, but it does not find justification for the failure to comply with Council resolutions.

The judicialization of cases delays the response

The law does not grant powers to this institution to oblige an administration to carry out its resolutions. In those cases in which a ministry does not agree with one of its decisions, the regulations do provide that they can resort to contentious-administrative courts. In 2020, 15 resolutions were brought to justice, the ministries of Science, Justice, Finance, Agriculture, Labor and Health opted for this route in order not to provide information endorsed by the Council.

In some cases, judicialization lengthens access to information over time. The Civio Citizen Foundation has taken five years to obtain complete documentation on the people who have made use of official flights. The request, which was upheld by the Council, went through three trials. The Supreme Court agreed with the applicants and in June they published the data. The way to obtain them was not easy, the central court for contentious-administrative matters even issued a warning against the Ministry of Defense: either it executed the final sentence or high officials and public employees were exposed to be sanctioned, reported Civio.

In these cases, as Blanes points out, the information loses “public interest” as time passes. And it provides a piece of information: “The average time of access to information is around 8 and 9 months.” The law grants a maximum period of two months for the resolution of a request for information.

The Administration may prosecute requests that have not been answered either during their processing on the transparency portal or in the Council’s allegations phase. For this reason the Contentious-Administrative Chamber of the Hearing gave a slap on the wrist in March to the Presidency of the Government by recriminating him for not responding to the request for information – about the temporary staff of the year 2018 – nor for transmitting that communication to those affected. The magistrate considered that this action showed “a manifest attitude of obstruction to the exercise of the right of access to public information.” And it concluded that the appeal, presented by the State Attorney, “only” sought to “delay access to information.”

Since the transparency law came into force, 2020 was the year in which the most requests for information were registered. Issues related to the pandemic have been of interest to portal users. 16% of the complaints received in the Council were presented to protest the response given by the Ministry of Health to a request for information, half of them (21) were estimated, taking into account that the Administration had not responded to application.

This institution has spoken out in favor of providing data and documentation on the criteria for the distribution of the Covid-19 vaccine, purchases of sanitary materials, data on infections or reports that were taken into account to confine the children during the state of alarm. In several of these cases, the Council warns that Health chooses to answer the request “after the deadline” – it has one month and another one to extend – and once the claim has already been submitted.

Deepening the information published by the Government on the failed Radar Covid application, with which it was intended to track infections, has also faced the Executive and the Transparency Council. This institution partially estimated access to the supporting report, specifications and contract for this system. The Ministry of Economic Affairs and Digital Transformation proposed that access to this documentation be done in person, the Council did not support this thesis and forced the department of Nadia Calviño to provide the documentation – previously anonymised – “on physical support.”



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