We close 2014 with two new transparency laws, the Spanish one, which came into force a few days ago, and the Catalan, approved by Parliament in the last full session of the year. This is an undoubtedly positive piece of news that comes quite late. Before our laws were passed, hundreds of countries passed their own laws, including Sweden (1766), the USA (1966), France (1978), Greece (1986), Portugal (1993), the UK (2000), and Mexico (2002). This delay (and the general state of transparency here) is due to the weakness of our democratic culture, highly damaged by the long periods of authoritarianism experienced during the 19th and 20th centuries.
Access to public information has always been affected by the permanent tension between openness and secrecy. A deepening of democracy has always strengthened openness, as transparency is inherent to democracy, in the same way that opacity and secrecy are to tyranny. The people’s right to know must be considered, therefore, as a requirement arising from democratic principles. However, the Spanish Constitution of 1978 did not enshrine the right to access to public information. It only entrusted legislators to regulate citizen access to administrative files and records, except in cases affecting State security and defense, criminal investigations and personal privacy. This regulation was approved in 1992, but not with the goal of guaranteeing and facilitating access to information; rather, it was designed to create obstacles and make the process completely impractical. Social pressure to gain access to this information has grown as people have become aware that this information is essential for controlling authority and fighting against corruption (in the words of Bentham, "the more I watch you, the better you behave"), and also for participating in public decision-making and improving performance. Finally, as a result of this pressure, transparency laws have been approved on both Spanish and regional level.
What new things do these laws provide for? Basically two: they require all administrations to disclose a large amount of information that is of interest to the people, without waiting for someone to request it (active openness), and to recognize that all citizens have the right to access public information (right to information access, a new right that is increasingly considered fundamental to citizens).
Active openness means the obligation of administrations to publish, in a periodic and updated fashion, all information that could be relevant to insure transparency in their actions. This is a principle that the laws establish with precision for each of the major categories of information (organizational information; legal, economic, budgetary and patrimonial information to do with planning and details about contracts, agreements and public subsidies). Part of this information was already available, but now the administration must disseminate it much more and in much more detail.
Likewise, the laws recognize the citizens’ right to access public information that might concern them, via a very simple procedure: it is enough to submit a request naming the citizen, stating the information that they want to obtain, and the medium to receive the communication. This request, which the citizen is not required to justify, must be resolved within one month.
Certainly, the right to access to public information, like other rights, is not unlimited. All legal systems have a long list of reasons allowing for the partial or total denial of access to information (defense, foreign relations, public safety, the investigation of criminal or administrative violations, personal privacy...). And here is the crux of the matter: there are times in all countries when these limits are applied in a more or less restrictive manner, in accordance with the dominant social ideology at the time. But an abusive application of these limits would imply a complete frustration of the right of access. One of the main challenges today is to find a balance between two rights that could often come into conflict: access to information and the protection of personal data. To compensate for a tendency towards opacity, many regulations create specific organs, and entrust them with the resolution of conflicts related to access to information. This has been done in both the Spanish law (Council for Transparency and Good Government), and the Catalan law (Commission for the Guarantee of Right of Access to Information).
The coexistence of one law with the other, with provisions that do not entirely agree, will not be easy. The Spanish law is of a basic nature and applies to all administrations. It has been strongly criticized for its lack of boldness in some of its solutions. The Catalan law is much more demanding: it requires the publication of more information, is more restrictive on the limitations on access, and, in contrast with the Spanish law, counts on positive silence (with nuances). In other words, a citizen has the right to receive the information if the administration does not respond within the given time frame, and incorporates a long list of infractions and penalties.
The coming years will reveal how these rules are applied and if openness or secrecy, as a trend, takes precedence. Laws can help a society to become more democratic, but obviously cannot change society overnight. It is not so much about having one set of laws or another, as it is about how those laws are applied. For example, by remembering, as did Judge Brandeis, that there is no better disinfectant than the light of the sun.
