Reform laws related to transparency and access to information (ES0044)

What is the problem/need that is desired to resolve with the commitment? Law 19/2013 of 9 December on transparency, access to public information and good governance fully entered into force the year following its publication in the official gazette for the AGE and two years later for the Autonomous Communities. During the years of validity of the aforementioned law, there has been the need to solve several practical problems, clarify concepts and commit to new approaches in accordance with the demands of the citizenry and Public Administrations. The law corresponds in general terms to the international standards in the subject matter. Transparency is a sensitive public policy that directly impacts the citizenry and is highly demanded by civil society. In fact, 69% of the proposals received in the consultation phase for the 4th Open Government plan were related to transparency, open data and accountability.

Objectives of the commitment Strengthen and delve deeper into the public policy of transparency in Spain through modifying its regulatory standards and promote Spain's ratification of the Council of Europe Convention on Access to Official Documents of 18 June 2009. 1. Approve the transparency regulation, which is in an advanced state of processing, complementing the regulation with regard to the aspects related to the Transparency Website, as a point that provides access to the information, facilitating compliance with the obligations of active transparency and favouring the exercise of the right to access to public information. 2. Promote the ratification by Spain of the Council of Europe Convention on Access to Official Documents of 2009, in order to highlight Spain's commitment to transparency at the international level and cause a "chameleon effect" in other countries. 3. Reform the law on transparency, access to information and good governance. The scope of this reform must be profiled in the consultation and public hearing processes, even though it is considered necessary to examine the most demanded matters by the citizenry such as the expansion of the obligations of active transparency, the maximum guarantees in exercising the right to access and the activity of the enforcement bodies and promoting citizen participation in public affairs. 52

Brief description of the commitment 1. Complete the processing of the regulation for the development of the transparency law to facilitate compliance with the active transparency obligations and promote exercising the right to access to public information by the people concerned with the maximum guarantees and always for the sake of ensuring the greatest transparency possible in the actions of the Public Administration 2. Promote Spain's ratification of the Council of Europe Convention on Access to Official Documents. 3. Modify Law 19/2013, of 9 December, on transparency, access to public information and good governance to adapt it to the national and international context in the subject matter and introduce improvements in accordance with the needs detected during its years of validity.

How does the commitment contribute to solve the problem or cover the need? The commitment is directly related to the demands for improvement by the citizenry, Transparency Council, Public Administrations, the doctrine and jurisprudence.

Why is the commitment relevant with respect to the values of Open Government? Transparency constitutes one of the essential pillars of open government through society scrutinising public information.

Additional information Links of interest:  https://transparencia.gob.es/  https://www.consejodetransparencia.es  https://www.oas.org/es/sla/ddi/docs/acceso_informacion_desarrollos_convenio_consejo_europeo.pdf

Activities of the commitment Date Start Date End 1. Approval of the regulation for the development of the transparency law. 01/11/2020 31/12/2020 2. Ratify the Council of Europe Convention on Access to Official Documents. 01/11/2020 31/12/2021 3. Reform the transparency law: Main milestones 1. Debates and meetings with experts (see commitment 8.3) 01/11/2020 01/05/2021 2. Establishment of group(s) with the representatives of the Open Government Forum and preparatory meetings 15/09/2021 15/10/2021 3. Debate preparation meetings with the group(s) of the Open Government Forum 16/10/2021 30/01/2022 4. Preliminary consultation and study of the contributions. 01/02/2022 01/04/2022 53 5. Debate within the group(s) of the Open Government Forum 15/02/2022 01/04/2022 6. Preparing the draft bill and impact analysis report and submission to the Council of Ministers, so it can decide on the next proceedings, and particularly, the queries, opinions and reports that are appropriate (art. 26.4 Law 50/1997). 01/04/2022 15/06/2022 7. Processing of the hearing and public information. 15/06/2022 15/07/2022 8. Debate within the group(s) of the Open Government Forum 15/09/2022 15/11/2022 9. Reports from other departments and bodies:  Office of Regulatory Coordination and Quality  Report from Autonomous Communities and FEMP  Technical General Secretariates of Ministries 15/09/2022 15/11/2022 10. Request for other reports:  General Directorate for Autonomous and Local Coordination  Council of Transparency and Good Governance  Spanish Data Protection Agency  Technical General Secretary 15/11/2022 15/01/2023 11. Opinion of the State Council 15/01/2023 01/03/2023 12. Sending to the Committee of State Secretaries and Subsecretaries and Council of Ministers 15/04/2023 15/05/2023

Action Plan Review

Commitment 1: Reforming regulatory framework on transparency and accountability

Lead agencies: Ministry of Land Policy and Public Administration

For a complete description of this commitment, see: https://www.opengovpartnership.org/documents/spain-action-plan-2020-2024/

Context and objectives

This commitment seeks to strengthen the regulatory framework around transparency, access to information, and good government, particularly as it relates to the Transparency Act (19/2013). Civil society has shown great interest in strengthening this public policy area, as indicated by 69% of consultation responses that relate to transparency, open data, and accountability. [1]

As described in the action plan, it is necessary to 1) pass regulation to strengthen the act, and 2) draft reforms addressing the legal gaps identified to maximize transparency in public administration. [2] The purpose of the reform regulation is to clarify the scope of the obligations established by the act and adapt transparency regulation to the jurisprudence and criteria established by the Transparency and Good Government Council of the Spanish Agency for Data Protection, among others.

The first steps in drafting reforms were taken in 2014 and included in Spain’s third action plan. However, the regulation did not pass. The third version of Transparency Act reforms, reviewed in 2019, includes dispositions around obligated subjects, updating and regularity of information disclosure, control powers by the Council for Transparency and Good Government (CTBG), limits to the right of access to information, and others. [3]

This commitment suggests approval of the Transparency Act reforms by the end of 2020; the promotion of these reforms via a participatory process that secures the approval of the Council of Ministers by 2023; and the ratification of the Council of Europe Convention on Access to Official Documents (2009) by 2021. The reform process includes broad participation by government agencies and civil society organizations through the Open Government Forum.

Both the act and its reforms have become increasingly relevant during the COVID-19 pandemic since the state of alarm declared by the government resulted in suspended access to information requests. [4] Civil society and other stakeholders of the Pro Accesso Coalition expressed their concern to the government, [5] Some civil society have also highlighted the need for disciplining public officers who fail to meet their legal obligations. [6]

Access Info Europe highlighted the need to ratify the Council of Europe Convention on Access to Official Documents, allowing Spain to adopt the highest international standards on access to information. [7]

Potential for results: Substantial

The approval and coming into force of the regulation and the reforms to Act 19/2013 could bring about improvements and substantial outcomes around the right of access to information, considering two key factors. First, the clarification—in the short term and via the regulation—of interpretation items to improve its application, and, second, a deeper analysis of the act through the reform process to address issues such as those identified by the Global Right to Information Rating. [8] These reforms include engaging the judiciary and the government in the law enforcement arena; streamlining access to information requests; providing special attention to people living with disabilities; and others.

If the reform process is completed as written in the commitment—with broad participation from civil society and the public via consultations and the Open Government Forum—the right of access to information could be included as a fundamental right, additional obligated entities could be included, and the CTBG could be strengthened as a guaranteeing body. [9]

Opportunities, challenges, and recommendations during implementation

A key element for implementing this commitment will be to achieve consensus among the political and social stakeholders engaged in the reform process, as well as to ensure that the proposed legal reforms have the right scope. For instance, the reform process is an opportunity to answer the demands posed by civil society to grant the CTBG greater independence, monitoring, and disciplinary powers to strengthen its ability to enforce transparency. Also, the state of alert declared during the COVID-19 pandemic is an opportunity to proactively strengthen the mechanisms and procedures that guarantee the right of access to information, as recommended by the Guide to Open Government and the Coronavirus published as a resource available to OGP members. [10]

A challenge that could affect the outcomes of this commitment is a lack of consensus among the Council of Ministers to approve the reforms, and for the parliament to adopt the reform. The process must also consider the pandemic and how the limits to physical participation could affect public consultation efforts around this and other commitments.

Thus, the IRM recommends the following during the implementation phase: