Thursday, 31 May 2012

Spain: not transparent enough

V-P Sáenz de Santamaría
SPAIN This country has never had a 'transparency law' (in parts, closely akin to Britain's Freedom of Information laws), which goes some way to explain the difficulties a curious, investigative press has in obtaining up-to-date information on just about anything, ranging from information of the stolen babies scandal to updated information on parliamentary committees. This government is planning (can't say 'hoping') to change that. However, several holes have appeared in the draft of the proposed Transparency and Good Government Law, which was released last week. It lists a series of exceptions to what can and cannot be released to the public - which might be expected in matters of national security but in little else. The door is left wide open to a myriad of interpretations with items such as this: Public administrations are not obliged to facilitate information on "economic and commercial interests" nor on "economic and monetary policy" if it could lead to harm being caused in these areas, as El País says.>>>
Perhaps the most troubling aspect of these and other loopholes is that it is the government that must make the decision to release information or not. There is nothing similar to a 'public interest policy' other than that which the government deems appropriate, so no citizen's request for information legislation, either.

The law leaves it up to the administration concerned to gauge whether or not releasing such information would cause damage. Apart from economic data, the draft law also imposes restrictions on divulging information on administrative duties such as overseeing the protection of intellectual and industrial property.

The text excludes the application of the transparency rule to the content of drafts, opinions or summaries drawn up by administrations or any other “auxiliary” material they use to arrive at decisions.

The new law will also not apply to the Royal House, which is not considered to be an “administration” as flagged by Deputy Prime Minister Soraya Sáenz de Santamaría. On its own initiative, King Juan Carlos at the end of last year provided for the first time a breakdown of the spending of the public funds assigned to the royal household by Congress.

That move came after the king’s son-in-law Iñaki Urdangarin’s private businesses became the focus of a public corruption inquiry in Palma de Mallorca, leading eventually to his indictment on charges of misappropriation of public funds, falsifying documents and fraud.

The transparency law, however, will cover the General Council of the Judiciary (CGPJ) legal watchdog organization and the Constitutional Court.

A recent announcement by Sáenz de Santamaría included the winners of tenders for public works, who will also have tosubmit to the Transparency Law, as will professional colleges and other institutions. These additions to the law come as the result of colaboration among the public.

The new law, however, is more specific about the sort of information administrations will have to make public on their websites. This includes information of an institutional and organizational nature, but also legal and economic data such as contracts awarded and subsidies provided.

However, the text is less clear on the treatment of specific requests for information on the part of citizens in that it allows for the possibility of administrative “silence” in response. In other words, if there has been no response to a request after a month it will be understood to have been “rejected.”

The government has opened up a period of 15 days in which people can comment on the draft law after which it is due to be presented to Congress. The government plans to modify an existing organization to transform it into what will be known as the State Transparency Agency, which will be responsible for ensuring that the law is applied.

This organization will be headed by someone nominated by the Finance Ministry but can be vetoed by Congress.

The Good Government component of the draft law identifies seven ethical principles — among which are impartiality, good faith and dignity — and nine specific principles of operation such as requiring public officials to reveal any irregularities or not to accept gifts other than those given under normal protocol.

It also specifies infractions and penalties accompanying such infringements but does not mention the organic law, meant to accompany the transparency law, which will deal with criminal cases of public officials who hide or falsify accounting information.

The central government itself will be responsible for safeguarding compliance with the principles of good government, and in the case of ministers and secretaries of state, the Cabinet.

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