30 November 2012, by Lydia Medland and Victoria Anderica, Access Info Europe.
Spain remains the only country in Europe with more than a million inhabitants without an access to information law. As a State Party to the UNCAC, the lack of protection for access to information means Spain is violating Article 13 of the Convention, something that should be highlighted under the next phase of the UNCAC review process.
Since its founding in 2006 Access Info Europe has been working in Spain to guarantee the right of access to information, and is a founding member of a national coalition which brings together 64 civil society organisations advocating for the right to know. Despite pledges from political parties that a law would be developed more than eight years ago, moving ahead with guarantees for transparency is proving to be an uphill struggle. The good part of the story is that Spain is now closer than ever to having access to public information included in its legal framework, as the current centre-right government presented to parliament a draft law. Unfortunately, the draft has been criticized by experts nationally and internationally because it does not recognize access to information as a fundamental right, excludes a lot of information from public scrutiny and does not establish an independent review body.
There is, as well, a second piece of bad news in the current state of affairs. A few weeks ago, the Spanish Supreme Court condemned Access Info Europe to pay €3000 in legal fees to the Spanish government, for an information request related to UNCAC implementation.
Back in 2007, Access Info Europe had requested from Spain’s Ministry of Justice information about what had been done to implement the UNCAC and the OECD Anti-bribery Convention. The information request contained a series of specific questions – it was never answered. After a drawn-out legal process lasting five years, the Supreme Court ruled on 22 May 2012, that there had been no violation of Access Info Europe’s right of access to information. The main argument deployed to reject Access Info Europe’s appeal was that a request about the specific measures taken to implement anti-corruption conventions signed by Spain, was not in fact an information request but rather an attempt to get “explanations” from the government. In taking this course, the Supreme Court evaded addressing the substance of the arguments that Access Info Europe had put forward, namely that the right to information has been recognised as a fundamental human right in international jurisprudence, and that it is essential for the enjoyment of the right of citizens to participate in decision making, as recognised by the Spanish Constitution.
Access Info Europe is now planning to take the case to the European Court of Human Rights, to establish that we do have a right to information and particularly a right to information about corruption. In the current times as Spain strives to find solutions to a deep financial and economic crisis, partially caused by the real estate bubble and huge investment in construction and the relating corruption, a good “transparency” law is one of the few positive things that could be offered to citizens alongside much austerity and hardship. As it becomes clear that political will is lacking to improve the failures of the current draft law and that the door has been slammed on Access Info’s efforts to push for transparency in practice, we realize how long the journey is still likely to be before we see the right of access to information in Spain.