Transparency delayed is not transparency: Italy, Germany and Spain allow slowest replies to public information requests
In practice, compliance with transparency laws in Europe is insufficient due to lack of resources, arbitrary application of limits or lack of enforceability by administrations.
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Public entities in Italy, Germany and Spain have one calendar month to respond to requests for access to public information. They do not even always meet this deadline, which is the longest of the countries examined in a Civio-led investigation by members of the European Data Journalism Network.
At the other extreme is Slovakia, which grants its authorities only eight working days, excluding weekends and public holidays. Poland, Portugal, Croatia and the Czech Republic, allow almost half a month to respond to requests made through their transparency laws. Slovenia and Greece allow 20 working days, which places them almost at the bottom of the countries analysed.
What the ten European countries surveyed do share is a general lack of compliance with transparency rules. “The law is good. The problem is its implementation,” says Croatian journalist Dijana Pribačić Jurić of H-Alter. “We have had cases where, after a lengthy administrative procedure, we received information on our journalistic requests only after two to three years, when they are no longer relevant in a journalistic sense,” adds Toni Gabrić, editor in chief of the same media outlet. The same happens in Spain, Portugal and Greece, according to sources interviewed by Civio.
Why the exercise of the right of access to public information (often) fails
Unfortunately, it is not common for access requests to be satisfied within a reasonable period of time, even with a favourable opinion from a transparency council, if it does exist. “If the entity does not provide information or does not reply, the only option is to demand it through administrative litigation. This can take years, even a decade,” says Daniel Kerekes, data journalist at the Slovak organisation Denník N. In Spain, public entities sometimes ignore rulings by the Council for Transparency and Good Governance, which has no sanctioning power.
This reality makes it difficult, in practice, to exercise the right to know. In Italy, according to Luca Giunti of the organisation Openpolis, “the procedure has an implicit cost in terms of time and resources (e.g. lawyers who can follow the case)”, which means that a large proportion of citizens do not make requests for access or, if necessary, do not follow up with legal demands.
In Germany, according to Arne Semsrott, spokesperson for FragDenStaat, “the main problems are slow answers and fees; it’s possible for authorities to take up to 500 € per request” if it will take more than a nominal amount of time. Not only that: although the deadline for a decision under federal law is one month, those who request information and do not get it must wait three months to complain. This means that in many cases, the actual time to respond to requests is longer than the four weeks set by law.
As a result, the common trend is that requesters must fight almost constantly to obtain data from public administrations. In addition, authorities can also limit access to public information by restrictions that turn into real barriers. Among the usual exemptions are the right to privacy, economic and commercial interests, or national security. The application of these limits is often uneven, creating uncertainty for requesters. This is the case in Poland, for example: “The reasons for not providing information can be arbitrary,” says editor Urszula Kifer of Frontstory.
Except for Italy and Spain, whose transparency laws are more recent, most of the countries surveyed in this investigation have transparency laws that date back almost a quarter of a century, yet those countries have not resolved the problems with implementing their transparency laws. In other cases, such as in Greece, regulatory gobbledegook hinders the right of access. This is an obstacle for ensuring transparency, despite the fact that, according to the sources consulted, on paper, the regulations marked a turning point in public accountability.
Original source: https://civio.es/tu-derecho-a-saber/2023/06/29/access-to-public-information-foia-europe/
On trial to defend the right to know
In Spain, Civio has gone to court to defend transparency and the need for public administrations to be accountable. In 2020, Spain’s Supreme Court agreed with Civio and ruled that the right to access public information also applies to information from before the entry into force of Spain’s transparency law. Before that, in 2019, the Supreme Court also upheld an appeal by Civio to identify the temporary staff of the Court of Auditors, prioritising the public interest over the protection of personal data. Currently, Civio continues to fight in court to ensure algorithmic transparency and access to public information related to drug prices and sanctions imposed by the Labour and Social Security Inspectorate.
