The National High Court had supported in its ruling the arguments of the Central Court of Administrative Litigation that revoked the decision of the Council in favor of access to the source code, considering that access to such information may affect the computer security itself and that the request is “abusive” since it is not justified with the purpose of Law 19/2013, of December 9, on transparency, access to public information and good governance.

In his resolution, The Transparency Council considers that the citizen’s request for access to the source code is justified, since it seeks to know how public decisions are made and the criteria under which public institutions act, and does not appreciate that the limit related to intellectual property is met in the case of granting access to the source code.

In the admission ticket the Supreme Court declares that the precepts that in principle will be subject to interpretation are articles 14.1 and 2 and 18.1 of Law 19/2013, of 9 December, on transparency, access to public information and good governance.

Admission comes after the judgment of the BOSCO case

The admission of the appeal comes just after the judgment of the Supreme Court in which it condemns the Administration to provide the Fundación Ciudad-Civio with access to the source code of the computer application BOSCO, developed by the Ministry for Ecological Transition so that companies marketing electric energy can verify whether the applicants for the social bond comply with the legal requirements to be considered a vulnerable consumer.

The Transparency Council welcomes this ruling, which confirms the successful change in the criteria adopted in 2021 by the Council in favour of access to the source code of the applications used by public administrations, which results in an effective safeguard against arbitrariness or discriminatory biases in fully or partially automated decision-making.

Already in its resolution 058/2021, of 20 May, the Council argued: “In the current context of the progressive development and implementation of e-government and the increasing use of artificial intelligence, algorithms are becoming increasingly important and complex. They can support public decision-making or, directly, be a source of automated decisions with highly relevant consequences for people. This evolution is generating a growing citizen demand for the transparency of the algorithms used by public administrations as an inexcusable condition to preserve accountability and control of the decisions of public authorities and, ultimately, as an effective guarantee against arbitrariness or discriminatory biases in totally or partially automated decision-making."

"As long as no other mechanisms are established to achieve the stated purposes with equivalent guarantees - such as, for example, independent audits or monitoring bodies - the only effective resource for this purpose is access to the algorithm itself, to its code, for its monitoring, both by those who may feel harmed by its results and by the general public, for the sake of observance of ethical principles and justice. ", concluded the Council resolution.