Recurrent: Ministry of Science, Innovation and Universities

Resolution appealed: R CTBG 0647/2025

In exercise of the right of access to public information, the Ministry of Science, Innovation and Universities was requested to access the content of the agreement signed by the Barcelona Supercomputing Center-National Supercomputing Center Consortium (hereinafter BSC) with the company INDRA, on October 15, 2024, as well as the relationship of all the contracts signed with the center, with its objective and duration, that are relative or referring to dual technology projects.

The Ministry refused access in application of the provisions of letters a), b), c) and d) of article 14.1 LTAIBG, since it is determined that the General Protocol of Action signed with INDRA «It contains information that seriously affects and compromises defense, national security and public security. The disclosure of this PGA would entail irreparable damage to the technological autonomy of Spain and would also affect the rights of third parties (INDRA)».

The Council considers that the arguments put forward by the body required to refuse access are not, however, sufficient to deny full access to the entire content of the Reference Protocol, since the restriction of access would only cover that part of the information in the Protocol that is strictly confidential. It is appropriate not to deny access to all information, but to grant partial access in accordance with the provisions of Article 16 of the LTAIBG and Article 6 of the Council of Europe Convention on Access to Public Documents, done in Tromsø on 18 June 2009.

With regard to access to the list of contracts concluded with the BSC-CNS, it is noted that, according to the Supreme Court of 7 February 2023, it is essential to declare a classified and secret matter that a formal act of the Council of Ministers on the classification of the information in question is in force, a circumstance that in the present case has not been accredited or even expressly adduced by the requested body. It is also added that "this Council has already pronounced itself against the practical virtuality of the Rules of the National Authority for the Protection of Classified Information’. They are not norms with the rank of law and therefore cannot serve as a basis for imposing limitations on a right recognized in the Constitution and guaranteed by an international treaty.”

Finally, it is highlighted that the purpose of the second part of the application is limited to access to a list of contracts related to dual technologies, with their objective and duration, and that Law 9/2017, of November 8, on Public Sector Contracts, establishes the advertising of contracts as a general rule and non-publication as an exception, which is limited, as stipulated in section 7 of article 154, to certain data relating to the conclusion of the contract and is subject to the justification in the file of the concurrence of any of the alleged qualifiers, subject to the report of this Council −art. 154.7−, not stating in the case now examined that the claimed entity has requested any report in relation to the contracts in question, therefore it is concluded by estimating the claim in this part as well.