SUMMARY

One organization requested the Ministry of the Presidency information concerning Spain's participation in the international initiative Alliance for Open Government (Open Government Partnership). Specifically, this initiative, of which our country has been part since 2012, aims to expand and deepen the obligations of transparency and accountability on the part of governments as well as to favor the ways of participation of citizens in public action.

In its response, the Ministry of the Presidency agreed to provide partial information, but considered that the internal documents informing about the degree of implementation by the competent departments of the commitments made by our country in the field of open government were auxiliary or supportive. The complaint was considered by the Council for Transparency and Good Governance when it concluded that the requested reports could not be classified as auxiliary or supporting information because they “have undoubted relevance in the processing of the file or in the shaping of the public will of the body, that is, they are relevant to accountability, knowledge of public decision-making and its application. These are reports that undoubtedly help to form the final and definitive criterion of the Government that will later be reflected in Spain’s Open Government Action Plan. In fact, these reports, which should not be forgotten, are related to the degree of implementation of the measures incorporated in the Action Plan subject to self-evaluation and, therefore, must respond to mainly objective criteria, are essential for the elaboration of the aforementioned Self-Evaluation Report.”

The Ministry of the Presidency filed a contentious-administrative appeal against the resolution of the Council of Transparency and Good Governance, which partially estimated the complaint filed, on September 10, 2015, by the petitioner organization of the information, against the Ministry of the Presidency and urging the Ministry to send to it the information relating to certain documentation on Open Government and the Second Action Plan of Spain.

In Judgment 41/2017 of the Administrative Central Court No. 5 of Madrid, the Court considers that the commitments made in the area of Open Government and citizen participation are not fulfilled, if the necessary information prepared by the Recurrent Ministry and that coming from others is not available, in order to be able to determine on the correctness of the planning of public activity, objectives, criteria and concurrent circumstances in decision-making, so that the implementation of the Alliance’s action plans are relevant to citizen participation, since only if such reports are known, can participate. In this way, the information requested cannot be considered as auxiliary or supporting.

State: The sentence is now final. Both the ruling of the Madrid Central Administrative Court No. 5 and the ruling on appeal of the National High Court were in favour of the resolution of the Council of Transparency and Good Governance and, therefore, in favour, of providing the information.