Recurrent: Ministry of Industry, Trade and Tourism; Spanish Development Finance Company (COFIDES); Technical Investment Committee of the Business Recapitalization Fund (FONREC)

Recurred resolution: R/0395/2022

In exercise of his right of access to information, a citizen submitted a letter to the Business Recapitalization Fund (FONREC), attached to the Ministry of Industry, Trade and Tourism, requesting access to the administrative file of aid to the company Grupo Universo Pachá, granted under that Fund, which is managed by the Spanish Development Finance Company (COFIDES).

The Administration denied access by invoking the existence of a specific regime of access to information established in Article 17.15 of Royal Decree Law 5/2021, of March 12, on extraordinary measures to support corporate solvency in response to the COVID-19 pandemic, which establishes the reserved nature of the data, documents and information held by the Technical Committee on Investments and COFIDES and which displaces the provisions of the Transparency Law. In addition, it invokes article 18.1.e) LTAIBG and the concurrence of the limits of article 14.1.h) and k) LTAIBG (protection of economic and commercial interests and duty of confidentiality).

A claim under Article 24 LTAIBG has been filed and is partially considered by the Council for Transparency and Good Governance. First of all, RDL 5/2021 does regulate a relevant aspect of the right of access by imposing a confidentiality reservation with respect to the information held by the Technical Committee on Investments and the Fund’s manager; however, this reservation cannot be conceived in absolute terms, in the sense that access to all the information held by the organs of the Administration by virtue of the functions attributed to them by the normative text is completely excluded.

It is pointed out, on the other hand, that the request cannot be considered abusive since such a character must cumulatively concur with the lack of justification of the purpose of the law, which is ruled out.

The partial estimate of the claim calls for the provision of the requested information, albeit only in respect of the resolutions of the Technical Committee on Investments and the Fund’s manager, excluding the business plans containing its market strategy that the company has included in its presented viability plan to request financial support —since such plans are, in effect, the core of its economic and commercial interests ex 14.1.h) LTAIBG—, as well as the content of the reports relating to the credit rating.