Recurrent: Ministry of Justice

Recurred resolution: R/0349/2023

In the exercise of the right of access to public information, a request for access to a pardon file granted by the Government was submitted to the Ministry of Justice.

The Ministry refused access to the file because of the nature of the right of pardon, which cannot be considered an administrative act, as well as because of the variety of personal data and circumstances contained in the file, in application of the personal data protection regulations, given the impossibility of anonymizing all documentation. In the processing of allegations, he adds new arguments, such as the particularity that not even the defendant or the victim has access to the file, the fact that the purpose for which he has the documents is solely that of his transfer to the Council of Ministers, the circumstance that the Ministry has never granted the right of access – with a justified exception – in this type of file, and finally, underlining the existence of parliamentary control exercised over the exercise of the right of pardon by the Government.

The Council partially considers the complaint by recalling, first of all, that the fact that the information requested does not form part of an administrative file does not preclude the exercise of the right of access. Secondly, it points out that access cannot be denied on the basis of the existence of a specific purpose for which the information is held, since such an interpretation is openly contrary to the notion of public information contained in the LTAIBG. Thirdly, there is no similar precedent in which access was granted, since, as stated in the resolution, in the cases referred to by the claimant there were unique circumstances that do not currently exist, so that the grounds then applied to grant access are not transferable.

Fourthly, with regard to the protection of personal data contained in the pardon file and its possible anonymisation, the resolution states that the complexity of the task and the considerable consumption of public resources that it would require give rise to serious doubts about the proportionality of the measure in order to achieve the intended purposes, especially if it is repaired in that the resulting information, after applying the anonymisation processes, would not differ in substance from that which can be provided by a much simpler operation of extracting certain contents from documents.

In this regard, it is recalled that the requirement of proportionality in the application of the limits to access to public information obliges us to assess the possibility of granting partial access to it. In this case, it is indisputable that access to the contents of an extradition file very directly affects several rights of the convicted person guaranteed in the Constitution and in the laws; in particular their rights to the protection of personal data and personal and family privacy, but, eventually, also others, such as ideological, religious and religious freedom, or the right to honour. In this case, we must also add the impact on the rights of minors to whom special protection must be granted.

On the other hand, it is clear that access to certain contents of pardon cases is of considerable public interest insofar as it allows citizens to know the criteria by which decisions are taken to implement a prerogative provided for in the Constitution, but which is clearly exceptional in nature in a State governed by the rule of law.

In view of the foregoing, the Council recognizes the partial access to the pardon file by identifying two blocks of content of special relevance to know under what criteria the Government acts in the exercise of the prerogative of grace that are perfectly segregable in order to grant access to them without requiring a disproportionate effort: (i) the reasons that led to the granting of the pardon, on the one hand, and (ii) the meaning of the reports issued by the Department of Public Prosecutions and by the sentencing court, on the other. In so doing, the Council considers that the requirements of the principle of proportionality are complied with by establishing a practical concordance between conflicting rights and interests: the right of access to public information is given the widest possible scope, while at the same time preserving the fundamental rights of those affected.