Recurrent: Port Authority of Marín and Ría de Pontevedra / Ministry of Transport, Mobility and Urban Agenda (current Ministry of Transport and Sustainable Mobility)

Recurred resolution: R/0820/2023

Having requested by a union delegate to the Port Authority of Marín and Ría de Pontevedra (hereinafter, APMRP) the individualized nominative information of all the concepts of productivity of the personnel covered by the Convention with a certain breakdown, the APMRP denied access based on the provisions of article 15.3 LTAIBG and in the CI/1/2015, prepared jointly by the Spanish Agency for Data Protection (AEPD) and the CTBG. In this sense, the right to the protection of personal data prevails over the public interest in its disclosure.

The Council considers the complaint taking into account the particular circumstance that the person requesting the information is a worker and trade union representative of the Port Authority and that the intention is to know the distribution of the productivities of the public employees in the scope of their organization; question in which there is a specific legal rule in article 23.3 c) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service (LMRFP), according to which “[e]n any case, the amounts received by each official for this concept will be in the public knowledge of the other officials of the Department or Agency concerned as well as the trade union representatives.” It is added in the resolution that, in any case, the right of access to information can be based on Articles 12, 13 and 15.3 LTAIBG, which configure the legal obligation required in letter c) of Article 6.1 GDPR to legitimise the processing of personal data.

It also highlights the existence of an obvious public interest in knowing how public funds are distributed as variable remuneration to the specific workers of an organ, agency or entity, in order to assess whether there have been unjustified arbitrariness, abuse or discrimination and, ultimately, to be able to demand the corresponding accountability of a Public Administration in an area as essential to detect a good or bad functioning as is the management of public money in relation to the non-fixed remuneration of public employees.

Finally, it is clear that, since the right has been exercised by a workers’ representative, it is not necessary to articulate the hearing procedure provided for in articles 19.3 and 24.3 LTAIBG in accordance with the doctrine established in the Judgment of the Supreme Court of 15 October 2020 (ECLI:TS:ES:3195:2020).