Recurrent: State Society of Industrial Participations (SEPI)

Resolution appealed: R/0125/2023

In exercise of his right of access to public information, a citizen submitted a letter to the State Society of Industrial Participations (SEPI), attached to the Ministry of Finance and Public Function, requesting access to various information on the decision adopted by the Board of Directors of the Fund to Support the Solvency of Strategic Companies, which grants temporary financial support to Air Europa from it, as well as shareholders’ agreements or management agreements in which the details and conditions of the aid are included, together with the strategic decisions of the company that will be subject to prior authorization of the Board of Directors, to ensure the appropriate management.

The denial of access to the requested information is based, firstly, on the existence of a specific regime established in article 2.17 of Royal Decree Law 25/2020, of 3 July, on urgent measures to support economic recovery and employment, which establishes the reserved nature of the data, documents and information held by the Board of Directors and the SEPI, by virtue of the functions attributed to them by the aforementioned norm, and which displaces the provisions of the Transparency Law. It is also alleged that the limits of the exercise of the right of access to information referred to in article 14.1.h), i) and k) LTAIBG —the protection of commercial interests, economic policy and the duty of confidentiality, which are directly linked to the obligation of reservation required by the aforementioned article 2.17 of Royal Decree-Law 25/2020—; and the absence of a superior public or private interest that justifies access being unfavorable to the same the test of damage and interest enshrined by this Council in its interpretative criterion 1/2019.

Once a complaint has been filed, the Council of Transparency and Good Government considers it partially by pointing out that, although Article 2.17 of the aforementioned Royal Decree constitutes a specific regime (at least with regard to the confidentiality reservation that it establishes), it should not be understood in absolute terms that imply the total displacement of the law of transparency, as seems to be understood by the requested body.

With regard to the application of the limit on access provided for in Article 14.1.h) LAITBG (economic and commercial interests), the Council considers that it is reasonable and justified with regard to access to the viability plan of the company and to shareholder agreements (or management agreements of the company) in which its strategic decisions are determined, since such decisions constitute, in effect, the core of its economic and commercial interests. However, with regard to the information regarding the aid granted and compliance with the requirements established in the rule for its granting, the claim must be estimated as there is no justification for affecting the economic and commercial interests of the company and, therefore, the need to maintain the confidentiality of the information.

Finally, we also fail to appreciate the concurrence of the other limits invoked and emphasize the high public interest in knowing the documents that are the subject of the application for access and that have been prepared within the framework of a procedure for granting public aid to a business entity under the Fund to Support the Solvency of Strategic Companies.

In conclusion, the right of access is granted to the resolution of the Management Board of the Fund to Support the Solvency of Strategic Companies approving the granting of temporary financial support to Air Europa and to the Management Agreement with Air Europa which includes the details and conditions of the aid granted; excluding the viability plan of the company and any other documentation which, where appropriate and by express justification, contains strategic information liable to genuinely compromise the economic and commercial interests of the aid concessionaire.