Recurrent: State Society of Industrial Participation (SEPI)

Recurred resolution: R/0354/2023

In exercise of its right of access to public information, the General Council of Colleges of Dentists and Stomatologists of Spain presented a letter to the State Society of Industrial Participations (SEPI), attached to the Ministry of Finance and Public Function, requesting the reports and documents on which that society and the Council of Ministers had relied to consider a dental group as a strategic company to benefit from the Fund to Support the Solvency of Strategic Companies, which resulted in the granting of an aid of 40 million euros, channeled through a participative loan of 19.6 million euros and another 20.6 million euros.

The Administration denies access because it considers that there is a specific legal regime for access to information that determines the confidentiality of the information requested, and that, even if the LTAIBG is understood to be applicable, the limits established in its article 14.1.h), i) and k), the protection of commercial interests, economic policy and the duty of confidentiality, respectively, would apply.

Once a claim has been filed, the Council of Transparency and Good Governance partially considers it recognizing the claimant’s right to access the reports and documents that reflect the Vivanta Group’s consideration as a strategic company to benefit from the Fund to Support the Solvency of Strategic Companies, excluding from access information affected by the limit provided in article 14.1.h) LTAIBG, in the terms set forth in the resolution itself.

The Council begins by pointing out that, although Article 2.17 of the aforementioned Royal Decree constitutes a specific regime (at least with regard to the reservation of confidentiality that it establishes), it should not be understood in absolute terms that imply the total displacement of the law of transparency, as invoked 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 the denial of full access is disproportionate, and the information must be provided in part, so as to exclude information whose disclosure causes real harm to economic and commercial interests, such as the viability plan of the company or the shareholders’ agreements in which their strategic decisions are determined, and subject to express justification, which must specify the information that is excluded for this reason and the reasons.

Finally, the concurrence of the other limits invoked is not appreciated and the high public interest in the justification of the concurrence is emphasized in the case of the budgets to which the Royal Decree-Law links the granting of public aid. This, on the other hand, is directly related to the purposes of transparency and the right of access to public information expressed in the Preamble of the LTAIBG.