Recurring: Particular

Recurred resolution: R/0321/2023

In exercise of the right of access to public information, a request for access to certain information related to the privatization of the Molypharma Company, S.A., in 2014 was submitted to the State Society of Industrial Participations (SEPI) of the Ministry of Finance and Public Function. In particular, the valuation report of that company was requested for the purpose of its privatization, as well as the updated version.

The SEPI, having offered a hearing procedure to affected third parties, does not accept the request for access to the first valuation report, based on Article 13 LTAIBG, because it is not in its possession. With regard to the second report (update of the initial report), the concurrence of the limits established in Article 14(h) and (k) LTAIBG (economic and commercial interests and guarantee of confidentiality, respectively) is invoked.

In the process of hearing third parties affected by access to the requested information, it was found that none of them favored providing such information, supporting the argumentation provided by the SEPI in its resolution. In particular, ENUSA argued that the application should be inadmissible for incurring the cause of article 18.1.b) LTAIBG, since these are internal reports relating to the economic valuation of the company, in addition to causing a prejudice to confidentiality between the companies.

With regard to the refusal of access to the first report, the Council considers that it cannot be based on the fact that it is not in the possession of the SEPI, since the latter knew which obliged subject (ENUSA) had it. However, given that ENUSA had given its opinion on this issue in the arguments presented to this Council, it was appropriate to analyse the limits on access that had been raised jointly for the two reports, the initial and the updating reports, in particular the impact on the economic and commercial interests of the company.

In its resolution, the Council considers that the partial estimation of the claim is appropriate, on the basis of the need for a proportional application of the limits invoked, in order to facilitate partial access to such reports, excluding information whose disclosure, despite the time that has elapsed, should be considered confidential for causing damage to the economic and commercial interests of the companies concerned, expressly justifying it, and providing information that, precisely because of the time that has elapsed, no longer causes damage to such interests.