Recurrent: Mutual MAZ / Ministry of Inclusion, Social Security and Migration

Recurred resolution: R/0831/2024

In exercise of the right of access to public information, a request was submitted to the Ministry of Inclusion, Social Security and Migration for access to the minutes of the agreements of the Board of Directors of the mutual MAZ, Mutual Collaborator with Social Security No. 11, from 2007 to September 2023.

By resolution of the Mutual Agreement, the inadmissibility of the application was agreed on the basis of the provisions of article 18.1.e) LTAIBG, on the understanding that it is not justified for the purpose of transparency of the law, insofar as it comes into conflict with different cases contemplated in article 14.1 of the aforementioned norm. From the above perspective, it considers that the limits provided for in article 14.1.g), k) and j) LTAIBG are applicable.

The Council considers the complaint, after noting some confusion between what are causes of inadmissibility and what are limits to the access that is detected in the resolution, recalling the existence of a consolidated doctrine regarding access to the content of the minutes of collegiate bodies of management of agencies, public bodies and other obliged subjects, as is the case.

According to this doctrine, the Law of Transparency protects access insofar as the decisions of such bodies have an impact on the exercise of public functions and, therefore, their knowledge is related to the purpose of the norm, expressed in its Preamble. Such access, however, may exclude those aspects that may objectively affect the economic and commercial interests of the body [limit of article 14.1.h) LTAIBG]; as well as the opinions and statements expressed by the members of the collegiate body in the conduct of the sessions, insofar as they do not form part of the minimum necessary content of the minutes and may be necessary to preserve the confidentiality and secrecy required in the decision-making processes [limit of article 14.1.k) LTAIBG].

The concurrence of such limits, however, must be expressly and thoroughly justified and their application must be proportionate to their object and purpose of protection, taking into account the specific circumstances of the case, as required by Article 14.2 LTAIBG, and especially valuing the concurrence or of a higher public or private interest that justifies access.

Finally, the Council recognizes access to the mandatory content of the minutes, reflected in article 18.1 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector (LRJSP): specification of assistants, agenda, circumstances of place and time of the celebration, main points of the deliberations and content of the agreements. From this content should be excluded, the data of third natural persons are included in the minutes and are not part of the governing bodies of the agencies involved nor are they included in the acts already published, the identification of which is not considered determinant when it comes to the control of public performance.