Recurrent: Ministry of the Interior

Recurred resolution: R/0119/2022

In exercise of his right of access to information, an official of penitentiary institutions requested from the Penitentiary Center of Badajoz (Ministry of the Interior) information related to the distribution criteria and the recipients of the conjunctural productivity paid in the payroll of December 2021.

The competent body provided the criteria it had taken into account for allocating productivity (referring to a previous resolution setting such criteria) and denied access to the list of individual recipients, on the understanding that this would affect their right to the protection of personal data.

Once a complaint has been filed, the Council of Transparency and Good Governance partially considers it. Thus, with regard to access to the list of beneficiaries of productivity, he recalls that, although it is true that the starting premise is the weighting required by article 15.3 LTAIBG, in this case the specific legal rule laid down in article 23.3.c) of Law 30/1984 of 2 August on Measures for the Reform of the Public Service, which remains in force and which imposes publicity (public knowledge) of what each official perceives in this regard by the other officials of the Department or Agency concerned as well as by the trade union representatives, is applicable. It is also stressed that in these cases the hearing procedure provided for in Articles 19.3 and 24.3 LTAIBG is not necessary, in accordance with the doctrine established in the STS of October 15, 2020 (ECLI:TS:ES:3195:2020).

On the other hand, with regard to the criteria for distribution, it is pointed out that, in reality, the claim is based on the fact that no reason has been given as to why, where appropriate, none of the circumstances that allow productivity to be perceived are present; this issue is beyond the Council ' s powers, which are limited to guaranteeing the effectiveness of the right of access to information and controlling the justified and proportionate application of the causes of inadmissibility and the limits to its exercise provided for by law.

Judgment No. 103/2023 of the Central Administrative Court No. 1