Recurrent: Ministry of Inclusion, Social Security and Migration

Recurred resolution: R/0530/2024

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 list of the staff of the office of the Social Security Information Management in Malaga to which a certain increase in semiannual productivity has been assigned in 2022.

The Administration denies access because it considers that an information procedure has already been established for trade union organizations in this matter, that the applicant is not a member of the Delegate Bureau but of the trade union section of the Provincial Directorate of Malaga and of the Personnel Board, and because no express consent has been given from the persons concerned.

The Council considers the claim, considering that it is public information according to the definition provided in Article 13 LTBG, and that its access must be decided according to the result that yields the weighting required in Article 15.3 LTAIBG, in accordance with Interpretative Criterion 1/2015, of June 24, developed jointly by this Council and the Spanish Data Protection Agency (AEPD). Applying this weighting, in relation to posts at levels 30, 29 and 28 (the latter provided that they are freely appointed) or equivalent, it is clear that the right of access to information on remuneration of public employees prevails, without the express consent of the same, and therefore the information must be provided with identification of the recipients.

In addition, the Council takes into consideration the particular circumstance that the person requesting the information is a worker and trade union representative of the Provincial Directorate and that the intention is related to the distribution of the productivities of public employees within the scope of their organization; question in which there is a specific legal rule in article 23.3 c) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service (LMRFP), according to which “[e]n any case, the amounts received by each official for this purpose will be in the public knowledge of the other officials of the Department or Agency concerned as well as the trade union representatives.”

It also highlights the existence of an obvious public interest in knowing how public funds are distributed as variable remuneration to the specific workers of an organ, agency or entity, in order to assess whether there have been unjustified arbitrariness, abuse or discrimination and, ultimately, to be able to demand the corresponding accountability of a Public Administration in an area as essential to detect a good or bad functioning as is the management of public money in relation to the non-fixed remuneration of public employees.

Finally, it is clear that, since the right has been exercised by a workers’ representative, it is not necessary to articulate the hearing procedure provided for in articles 19.3 and 24.3 LTAIBG in accordance with the doctrine established in the Judgment of the Supreme Court of 15 October 2020 (ECLI:TS:ES:3195:2020).