The right of access to public information as a subjective public right

An extensive interpretation of the principle of transparency

Abstract

Transparency constitutes an essential guiding principle of the actions of our public administrations and, as our case law indicates, it also constitutes a genuine subjective public right enforceable against other public authorities and subject to protection by the courts of justice. There are numerous judicial proceedings that have arisen regarding conflicts related to the effective fulfilment of this principle, particularly concerning the right of access to public information and its conflict and necessary balancing with other public goods or interests involved. From this perspective, case law emphasizes that the limits and grounds for inadmissibility of requests for the right of access must be subject to a restrictive interpretation, necessarily determined by the purpose and objectives pursued with the access to the requested public information.

Other issues recently raised by the Supreme Court are linked to the scope of application of the general transparency laws, particularly in their relationship with those other sectoral areas that have a specific and alternative transparency regime, which, where applicable, would override the application of the general regime. All this highlights the presence of a very diverse set of cases, which requires taking into account the particular characteristics of the regulatory provisions of these different sectoral areas.

This analysis aims to provide an approach to recent judicial rulings that have been examining the issues arising from the effective application of the principle of transparency from the perspective of the right of access to public information, particularly regarding the interpretation of its limits, grounds for inadmissibility, and the scope of application of general regulations, as well as the peculiarities presented by access to such public information in other sectoral areas of our administrative legal system.