Spain’s Freedom of Information Act? Not by a long chalk…

On March 22, to muted fanfare, the Spanish government announced a new law supposedly giving the public access to official documents and records.

Announcing the Transparency and Good Government Law, Prime Minister Mariano Rajoy said his aim was to tackle the country’s chronic corruption by allowing people to know “who is spending their money.”

The new legislation would see the creation of a website with all public administrations’ and ministries’ financial details, including salaries and contracts, along with rules guaranteeing the public’s right to access information on public spending and a best practices code.

Let’s be clear about this, the government’s proposals are not, by any stretch of the imagination a Freedom of Information Act as would be understood in the United States, Canada, or the rest of the European Union, come to that. Closer examination of the draft bill reveals a number of vaguely defined, catch-all clauses. The definition of information excludes anything that “affects” interests such as national security, defence, external relations, public security, and criminal investigations. Such information cannot even be requested and requests will be rejected. There is no “harm” or “public interest” test. This makes it impossible for Spain to sign the Council of Europe Convention on Access to Official Documents.

Regional governments are also obliged to provide access to data on health, education, and social services, but the draft bill passes the buck, allowing regional administrations to decide whether or not releasing such information would cause harm.

And we won’t be entitled to any information about the publically funded royal household either.

Nor will the public be entitled to see the content of drafts, opinions, or summaries drawn up by regional, local, or municipal authorities or any other “auxiliary” material they use to arrive at decisions. Public bodies will not even process the request for information: given public bodies’ tendency to ignore requests for information, the interpretation of a non-answer as refusal puts a disproportionate burden on the requester to appeal. There are no specific sanctions for violations of right of access to information, nor other related offences such as destruction of documents.

Most tellingly, the law does not link the right to information to the right to freedom of expression in the Spanish constitution, and does not make it a fundamental right.

Spain has one of the least open governments in the developed world. Successive administrations, Socialist and conservative, have repeatedly resisted opening up public records and denied access to journalists and the public of even the most basic information.

Over the decades, scandals have periodically mired both main parties’ involvement in graft, either through illegal funding, local officials awarding contracts to business in return for kickbacks, or rezoning public land so that contractors can build houses nobody wants.

Transparent lip service

Rajoy’s move seems more about giving the public the impression that he is going to do something to stem the tide of corruption, rather than lifting the veil of secrecy that hides so much of what the government and political parties do.

The public was given 15 days to offer opinions and suggestions through a government website. The bill will then be debated in Congress, but is unlikely to be passed before Congress takes a break for its summer holidays in June.

Two groups, Access Info Europe and Civic Citizens Foundation, on Thursday set up their own website, tuderechoasaber.es, which will begin monitoring the government’s transparency and monitor citizens’ requests for government information.

Rajoy’s move is a timid response to a huge problem. But it does provide an opportunity to put the measures to the test, and by so doing, creates a platform from which to campaign for a proper Freedom of Information Act. That said, we can expect little support from either of the main political parties.