True Freedom of Information Remains Elusive in Italy

After finally adopting a proper freedom of information act, Italy improved its right to information rating - but only in theory, as in practice there is still much to be done to ensure freedom of information.
Until 2013, a law officially titled Law 241/1990 was the only available tool for Italian citizens to enforce their right to access information held by public authorities (PAs).

The law's inability to guarantee a comprehensive control of public authorities' activities by the wider society prompted a review in 2013, which led to the ratification of the Transparency Decree by the Italian Council of Ministers.

The Transparency Decree partially widened citizens’ right to access information held by PAs, introducing a number of requirements for publication on public websites. Despite this, the requirement of "universal access", a cornerstone for any freedom of information act (FOIA) that allows anyone to ask for any document, was still lacking.

A truly comprehensive FOIA that included this major provision came into force in 2016, largely thanks to the pressure exercised on the government and Parliament by the Foia4Italy movement – an initiative formed by more than 30 Italian civil society organizations.

A stronger right - in theory

By virtue of a real FOIA coming into force, Italy made a historic step forward in the Right to Information Rating, an international ranking on access to information.

This is a judgement on paper, however, and measures only the quality of the legislation. The NGO “Diritto di Sapere” therefore carried out a monitoring analysis on the implementation of the Italian FOIA in order to investigate how PAs answer to requests for effective access in their daily work.

The results were published in the report "Ignorance of State," a title that already shed light on the FOIA's implementation by Italian PAs.

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Measuring access - in practice

Fifty-six participants, including ordinary citizens (15), journalists (18) and activists of associations (23), took part in the monitoring, and they have collectively sent 800 requests for “universal access” to PAs, with the aim of investigating and shedding light on some issues that affect them and their work closely.

Due to the heterogeneity of the group of participants, the subject of their requests was manifold - among the most frequent, healthcare (48 percent), government spending (18 percent) and migrants (15 percent), but also LGBTI, Roma, and disabled rights (5 percent) and environment (4 percent).

The nature of PAs that have been addressed is therefore linked to the topic and content chosen by the participants for their requests.

These were the findings:

  • Seven out of ten requests were ignored. Administrative silence is still widespread: 73 percent of FOIA requests did not receive an answer within 30 days, as provided by the 2016 amendments to the Transparency Decree. Even considering the answers received within 45 days, the fraction of PAs ignoring the requests amounted to 53 percent. Therefore, most Italian PAs still ignore the demands of their citizens, thus being able to disregard the law that requires them to provide an answer - among the most alarming authorities there are hospitals, local health authorities and ministries, but also municipalities and Prefectures.
  • Too many illegitimate denials. The FOIA defines several limits and exceptions to "universal access," which are the only grounds for refusal by PAs. However, 35 percent of denials collected during the monitoring belongs to the category of "illegitimate denials," i.e. access was denied for lack of a clear motivation or in a way that is inconsistent with the exceptions foreseen by the FOIA. In several cases, the request has been addressed according to the previous law on access to information (241/1990) or has been considered as a request for civic access on publication requirements. These are clear warning signs revealing how the new FOIA is still poorly known and respected by the PAs, thus suggesting the need to invest resources in training for civil servants.
  • If properly interpreted, FOIA is a valuable tool. Even though there are still major problems of interpretation/enforcement, the report highlights that "universal access," if properly interpreted, provides access to certain types of documents, data and information that used to be inaccessible to citizens with the previous law 241/1990. It is worth to mention that some requests that had been ignored in 2013, when the law 241/1990 was still in place, were sent again with success in this monitoring.

Still much to be done

The findings suggest that the title “Ignorance of State” could not be more appropriate. Though being alarming, the picture that emerges from the monitoring also gives hope for future improvements: if applied/enforced/interpreted with less discretion by the authorities in the coming years, the FOIA could truly enhance the degree of transparency in Italy.

To this end, however, it is necessary to invest resources for training civil servants, which is basic requirement for ensuring compliance with the obligations of the FOIA - the deadline of 30 days, the denial reasons, guidance on how to send a request. Finally, given the novelty of the Italian FOIA, there is room for improvements and amendments.