The right of access to information must be guaranteed in a democratic society. However, it is even more relevant during the COVID-19 pandemic. Citizens must be informed in real time and have access to verified information, preventing the spread of fake news and helping them understand what is going on, so that they can continue to trust governments and their institutions, and, at the same time, hold them to account.
The right of access to information is a fundamental right, enshrined in the International Covenant on Civil and Political Rights, the General Comment no.34 of the United Nations Human Rights Committee and the European Convention on Human Rights.
Spain, however, does not yet recognise it as such. In 2013, the Law on Transparency, Access to Public Information and Good Governance was finally approved. This is a major step forward that has allowed Spanish citizens to request information from public administrations, although in practice, it sets many limits to the exercise of this right.
One of the main problems is the fact that the right of access to information is not recognised as a fundamental right, something that, according to academic experts, could be done by linking it to article 20 of the Spanish Constitution on freedom of expression. However, in Spain, the act of requesting information is considered a mere administrative procedure, and the Law on Transparency is subject to the Public Administration and Common Administrative Procedure Act.
With the outbreak of the COVID-19 pandemic, and the subsequent declaration of the state of alarm established in Royal Decree 463/2020, all administrative procedures were suspended. Only a few days later, an amendment to Royal Decree 465/2020 was approved, establishing that the corresponding bodies may decide whether to continue with the administrative procedures related to COVID-19 or not, provided they justify their decision.
This means that the public administrations are not obliged to process requests for information until the end of the state of alarm, though they can do so if they wish. This legal ambiguity has provoked great disparities throughout the country. While some regions, such as Castilla y León, Asturias, Castilla-La Mancha and La Rioja, among others, are processing requests for information, others, like Andalusia, the Canary Islands and Murcia have suspended these requests. Other regions, such as Madrid and Catalonia, are only processing some of the requests they receive.
Unfortunately, Spain is not the only country where this is happening. Many countries in Europe and Latin America have decreed the suspension of administrative deadlines for access to information requests. Fortunately, there are also some countries, like Argentina, where this type of suspension has been reversed.
At a time when processing requests is more complex, either because of the suspension of administrative deadlines or because of civil servants having to work from home, it is essential to prioritise proactive publication of information, especially of anything that is related to COVID-19. Proactive disclosure is a great accountability exercise that keeps citizens informed and can help reduce the number of requests for information about COVID-19.
In order to guarantee transparency and the exercise of the right of access to information during the pandemic, we recommend that both central and regional governments take the following measures:
* The Spanish Government should modify Royal Decree 463/2020, to exclude the right of access to information from the suspension of administrative deadlines.
* Urge the information units of the General State Administration and the Autonomous Communities, to respond as a priority all requests related to COVID-19 while the state of alarm is in force.
* Continue, whenever possible, to process requests not related to the pandemic received before or during the state of alarm, in order to avoid the resolution to extend itself in time.
*Duly document the decisions and public actions carried out, and ensure that all the information is processed correctly.
Access Info Europe works actively, in coordination with various organisations at global level, to protect the right of access to information in times of crisis. Recently, it has organised virtual meetings with experts on the right of access to information both in Europe and Latin America, together with Open Data Charter and Open Government Partnership (OGP), a webinar on the publication of open data on COVID-19, and participated in the elaboration of the OGP's Guide to Open Government and the Coronavirus: Right to Information.
Transparency and accountability are essential in a democratic state in order to maintain citizens' trust in government institutions, especially in times of crisis and uncertainty. Therefore, a fundamental right such as access to information must be protected and recognized as such, even in times of crisis.
Access Info Europe is a human rights organisation established in Madrid in 2006 and dedicated to promoting and protecting the right of access to information both in Spain and in the world.
This text by Access Info Europe was originally published in Rights International Spain