We now have simply witnessed the embarrassing scandal of the authorities concealment of an opinion of the Council of State [1], referring to a standard with European significance, which appears to have raised the community suspicions.

This matter arouses curiosity in transparency in regulatory decision-making. Shortly, the Council of Transparency and Good Governance must categorical itself on the scope of the Transparency Regulation in relation to the so-called “Normative footprint”.

A physique with regulatory powers was requested to entry the notes within the file ready by the regulatory physique concerning the observations obtained within the consultations carried out (public session).

The physique denies entry based mostly on the next argument: “Relating to the extension of the request for entry to “the notes within the file ready by the… concerning the observations obtained within the consultations made”, this Institute informs that the explanation for inadmissibility offered for in article 18.1 b) of Regulation 19/2013, of December 9, on transparency, entry to public info and good governance, when the request refers to notes which have the primary situation of auxiliary or assist, whose content material constitutes the opinion or private evaluation of the creator accountable for the Subdirectorate, doesn’t mirror in any case the opinion of the President of the Institute, and doesn’t have the character of obligatory documentation of the file. The ultimate opinion ensuing from the feedback obtained is the one mirrored within the ultimate model of the undertaking. This determination is supported by the report obtained from the State Legal professional in response to the question made by this Institute requesting clarification on the situation of stated notes ”.

The Council for Transparency and Good Governance ought to assess this poor argument and the important observations on it:

The knowledge requested refers to a really related matter: public decision-making (laws) and extra particularly what has been referred to as the “Normative footprint”. These are the ins and outs of the method of drafting a regulation and, extra significantly, the contributions that in a democratic and participatory society make the potential recipients of the laws, because the viewers and public info procedures are meant to assemble the opinion of residents holders of official rights and pursuits affected by a regulatory undertaking already drawn up, straight or by way of the organizations or associations that signify them, in addition to acquiring any further contributions that different individuals or entities might make.

On this sense, what the preamble of Regulation 19/2013 says: “Solely when the motion of public officers is scrutinized, when residents can know how selections that have an effect on them are madeHow public funds are managed or underneath what standards our establishments act, we are able to communicate of the start of a course of through which the general public powers start to reply to a society that’s important, demanding and that calls for the participation of the general public powers ”.

Subsequently, it’s of apparent public curiosity to know what residents, corporations and different personal entities have contributed to the method of drafting laws; know who they’re; and to know what’s the evaluation that the promoter and elaborating physique of the usual makes of stated contributions.

For that reason additionally, article 129.5 (ideas of fine regulation), of Regulation 39/2015, of October 1, on the frequent administrative process of Public Administrations, says that “In software of the precept of transparency, Public Administrations will enable easy, common and up to date entry to the laws in power and the paperwork of its manufacturing course of, within the phrases established in article 7 of Regulation 19/2013, of December 9, on transparency, entry to public info and good governance; clearly outline the targets of the normative initiatives and their justification within the preamble or explanatory memorandum; and they’re going to allow potential recipients to have an lively participation within the elaboration of the norms ”.

Article 7 of Regulation 19/2013 states that “Public Administrations, throughout the scope of their powers, will publish: d) The reminiscences and studies that make up the information for the elaboration of the normative texts, particularly, the reminiscence of the regulatory impression evaluation regulated by Royal Decree 1083/2009, of July 3 ”, have to be interpreted in broad and open phrases (“ particularly… ”) and it have to be understood that the Notes requested on the Evaluation of contributions in public session procedures will not be mere “auxiliary or assist info”.

Relating to the denial of entry to those notes within the file ready by the regulatory physique concerning the observations obtained within the consultations made, the next have to be stated (and for this the Interpretative Criterion CI / 006/2015 , of November 12, 2015, of the Council for Transparency and Good Governance, on the “Causes for inadmissibility of requests for info: auxiliary or assist info”):

  • There’s a absolute lack of motivation (“The causes of inadmissibility offered for in article 18 of the Regulation, have to be interpreted restrictively and their software should at all times be due Y suitably motivated ”).
  • They can’t be stated to represent the opinion or evaluation private of the creator accountable for the Subdirectorate and that they don’t mirror in any case the opinion of the President of the Institute. Whatever the particular one who might have carried them out, the evaluation have to be attributed to the physique that prepares the usual, which is the physique that submits the file for public session or info, no matter whether or not or not they mirror, compromise or not, the opinion of the President. What it’s about, with the entry request, is “know how selections that have an effect on them are made ” (preamble to Regulation 19/2013).
  • That they don’t seem to be obligatory documentation of the file is irrelevant.
  • For instance, on the Web it may be seen revealed formally the “Word of evaluation of the contributions obtained within the public session previous to the drafting of the Royal Decree undertaking that develops Regulation 19/2013, of December 9, on Transparency, Entry to Public Info and Good Governance.” https://transparencia.gob.es/transparencia/dam/jcr:5ae718fa-c453-4649-9a33-dbe589207812/NotaAportacionesConsultaPublica.pdf

In conclusion, the knowledge requested, in our opinion, is related within the processing of the file and in shaping the general public will of the physique, that’s, it’s related for accountability, data of public decision-making, and your software.


[1] Opinion 783/2020 on the draft Royal Decree-Regulation approving pressing measures for the modernization of the Public Administration and for the execution of the Restoration, Transformation and Resilience Plan.

The Spanish Structure defines in its article 107 the Council of State because the “supreme advisory physique of the Authorities” after which defines the regulation of its composition and competence to an natural legislation. https://www.consejo-estado.es/introduccion.htm#:~:text=La%20Constituci%C3%B3n%20Espa%C3%B1ola%20define%20en,de%20su%20composici%C3%B3n%20y%20competencia.

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