The increase in transparency, access to public information and the rules of good governance will allow the general public to participate in the decision-making process regarding public matters or finding out how public funds are managed. The Act on Transparency, Access to Public Information and Good Governance represents significant progress in this field and establishes standards comparable to those of other consolidated democracies.


Introduction

Spain has complied with the international requirements representing the increase in public transparency; in fact, this path had already been laid comparatively speaking in other legal systems, of which those of the United States, South America and the majority of countries in Europe are appropriate examples.

Spain has jumped on the bandwagon with its approval of Law 19/2013, of 9 December 2013 on transparency, access to public information and good governance[1] ("Transparency Act" or "Law 19/2013"), its main purpose being to increase and strengthen transparency for all public authorities and entities, as well as to recognise and guarantee the right of access to information for citizens and to establish good governance obligations for public officials.

In addition, The Transparency Act anticipates the need for the relevant bodies of the autonomous regions and local entities to adjust to the obligations contained in the aforementioned Act. With that in mind, the Catalan Parliament has recently passed Law 19 /2014, of 29 December 2014 on transparency, access to public information and good governance[2] ("Catalan Transparency Act" or "Act 19/2014"). The Catalan Transparency Act is an example of the leeway that the autonomous regions have regarding transparency. The obligations of proactive disclosure, the issues related to the right of access to information and those concerning the procedure to enforce it are matters that have already been regulated by the Transparency Act. However, this does not preclude the autonomous regions from regulating issues not addressed by the state regulations or to introducing provisions that may be more conducive to transparency.

Accordingly, this is the case regarding the Catalan Act on Transparency, regulations that in general turn out to be more comprehensive and conducive to transparency than the Transparency Act. In this regard, Law 19/2014 expands upon certain essential issues in order to achieve the transparency which in Act 19/2013 was merely pointed out i.e. the promotion of the participation of the general public, mechanisms to enforce accountability or measures to implement open government. Moreover, this regional regulation also fills an important legal vacuum relating to the regulation of activities carried out by interest groups or lobbyists.

Below follows an analysis of the most pertinent points of the Catalan Transparency Act and how the latter differs from the Transparency Act.

Subjective scope of application

The Catalan Transparency Act, as well as state regulations, establishes the subjective scope of the application of this new regulation that binds the Catalonia Public Authority (Catalan Government (Generalitat) and other entities that are part of the Catalan Public authority), other public entities such as companies whose share capital is held by public entities and/or public foundations, as well as  private entities that provide public services or receive public funds to develop their own activities and those whose activity is legally defined as being in the public interest.

Obligations of transparency and proactive disclosure of information

With regard to the obligations of proactive disclosure of information, as well as the institutional and organizational information that is economically and legal relevant, the Catalan  Transparency Act anticipates the duty to disclose information related to public procurement, collaboration conventions and subsidies. These requirements apply to the Catalan Public Authority as well as those entities in the public sector.

As far as private individuals or entities are concerned they fit in to two different groups. On the one hand there are the private entities which develop public services, receive public funds to develop their own activity or those that perform activities that are legally defined as being in the public interest, and which hold an indirect obligation of transparency and disclosure of information. In other words, they are obliged to transfer the information to the relevant public body, which in turn is obliged to incorporate this information in a website created for that purpose.

On the other hand, we have the political parties and the associations and foundations related to them, trade union and corporate organizations, and the private entities that on the whole fall within the limits laid down in article 3.4 of the Catalan Transparency Act, which have a direct duty of transparency and disclosure of information equivalent to that required by public bodies.

In order to centralize all the information mentioned before, the Catalan Transparency Act stipulates the creation of a Transparency website[3], which is currently in service. The Transparency website is managed by the Catalan Government, however there is also the opportunity for each entity subject to these statutory obligations to create their own transparency websites. In spite of this, it is anticipated that it may be possible to gain access to the content of the rest of the websites of the entities subject to these statutory obligations via the Catalan Government Transparency website. The Catalan Government Transparency Website also exists alongside the National Transparency website.

In addition, the Transparency Website is intended to be a tool for the promotion of the participation of the general public in public matters, since the general public is able to submit opinions and suggestions about the quality of the services offered by the website and has access to certain information concerning its governing procedures.

Right of Access to Public Information

The obligations related to access to information are only applicable to the Catalan Public Authority; the Law does not anticipate any obligations relating to access to information that may affect private entities or individuals.

From the point of view both of individuals and companies, the right of access to information pertaining to the Catalan Public Authority is important due to the fact that it makes it possible to request -and obtain- a wide variety of information (that was previously difficult to obtain) concerning matters relating to their activities and interests that may prove useful .

The right of access to public information is a general right not requiring either prior notification or any justification. In order to facilitate the implementation of this right, the Law stipulates a short period of time during which the applications (one month) must be processed and deals with 'non-opposition' (where the failure to take a decision is deemed to constitute the taking of a positive decision) by the Catalan Public Authority, should there be no answer and notification therefrom (within the aforementioned one month period). Furthermore, the Catalan Transparency Act lays down, in detail, the conditions regarding access to public information and establishes a guarantee procedure to resolve the claims by administrative decision taken by an independent body.

Register of interest groups

For the first time in our legal history the Catalan Transparency Act has regulated the activity of the interests groups or lobbies.

The Law compels the Catalan Public Authority, local entities and other public bodies to which the Law applies to create a register of interest groups[4] (the "Register"). The aim of this Register is to have a record and control of the individuals and the organisations that uphold the interests of third parties or organizations relating to activities liable to influence the regulation or the implementation of public policies.

Therefore, the Register is designed to act as a transparency tool that allows the identification and highlighting of those individuals and entities that are in contact with the Catalan Public Authority in order to exert influence in favour of either their own interests or those of third parties and to ensure that the final decisions are beneficial to them, or at least do not harm their interests.

The Register is doubly important. On the one hand, it is a source of information regarding those individuals and entities that may have an influence on an administrative procedure. On the other hand, the Register is important because of the obligations that it imposes on those individuals and entities considered to be interest groups.

In this regard, it is important to bear in mind that the Catalan Public Authority and the interest groups in question adhere to the performance of various duties. With regard to the Catalan Public Authority these are: (i) to create a Register in accordance with the Law, (ii) to determine the information that the interest groups have to provide about their activities, interests and sources of funds, (iii) to establish a code of conduct for the interest groups in question, (iv) to establish a system to oversee compliance with the Law and the aforementioned code of conduct, (v) to publish the activities of the interest groups, in particular the meetings and hearings that they have held and the other documentation provided.

The requirements with which interest groups have to comply are: (i) to apply to the Register, (ii) to guarantee that the information provided is correct, complete and reliable (iii) to comply with the requirements of the code of conduct (iv) to accept the supervisory system established and the measures imposed in case of failure to adhere thereto, (iv) to inform the Catalan Public Authority of the activities performed by themselves, by their clients or by the individuals or organisations that employ them, the payments they receive and the expenses incurred in their activities carried out on behalf of the interest group in question.

Finally, the failure to comply with these requirements leads to suspension or cancellation of the relevant entry on the Register, with the corresponding effects on the interest group concerned. These measures are administrative sanctions and are regulated in Chapter II, Title VII of the Catalan Transparency Act.

Good governance

The measures related to good governance essentially affect the Catalan Public Authority and apply to the behaviour of their senior officials. However, in particular cases these measures may apply to individuals but, in general, these measures allow the individuals to verify and check that the public authority complies with all the requirements laid down in the Law.

With regard to the individuals to whom good governance is applicable, it is important to stress that the Catalan Transparency Act establishes new requirements as to the content of invitations to tender and the basis of the granting of subsidies and government-funded support which must include the ethical principles and the rules of behaviour to which they have to adhere, as well as anticipate the legal consequences should they fail to comply with these principles and rules. These duties add new requirements as to the content of contracts and to the granting of subsidies which add to the complexity of the areas relating to the validity, resolution and liabilities of said contracts and subsidies.

Open Government

The Catalan Transparency Act introduces a new concept called "Open Government" ("Govern Obert") which is understood to be a system that takes into consideration the opinion of the general public before the decision-making process takes place by using electronic media which facilitates the link between the Catalan Public Authority and the general public.

This new concept offers an important and potential change in the nature of the relationship between the Catalan Public Authority and the general public, which goes far beyond the traditional administrative procedure and has as its purpose the introduction of a global, open and collective dimension thereto.

In order to implement Open Government, the Catalan Transparency Act lays down some duties applicable to the Catalan Public Authority in order to encourage the participation of the general public in the decision-making process as well as checking and evaluating public policies. Moreover, other requirements that arise from Law 19/2014 are: (i) the requirement of the Catalan Public Authority to provide a reasoned motion for a resolution to the proposals, suggestions and opinions addressed by the general public; (ii) the requirement to establish procedures regarding the participation of the general public in matters concerning the development of those general plans and programmes relating to the definition of the most relevant public policies; (iii) the recognition of the general public's right to participate in legislative initiatives promoted by the Catalan Public Authority and to propose legislation.

Guarantees System

The Catalan Transparency Act establishes a special set of appeals available to the general public in order that they may uphold their rights and, above all, a system of penalties applicable to the high-ranking local government officials and staff, as well as to the individuals subject to the requirements stated in the Law.

Another important aspect to emphasise is the intervention of the Síndic de Greuges[5], Sindicatura de Comptes[6] and Anti-Fraud Office (Oficina Antifrau)[7] from the date when the offence is first recorded or reported. With regard to the system of penalties, Law 19//2014 categorizes the infringements into minor, serious and very serious infringements in relation to transparency, the right of access to information and good governance.

Conclusion

To conclude, all public authorities in Spain must comply with the requirements laid down in the Transparency Act. Notwithstanding this, the autonomous regions have leeway to regulate some issues relating to transparency, access to public information and good governance.

Accordingly, we have analysed the Catalan Transparency Act which has many points in common with the Transparency Act; however, there are some important differences or aspects that explain or extend the statutory regulations. The main examples are: (i) the creation of the Register of interest groups or lobbies, (ii) the recognition of non-opposition by the public entity in question and (iii) the increase of transparency in the public decision-making process with the implementation of the "Open Government" measures in force regarding transparency in the public sector.

In principle lawyers are not bound by the transparency requirements, although this does not mean that lawyers are not affected by the transparency regulations. In fact, lawyers have a conflict of interest because, one the one hand, there is the right and duty of confidentiality and on the other hand the right to transparency. With that in mind, this should be interpreted as meaning that in terms of confidentiality lawyers would maintain client confidentiality as to discussions with their client but not the fact that they have met with their client.


[1] Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno.

[2]Llei 19/2014, del 29 de Desembre, de transparència, accès a la informació pública i bon govern.

[3] Portal de Transparencia

[4]Registre de Grups d'Interès

[5]The Síndic de Greuges' role is to handle the complaints of anyone who is not protected against the acts or omissions of the body in question. It aims to ensure the proper working of the Catalan Government (Generalitat) and local administrations, like local councils, provincial governments or county councils. Thus, it functions as a supervisor of and collaborator with the Catalan Public authority with the aim of improving its efficacy. (http://www.sindic.cat/en/page.asp?id=27)

[6]The public auditing work of the Sindicatura de Comptes comprises drawing up audit reports for the Catalan Parliament and for those entities under audit scrutiny. The reports must contain observations and recommendations resulting from the audit of economic and financial activities, in accordance with the techniques and procedures of public sector auditing. If, as a result of its auditing activities, the Board of the Audit Office detects the existence of activities that could lead to administrative or legal proceedings, it must state this in its report, forward the information about these activities to the appropriate authorities and notify both the Catalan Parliament and the entity being audited. (http://www.sindicatura.org/en/web/guest/inici)

[7] The Anti-Fraud Office is an independent institution that works to enhance the integrity of the public sector in Catalonia by preventing and investigating corruption, such as the illegal use or allocation of public funds or any other irregular appropriation arising from acts involving conflict of interests or the use for private benefit of information derived from the inherent functions of public sector staff. (https://www.antifrau.cat/)


Joan Roca Sagarra a partner in the Corporate Department and Vice-president of Roca Junyent, SLP. He can be contacted at j.roca@rocajunyent.com. Júlia Gual Casademont is an associate in the Corporate Department at Roca Junyent, SLP. She can be contacted at j.gual@rocajunyent.com.


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