Law 19/2013, of December 9, on Transparency, Access to Public Information and Good Government

OFFICIAL BULLETIN OF THE STATE No. 295 Tuesday, December 10, 2013 Sec. I. Page 97922 I. GENERAL PROVISIONS THE HEAD OF STATE 12887 Law 19/2013, of December 9, on Transparency, Access to Public Information and Good Government. JUAN CARLOS I KING OF SPAIN To all who see and understand this. Know: That the General Courts have approved and I come to sanction the following law: INDEX Preamble. Preliminary Title. Article 1. Object. Title I. Transparency of public activity. Chapter I. Subjective scope of application. Article 2. Subjective scope of application. Article 3. Other obliged subjects. Article 4. Obligation to provide information. Chapter II. Active publicity. Article 5. General principles. Article 6. Institutional, organizational and planning information. Article 7. Legally relevant information. Article 8. Economic, budgetary and statistical information. Article 9. Control. Article 10. Transparency Portal. Article 11. Technical principles. Chapter III. Right of access to public information. Section 1. General regime. Article 12. Right of access to public information. Article 13. Public information. Article 14. Limits to the right of access. Article 15. Protection of personal data. Article 16. Partial access. Section 2. Exercise of the right of access to public information. Article 17. Application for access to information. Article 18. Causes of inadmissibility. Article 19. Processing. Article 20. Resolution. Article 21. Information units. Article 22. Formalization of access. cve: BOE-A-2013-12887

OFFICIAL BULLETIN OF THE STATE No. 295 Tuesday, December 10, 2013 Sec. I. Page 97923 Section 3. Appeals regime. Article 23. Appeals. Article 24. Claim before the Transparency and Good Government Council. Title II. Good government. Article 25. Scope of application. Article 26. Principles of good government. Article 27. Offences and sanctions in matters of conflict of interests. Article 28. Offences in matters of economic-budgetary management. Article 29. Disciplinary offences. Article 30. Sanctions. Article 31. Competent body and procedure. Article 32. Statute of limitations. Title III. Transparency and Good Government Council. Article 33. Transparency and Good Government Council. Article 34. Purposes. Article 35. Composition. Article 36. Transparency and Good Government Commission. Article 37. President of the Transparency and Good Government Council. Article 38. Functions. Article 39. Legal regime. Article 40. Relations with the General Courts. Additional Provision First. Special regulations of the right of access to public information. Additional Provision Second. Revision and simplification of regulations. Additional Provision Third. Public Law Corporations. Additional Provision Fourth. Claim. Additional Provision Fifth. Collaboration with the Spanish Data Protection Agency. Additional Provision Sixth. Information of the House of His Majesty the King. Additional Provision Seventh. Additional Provision Eighth. Final Provision First. Modification of Law 30/1992, of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure. Final Provision Second. Modification of Law 5/2006, of April 10, on the regulation of conflicts of interest of members of the Government and senior officials of the General State Administration. Final Provision Third. Modification of Law 47/2003, of November 26, General Budgetary. Final Provision Fourth. Modification of the additional tenth provision of Law 6/1997, of April 14, on the Organization and Functioning of the General State Administration. Final Provision Fifth. Final Provision Sixth. Modification of Law 10/2010, of April 28, on the prevention of money laundering and the financing of terrorism. Final Provision Seventh. Regulatory development. Final Provision Eighth. Competential title. Final Provision Ninth. Entry into force. cve: BOE-A-2013-12887

OFFICIAL BULLETIN OF THE STATE No. 295 Tuesday, December 10, 2013 Sec. I. Page 97924 PREAMBLE I Transparency, access to public information and good governance rules must be the fundamental axes of all political action. Only when the action of public officials is subject to scrutiny, when citizens can know how decisions affecting them are taken, how public funds are managed or under what criteria our institutions act can we speak of the beginning of a process in which public powers begin to respond to a society that is critical, demanding and that demands participation from public powers. Countries with higher levels of transparency and good governance rules have stronger institutions, which favor economic growth and social development. In these countries, citizens can better judge the capacity of their public officials and decide accordingly. Allowing better oversight of public activity contributes to the necessary democratic regeneration, promotes the efficiency and effectiveness of the State and favors economic growth. This Law has a triple scope: it increases and reinforces transparency in public activity –which is articulated through obligations of active publicity for all Administrations and public entities–, recognizes and guarantees access to information –regulated as a right of broad subjective and objective scope– and establishes the good governance obligations that public officials must comply with as well as the legal consequences derived from their non-compliance –which becomes a requirement of responsibility for all those who carry out activities of public relevance–. In these three aspects, the Law represents a significant advance in the matter and establishes standards comparable to those of the rest of consolidated democracies. In short, it constitutes a fundamental and necessary step that will be accompanied in the future by the promotion and adherence by the State to multilateral initiatives in this field as well as by the signing of existing international instruments in this matter. II In the Spanish legal system, there are already sectoral norms that contain specific obligations of active publicity for certain subjects. Thus, for example, in matters of contracts, subsidies, budgets or activities of senior officials, our country has a high level of transparency. However, this regulation is currently insufficient and does not satisfy the social and political demands of the moment. Therefore, with this Law, progress is made and deepened in the configuration of obligations of active publicity that, it is understood, must bind a large number of subjects among which are all Public Administrations, the bodies of the Legislative and Judicial Power insofar as they refer to their activities subject to Administrative Law, as well as other constitutional and statutory bodies. Likewise, the Law will apply to certain entities that, due to their special public relevance, or due to their condition as recipients of public funds, will be obliged to reinforce the transparency of their activity. The Law expands and reinforces the obligations of active publicity in different areas. In matters of institutional, organizational and planning information, it requires the subjects included in its scope of application to publish information relating to the functions they carry out, the regulations applicable to them and their organizational structure, in addition to their planning instruments and the evaluation of their degree of compliance. In matters of legally relevant information that directly affects the scope of relations between the Administration and citizens, the law contains a wide repertoire of documents that, when published, will provide greater legal certainty. Likewise, in the field of economically, budgetarily and statistically relevant information, a wide catalog is established that must be accessible and understandable to citizens, given its character as an optimal instrument for the control of the management and use of public resources. Finally, the obligation to publish all information that is most frequently the subject of an access request is established, so that transparency obligations are harmonized with the interests of the citizenry. To channel the publication of such a large amount of information and facilitate compliance with these obligations of active publicity, and from the perspective that one cannot, on the one hand, speak of transparency and, on the other, not put in place adequate means to facilitate access to the disseminated information, the Law contemplates the creation and development of a Transparency Portal. New technologies allow us today to develop tools of extraordinary utility for the compliance with the provisions of the Law whose use allows that, through a single point of access, the citizen can obtain all available information. The Law also regulates the right of access to public information, which, however, has already been developed in other provisions of our legal system. In effect, starting from the provision contained in article 105.b) of our constitutional text, Law 30/1992, of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure, develops in its article 37 the right of citizens to access the registers and documents that are found in administrative archives. But this regulation suffers from a series of deficiencies that have been repeatedly highlighted by not being clear the object of the right of access, by being limited to documents contained in administrative procedures already concluded and by its exercise being extraordinarily limited in its practical articulation. Likewise, but with a sectoral scope and derived from respective Community Directives, other norms contemplate access to public information. This is the case of Law 27/2006, of July 18, regulating the rights of access to information, public participation and access to justice in matters of the environment and of Law 37/2007, of November 16, on the reuse of public sector information, which regulates the private use of documents in the possession of Administrations and bodies of the public sector. Furthermore, Law 11/2007, of June 22, on electronic access of citizens to Public Services, while recognizing the right of citizens to relate to the Administration by electronic means, is on a path in which progress is made with this Law: the implementation of a culture of transparency that imposes the modernization of the Administration, the reduction of bureaucratic burdens and the use of electronic means to facilitate participation, transparency and access to information. The Law, therefore, does not start from nothing nor fill an absolute void, but rather deepens what has already been achieved, supplying its shortcomings, remedying its deficiencies and creating a legal framework in line with the times and citizens' interests. From the perspective of comparative Law, both the European Union and most of its Member States already have specific legislation in their legal systems regulating transparency and the right of access to public information. Spain could no longer remain on the sidelines and, taking as an example the models provided by the countries in our environment, adopts this new regulation. With regard to good government, the Law represents an advance of extraordinary importance. Merely programmatic principles without legal force are incorporated into a norm with the rank of law and come to inform the interpretation and application of a sanctioning regime to which all public officials understood in a broad sense are subject, who, regardless of the Government they are part of or the Administration in which they provide their services and, precisely because of the functions they perform, must be a model of exemplary conduct in their behavior. III Title I of the Law regulates and increases the transparency of the activity of all subjects who provide public services or exercise administrative powers through a set of provisions collected in two differentiated chapters and from a double perspective: active publicity and the right of access to public information. The subjective scope of application of this title, collected in its Chapter I, is very broad and includes all Public Administrations, autonomous bodies, state agencies, public business entities and public law entities, insofar as they have attributed functions of regulation or control over a certain sector or activity, as well as Public Law entities with their own legal personality, linked or dependent on any of the Public Administrations, including public Universities. In relation to their activities subject to Administrative Law, the Law also applies to Public Law Corporations, the House of His Majesty the King, the Congress of Deputies, the Senate, the Constitutional Court and the General Council of the Judicial Power, as well as the Bank of Spain, the Council of State, the Ombudsman, the Court of Auditors, the Economic and Social Council and the autonomous institutions analogous to them. It also applies to commercial companies in whose share capital the direct or indirect participation of the aforementioned entities is greater than fifty percent, to foundations of the public sector and to associations constituted by the Administrations, bodies and entities to which reference has been made. Likewise, it will apply to political parties, trade unions and business organizations and to all private entities that receive a certain amount of public aid or subsidies. Finally, persons who provide public services or exercise administrative powers are also obliged to supply to the Administration to which they are linked, upon request, all the information necessary for the latter to comply with the obligations of this Law. This obligation is equally applicable to contractors of public sector contracts. Chapter II, dedicated to active publicity, establishes a series of obligations for the subjects included in the scope of application of Title I, who will have to disseminate certain information without waiting for a specific request from the citizens. In this point, data on institutional, organizational and planning information, legally relevant information and of an economic, budgetary and statistical nature are included. To favor decisively the access of all to the information that is disseminated, the Transparency Portal will be created, which will include, in addition to the information on which there is an obligation of active publicity, that whose access is requested most frequently. The Portal will be a meeting and dissemination point, which shows a new way of understanding the right of citizens to access public information. It is also foreseen in this point that the General State Administration, the Administrations of the Autonomous Communities and the entities that make up the Local Administration may adopt collaboration measures for the fulfillment of their obligations of active publicity. Chapter III broadly configures the right of access to public information, which is held by all persons and which may be exercised without the need to motivate the request. This right will only be limited in those cases where this is necessary due to the very nature of the information –derived from what is established in the Spanish Constitution– or due to its entry into conflict with other protected interests. In any case, the limits provided will be applied taking into account a damage test (of the interest safeguarded with the limit) and public interest in disclosure (which in the concrete case the public interest in the disclosure of the information does not prevail) and in a proportional and limited manner by its object and purpose. Likewise, since access to information can directly affect the protection of personal data, the Law clarifies the relationship between both rights establishing the necessary balancing mechanisms. Thus, on the one hand, insofar as the information directly affects the organization or public activity of the body, access will prevail, while, on the other hand, data that the regulations qualify as specially protected are protected –as it cannot be otherwise–, for whose access, as a general rule, the consent of its holder will be required. With the aim of facilitating the exercise of the right of access to public information, the Law establishes an agile procedure, with a short response period, and provides for the creation of information units in the General State Administration, which facilitates the citizen's knowledge of the body before which the request must be presented as well as the competent one for processing. In matters of appeals, a non-mandatory and prior claim to the judicial route is created, which will be known by the Transparency and Good Government Council, an independent body of new creation, which replaces administrative appeals. Title II grants the rank of Law to the ethical and acting principles that must govern the work of members of the Government and senior officials and assimilated from the Administration of the State, of the Autonomous Communities and of the Local Entities. Likewise, the sanctioning regime applicable to them is clarified and reinforced, in consonance with the responsibility to which they are subject. This system seeks that citizens have public servants who adjust their actions to the principles of efficiency, austerity, impartiality and, above all, responsibility. To achieve this goal, the Law enshrines a sanctioning regime structured in three areas: offences in matters of conflict of interests, in matters of economic-budgetary management and in the disciplinary field. In addition, offences derived from the non-compliance with Organic Law 2/2012, of April 27, on Budgetary Stability and Financial Sustainability are incorporated. In the economic-budgetary field, it is noteworthy that sanctions will be imposed on those who commit expenses, liquidate obligations and order payments without sufficient credit to carry them out or in infringement of what is established in budgetary regulations, or do not justify the investment of the funds to which the equivalent budgetary regulations refer. In this way, a fundamental control mechanism is introduced that will prevent irresponsible behaviors that are unacceptable in a State of Law. The commission of the provided offences will give rise to the imposition of sanctions such as dismissal from the public office held by the offender, non-receipt of indemnity pensions, the obligation to return the amounts unduly received and the obligation to indemnify the Public Treasury. It should be noted that these sanctions are inspired by those already provided in Law 5/2006, of April 10, on conflicts of interest of members of the Government and senior officials of the General State Administration. In addition, it is established the provision that authors of very serious offences cannot be appointed to hold certain public offices for a period of between 5 and 10 years. Title III of the Law creates and regulates the Transparency and Good Government Council, an independent body to which competences are granted to promote the culture of transparency in the activity of the Public Administration, to control the compliance with the obligations of active publicity, as well as to guarantee the right of access to public information and the observance of the provisions of good government. Therefore, a supervision and control body is created to guarantee the correct application of the Law. The Transparency and Good Government Council is configured as an independent body, with full legal capacity and to act and has a simple structure that, while guaranteeing its specialization and operability, avoids creating large administrative structures. The independence and autonomy in the exercise of its functions will also be guaranteed by the parliamentary support with which the appointment of its President must be backed. To respect the autonomous competences as much as possible, it is expressly foreseen that the Transparency and Good Government Council will only have competences in those Autonomous Communities with which it has signed an Agreement to that effect, leaving, in other cases, in the hands of the autonomous body that has been designated the competences that at the state level are assumed by the Council. The additional provisions address various issues such as the application of special regulations of the right of access, the revision and simplification of regulations –understanding that it is also an exercise of good government and a further manifestation of transparency to clarify the regulations that are in force and applicable– and the collaboration between the Transparency and Good Government Council and the Spanish Data Protection Agency in the determination of criteria for the application of the provisions of the law regarding the protection of personal data. The final provisions, among other issues, modify the regulation of the right of access to administrative archives and registers contained in Law 30/1992, of November 26, expand the publicity of certain information that appears in the Register of assets and rights of senior officials of the General State Administration and the obligation of publicity provided for in paragraph 4 of article 136 of Law 47/2003, of November 26, General Budgetary. Finally, the Law provides for a phased entry into force taking into account the special circumstances that the application of its various provisions will entail. PRELIMINARY TITLE Article 1. Object. This Law aims to expand and reinforce the transparency of public activity, regulate and guarantee the right of access to information relating to that activity and establish