The constitutional dimension of the principle of transparency and the «active» information right

Abstract

Transparency and the right to information are essential elements in a democratic state. Generally, the constitutions do not mention explicitly these principles. They are in connection with some constitutional principles and rights. Information is also a principle that generates a set of obligations for public institutions, and especially for judicial and administrative ones (active information). The Act 19/2013 about transparency, access to public information and governance represents an important initiative that has updated partially the Spanish legislation. «Active information» has been configured as an instrumental and obligatory principle for public administrations, although not as a right that can be acted upon by the citizen. The Transparency and Governance Council becomes the main guarantee of the active information obligations imposed by the 2013 Act. The principle of transparency has been applied with some specialties in the Administration of Justice. However the progressive relevance of the principle of transparency, it not possible to affirm the existence of a true fundamental right in order to access to active information; but we can defend some arguments that reinforce its juridical value. Finally, the essay reveals the deficits and improvements that the present legislation would require.

Summary:
1.- Introduction: the constitutional dimension of the Principle of Transparency. 2.- Constitutional formulations of the «active information». 3.- Law 19/2013, of December 9, about Transparency, Access to public information and Governance. A legal reform partially innovative. 3.1.- The legislative configuration of the principle of transparency. 3.2.- The «active» information as the instrument of the transparency. 3.3.- The institutional guarantee of active information: Transparency and Governance Council. 3.4.- The Ombudsman and the control of transparency. 4.- The obligation of transparency in the Judicial Power. 5.- The constitutional and fundamental right to transparency and public information. 6.- Some conclusions, doubts and criticisms about the right to active information in Law 19/2013