Access to administrative documents of public-sector enterprises
Right to information
Access to archives
RULING Nº 496/2010
15 of December of 2010
It is not unconstitutional to subject public enterprises incorporated in the form of companies whose corporate object is the management and disposal of public real estate assets to the obligation to provide private individuals with the right of access to their archives.
Public companies – even those which are subject to the logic of the market and competition – do not fall within the subjective scope of the right to economic initiative provided for in the Constitution.
Companies like those which appealed to the Court in the present case are designed to directly perform necessary public tasks pertaining to the Administration. When it resorted to this type of entrepreneurial entity, the state was not seeking to undertake a policy of intervening in the market, as if it were one more real estate operator or promoter. These companies manage the real assets that are allocated to the Administration, and the management of those assets (lato sensu, including their acquisition and disposal) is itself an administrative activity.
This work is subject to the general principles applicable to administrative activities – particularly the principles of legality, the pursuit of the public interest while respecting the legally protected rights and interests of private entities, equality, proportionality, justice, impartiality, and good faith.
This case concerned an appeal which two real estate companies lodged against a decision that the Supreme Administrative Court had handed down in response to a request for an order to provide information, consult a file or issue certificates. The particular issue was a journalist’s request for access to documents regarding the disposal in 2005, 2006 and 2007 of real estate property belonging to the state, which had previously been allocated for use by the Ministry of Justice. The appellants argued that when interpreted such that it allows any citizen to gain unlimited access to all the documents held by public companies, one of the articles in the Law governing Access to Administrative Documents (LADA) was unconstitutional.
The Court considered that the dimension of the norm which was at stake was solely that concerning the right of private entities to gain access to the archives of public companies whose corporate object is to manage and dispose of public real estate assets; the Court did not address the generalised subjection of all public companies to the duty to provide information linked to judicial proceedings, whatever the scope or purpose attributed to them by their articles of association or the law and whatever the conditions under which they act in the marketplace. The Court delimited the extent to which it was prepared to consider the constitutionality of the norm to the interpretation under which the norm was said to guarantee every citizen access to those documents of public enterprises incorporated in the form of companies whose corporate object is the management and disposal of public real estate assets, which (the documents) concern that activity, with the limits derived from the restrictions on the right of access that are provided for in the Law containing the norm.
The Court emphasised that the Constitution enshrines two fundamentally different, albeit related, rights of access to administrative information by citizens who are the object of public administration: the right to case-related administrative information (the right of citizens, whenever they ask, to be informed by the Administration as to the situation and progress of cases in which they are directly interested, and to know the definitive decisions that are taken with regard to those cases); and the right to non-case-related administrative information (the right of access administrative archives and records, without prejudice to the provisions of the law governing matters related to internal and external security, criminal investigation, and people’s private lives). The former protects the position of the citizen as a subject in the case in question or as a party with an interest in the decisions that are taken therein. The latter is a right that pertains to everyone, regardless of any individual interest. The generalised access by citizens who are the object of public administration to the Administration’s documents and records – the open archive principle – without any need to invoke a legitimating position, is a fundamental right whose nature is analogous to that of the constitutional rights, freedoms and guarantees, albeit one whose essential purpose is to safeguard the public interest. This open archive principle has also been enshrined at the level of the Community Administration – the Treaty of Amsterdam established a principle of general accessibility of files regarding the actions of Community institutions; and, as a Community source, this principle has been imposed in specific domains of the internal laws of the Member States, particularly the areas concerning public contracts and the environment. In 2009, given the importance of the transparency of public authorities in a pluralist democratic society, the Council of Europe also approved a Convention on access to public documents.
The Law governing Access to Administrative Documents regulates the right of access (as a right uti cives) to administrative archives and records outside the subjective and chronological framework of a concrete administrative case. Within the scope of application of this right, everyone has the right to gain access to administrative documents without the need to state any legitimating interest. This right includes the rights to consult the documents, reproduce them, and be informed that they exist and what they contain.
The subjective scope of the application of the access regime is particularly problematic when it concerns documents that are in the hands of public sector enterprises, especially when the latter are organised in the form of companies and pursue their activities under the aegis of the private law.
The present appeal addressed the question of whether subordinating entities that were created in the form of companies whose shareholders are exclusively public, or which are dominated by shareholders that are exclusively public, with the object of managing and disposing of state-owned real estate assets, to this duty constitutes a disproportionate restriction on certain dimensions of two fundamental rights – the right to property, and the right of private economic initiative – and on a number of fundamental principles of the so-called “Economic Constitution” (the part of the Constitution that deals with the economy) – namely the principle of the coexistence of the public, private and cooperative and social sectors, and the principle of competition.
The Court held that even when they are incorporated in a private form, are governed by private law and act without the powers pertaining to the authorities, public companies are one of the instruments that the state uses in order to pursue its activities, and possess a sphere of rights whose justification lies in the attributes and responsibilities the state charges them with. Their legal personality does not have an ontic substrate outside the entity “state”. They differ from private legal persons, which are instruments of the natural persons who combine their efforts and their capital to autonomously and freely pursue the venture in which they wish to engage. Now, it is only when the formation and activity of a legal person is a manifestation of the free development of natural persons that it makes sense to attribute fundamental rights to that legal person. It would be inappropriate to the instrumental nature of the organisations which the state itself has created to see them as the holders of rights that can be opposed to the legislator.
The Constitutional Court did not uphold the appellants’ argument that the court a quo should have distinguished between the particular situation of public companies which are subject to the logic of the market and to competition on the one hand and the other types of public company, which possess special public-law prerogatives, on the other; and that to subject such public companies to information-related obligations that are totally different from those facing private companies, without a mechanism for adequately weighing up the particular situation, was to undermine the right to property and the freedom of enterprise, the principle of the coexistence of the public, private and cooperative and social sectors, and the principle of competition, as well as the very principle of equality itself (given that public companies are thus the object of a treatment that differs greatly from that afforded to private companies, with which they are in competition).
The Court thus decided to deny the appeal.
The Ruling was the object of two dissenting opinions, whose authors were essentially of the view that the appellant public companies are purely competitive in nature, engage in a private business activity and find themselves in the marketplace in a situation that is equivalent to that of other, competing companies from the private sector. As such, the dissenting Justices felt that the appellants, as private administrative entities or private companies with a public function, can only be subject to those principles of administrative activity that represent negative limits on their activities, or parameters for juridicity, and not positive criteria as to what they ought to do.