Access to administrative documents in Portugal
- 1. The Portuguese Constitution ensures the right to inform, to inform yourself, and to be informed (Article 37, §1), the right to intra-procedural information (Article 268, §1), and the general right of access to administrative documents (Article 268, §2).
The right to have access to "administrative records and files", "subject to the legal provisions with respect to internal and external security, investigation of crime and personal privacy", is analogous to fundamental rights consecrated in the Constitution and therefore directly applied. It was regulated by Law 65/93, of 1993/08/26, Law of Access to Administrative Documents (LADA), modified in the meantime, by Law 8/95, of 1995/03/29, and by Law 94/99, of 1999/07/16.
- 2. The LADA declares the general principle of the open file in the following terms: "Everyone shall have the right of access to information by way of access to non-nominative administrative documents" (Article 7, §1).
The right of access to documents includes the right to obtain reproductions of documents, the right to consult documents free of charge and the right to be informed of the existence and the contents thereof.
In such a way as to encourage regular access by interested parties, Article 11 obliges public authorities to publish at least once every six months any documents containing an interpretation of enacted laws or a description of an administrative procedure, including in that reference the title and date, the subject and the originator of the documents, as well as the place where they may be consulted.
- 3. The LADA defines document as any support of information, either graphic, sound, visual or computerized, or any record of another nature, elaborated or held by the Public Administration, including files, reports, studies, opinions, minutes, official records, circulars, circular letters, internal orders, internal normative decisions, instructions and guidelines for the interpretation of the law or setting the framework for an activity, as well as other pieces of information (Article 4). "Administrative" documents signifies those "which originate within or are held by organs of either the State or the Autonomous Regions that perform administrative functions, by organs of either public institutes or public associations, organs of the local authorities, organs of associations or federations of local authorities, as well as other entities that exercise public authority according to the law" (Article 3). Personal notes, sketches or other internal records of a similar nature are excluded. The law also excludes documents that do not concern administrative activities, in particular documents concerning the meetings of the Council of Ministers and Secretaries of State, or the preparation of such meetings.
- 4. The principle of administrative openness or transparency has some legal exceptions.
- A. Firstly, documents containing information the access to which is considered to create a risk for or be harmful to the State's internal or external security shall be classified according to special legislation and for a strictly necessary period of time, either as documents the access to which is prohibited or as documents the access to which is subject to authorization (Article 5).
The denial of access to information classified as State secrecy is not automatic, because a well founded and concrete act of classification is necessary. Nor is it definitive or for indeterminate duration. According to Law 6/94, of 1994/04/07 (Law of State secrecy), the act of classification should set a term for interdiction, which cannot be more than 4 years, though it may be extended by new acts for identical periods.
- B. In contrast to what happens under the Code of Administrative Procedure (which is objectively more open but more restrictive as regards the subjects who have the right to procedural participation), under LADA the access to documents that are instrumental either in proceedings which are undecided or in the preparation of a decision shall be postponed until the decision has been taken or until the proceedings have been discontinued or until one year after their being prepared. Access to inquiries shall be permitted only after the deadline for disciplinary proceedings has expired.
- C. There are restrictions on the access to administrative documents in order to protect the intimate details of private life of citizens. LADA defines a "nominative document" as any support for information that contains personal data. Personal data shall mean any information concerning an identified or identifiable natural person, and containing assessments, or judgements of value, or covered by the clause of respect for private life. Access to this information is reserved to the person involved himself or to someone with authorization from that person. Without that, and as long as the information has not already fallen into the public domain, third parties can only receive access if they obtain a favourable opinion from the Committee of Access to Administrative Documents (CADA), after a requisition invoking and demonstrating "direct, personal and legitimate interest" in accessing that document (Article 8, §2). Personal data communicated to third parties shall not be used for purposes other than those under which access was granted, and shall otherwise entail liability for losses and damages under the terms laid down in the law. Information of a medical nature has only to be communicated to the person concerned through a medical doctor appointed by that person.
- D. The Public Administration should also refuse access to documents where such access risks to disclose commercial or industrial secrets relating to the internal life of companies (Article 10). It is forbidden to use information without having due respect for copyrights or patent rights and to reproduce, diffuse or use documents or information therein in such a way as to amount to unfair competition.
- 5. Requests for access to documents must be made in writing and contain the references necessary for identifying the document, as well as the name, the address and the signature of the interested person (Article 13).
If the request is for a "nominative document", it is necessary a favourable opinion from CADA. The Public Administration shall respond within a period of 10 days, either communicating its decision which, in the case of a refusal, even partial, has to be justified or notifying that the document is not within its possession and, where it knows of its whereabouts, point out the entity that possesses it, or pass the request on to the latter and so inform the interested person (Article 15). If not satisfied with the response, or if there is no response, the interested party can complain to CADA. After CADA' s report assessing the situation, the entity that refused the request shall communicate its final decision. The person concerned shall be entitled to appeal before the courts against any final decision. Where it has doubts about the possibility of access to the information contained in the document sought, the requested entity may also request an opinion from CADA (Article 15).
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