TABLE OF CONTENTS Sunshine Laws and Transparency and

integrity plans

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European Union United States Italy France Great Britain

TABLE OF CONTENTS Sunshine Laws and Transparency and

integrity plans

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It is Swedish 1766 Constitution that states for the first time the principle that any citizen should have access to administrative documents, the offentlighetsprincipen. The same principle was then recognized in other Scandinavian countries, then the US, France, the Netherlands, Australia and New Zealand, Canada, Greece, Italy and Great Britain. It is from the British Expression “sunshine laws” that the legal acts embodying the offentlighetsprincipen are nowadays indicated. Sunshine laws implicate the right for every individual to gain access to information from the P.A., such a right being eventually limited by an a priori public interest in secrecy (national security) or by specific considerations. We call this absolute or relative limitations to the right. In charge for the correct application of sunshine laws is a peculiar feature of the various legal systems: it could be an independent or government-derived body, or even a jurisdictional entity. Moreover, not only the controller’s identity varies from country to country but nations also differ on limitations of the right, people entitled to it and information that may or may not be disclosed.

TABLE OF CONTENTS European Union

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The right to have access to European Institutions’ documents has been established by several treaties, starting with 1992 Maastricht’s, and specifically regulated by a European regulation in order to guarantee “the democratic nature of European institutions and the people’s trust in public administrations”. Amsterdam’s 1997 treaty strengthened the right to have access to documents (art. 255), while the 2000 European declaration of fundamental rights (art. 41) includes it among fundamental rights. In 2001 the Commission and the Council adopted the European Code of good administrative conduct and established a precise discipline on the right to have access to documents. Such a discipline has been transposed in regulation 1049/2001. Finally, the consolidated version of the 2008 Treaty on the functioning of the EU has maintained further that “in order to promote good administrative conducts and guarantee the participation of civil society, the EU institutions, organs and bodies should operate in a transparent way” and has therefore reiterated the importance of the right to have access to EU institutions’ documents (art.15).

TABLE OF CONTENTS European Union

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Focus on 1049/2001 regulation: This regulation pinpoints various aspects of the right to have access to documents, namely entitled subjects, limitations to the access and jurisdictional protection of the right itself. As to legitimate subjects, all European Union citizens, all people (natural or legal) that legally reside in the EU and even those who do not reside in the EU may benefit from the right to have access to documents of the Union (art.1). All the documents owned by an institution, no matter whether the institution created or received them, may be accessible, whatever activity or sector they are about, including international legal instruments (art.1). Limitations, on the other hand, may be absolute or not. The first kind of limit occurs should the public interest be severely damaged in case of publication of the requested documents: this is the case of military defense, national security, international relations, financial or monetary policy, private life and individual integrity, vital commercial interests, jurisdictional procedures, consultancy or inspective activities or the correct functioning of the institutions’ decisional process (art.4). A “relative” limitation occurs, instead, when the publication of a certain document would damage or alter a EU institution’s decisional process, with respect to a still open issue, or should the document be for internal use only . About ways of access, art. 2 states that requests have to be in the written or electronic form. Art. 12 guarantees the direct access to the documents relating to legislative procedures. Finally, legal protection is guaranteed by the control of the European Court of Justice.

TABLE OF CONTENTS United States

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The access to administrative documents is regulated in the US by the Freedom of Information Act (FOIA), dating back to 1966 and emended in 1996 by the Electronic Freedom of Information Act Amendments, in 2002 by the Intelligence Authorization Act and in 2007 by the Openness Promotes Effectiveness in our National Government Act. It only applies to federal administrations and establishes the right of every individual to gain access to administrative archives, for any public or private reason. States do have similar laws, with a few peculiarities. The FOIA establishes a very general discipline, delegating specific legal provisions to agencies. It indicates in the “public” the entitled subjects, thus not imposing any particular qualification. After 2007 amendments, however, information is no longer accessible to private citizens but only to States or US districts and territories. Accessible documents relates to administrative regulation or adjudication activities and may be final or drafts, single or multiple documents, political in nature or not, interpretations, manuals, instructions for employees or copies of already requested documents that may have further public relevance. Absolute limitations to access operates whenever requested documents relate to defense or international relations, have solely internal or inter-agency relevance, have been explicitly excluded from access by a federal law, contain confidential private or commercial information, including personal or medical data, jurisdictional data and business secrets, contain data about financial regulation agencies or about geological and geophysical information. Relative limitations apply, on the other hand, to documents relating to criminal proceedings or FBI’s espionage- and terrorism-related activities.

TABLE OF CONTENTS United States

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Sunshine Laws- USA In order to gain access to administrative documents, a specific motivated request should be addressed. Should the motivation reflect a general public interest, the access should be free or very cheap. Otherwise, a “reasonable” fee, reflecting costs of research, duplication and study of the documents, may be imposed by the competent agency. The same agency is due to notify the decision on whether to grant access to requested documents before 20 days from the request. Jurisdictional protection is guaranteed by district courts. It is the administration itself that must prove why the access has been denied. Should administrative personnel be suspected to have acted arbitrarily, a Special Counsel is in charge of the investigation and disciplinary recommendations.

TABLE OF CONTENTS Italy

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The right to have access to administrative documents has been established in Italy by law n. 241/1990, while sectoral more specific rights to information have been set out by law n.39/1997 (environmental information) and law n. 109/1994, artt. 22, 29 e 33 (public works), respectively broadening and narrowing the possibility to access to administrative documents. Entitled subjects are distinguished in people requesting participation access (art. 7 and art. 9) or knowledge access (art. 22). In the first case those entitled to ask for documents are “those subjects involved in, and who will eventually bear all the effects of, an administrative proceeding and (…) all that are legally obliged to intervene in such a proceeding” (art.7), in addition to “anybody, legal or natural person, private association or public body, that might be damaged by the results of the proceeding” (art.9). On the other hand, a knowledge-aimed access can be requested by “any private subject, including those collective in nature, that has a direct, present and concrete interest, corresponding to a legally recognized situation and linked to the requested documents” (art.22). This qualification (the concrete, present and direct interest), furthermore, is subject to the administration judgment.

TABLE OF CONTENTS Italy

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Documents that may be requested include “whatever graphical, photo-cinematic, electro-magnetic representation of administrative acts, owned by a public administration and concerning the public interest, even if of solely internal use” (art. 22), where as “public administration” we intend the State, autonomous and special firms, public entities and public services’ management societies (art. 23). We may observe that data or statistics are not accessible but by an individual whom the data relate to (art.22), since these data are not in a “document-form”. Limitations are, as usual, either absolute or relative. As for the first category, it is forbidden to make public classified documents of the State or its public administrations (therefore, we can see that the same P.A. that has to decide whether granting access to its documents is able to choose whether to make them classified). Other excluded documents relate to tributary issues, normative and programming issues, psico-attitudinal data (art. 24). Again, it is up to the P.A. to decide whether to include its documents in these categories. Moreover, the government may exclude from publication those documents that, if made public, may cause a specific damage to national security and defense, to the country’s international relations or to its monetary policy, or should the documents be instrumental to prevent and fight criminality, relative to private life of natural or legal persons (including financial, medical, industrial and commercial data) or connected to collective labor contracts (art. 24).

TABLE OF CONTENTS Italy

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The right of having access to documents is made up by the right of seeing the documents and the right to have a copy of the documents (art. 25). The request should be motivated in order to prove the connected interest. The addressed administration must reply before 30 days from the request. If it does not, a rejection is assumed (art.25). Should the requester be denied the access or not given appropriate reply, she could either appeal to a regional administrative tribunal or ask for a second evaluation of her request to the civic defender. Should the latter not be operating, the competent body is the Commission for the right to have access to administrative documents (art. 27). Both actions should be taken before 60 days from the request and the Commission or the civic defender have 30 days to reply (art. 25).

TABLE OF CONTENTS France

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The first French law to discipline the access to administrative documents dates back to 1978 (Loi n°78-753 du 17 juillet 1978 portant diverses mesures d’amélioration des relations entre l’administration et le public et diverses dispositions d’ordre administratif, social et fiscal). About environmental issue, like in Italy, specific legal provisions are set out in the Environmental Code. The law describes the entitled subjects as “those who request to exercise the right to have access to administrative documents” (art.1) and states that any document that is elaborated or owned by the State, the regions or any other public or private body, no matter the form, can be requested. These include dossiers, reports, studies, verbals, statistics, directives, programs and decisions (art.1). Drafts, however, are not subject to be requested, as well as any preparatory document (art.2). Limitations are, as usual, either absolute or relative. Should the document be subject to the first type, only a person who has a direct interest in it may have access to it (art.6). Such documents include opinions of the State Council and administrative jurisdictional bodies, national and regional Audit Court documents, documents relating to appeals to the national ombudsman, preparatory documents relative to medical services and medical personnel, private services contracts. Of course, should the documents contain relevant information for national security, defense, the government authority and decision process, international relations, monetary or financial policy, customs or fiscal violations and all legally-enforced public secrets, they should not be published in any case.

TABLE OF CONTENTS France

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On the other hand, only a person carrying a direct interest in them can have access to documents whose publication may damage his/her privacy, containing personal, commercial, industrial or medical data or information about his/her character, beliefs, attitude to work or behavior. The request to exercise the right to have access to administrative documents can include consultation in the administration’s headquarters, a hard copy to be obtained and consulted wherever appropriate or an electronic copy, according to the administration’s technical possibilities (art.3). Jurisdictional protection is articulated in a two-step process: an administrative appeal, first, and an actual jurisdictional process, should the result of the first step not be satisfactory. In particular, the first step is about the citizen facing a denial asking for the opinion of an independent authority, the Commission for the access to administrative documents (Commission d’accès aux documents administratifs) (artt. 20-23). If the citizen is not satisfied of such opinion, he/she can of course appeal to a judge (art. 20).

TABLE OF CONTENTS Great Britain

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The right of access to administrative documents in Great Britain is regulated by the Freedom of Information Act (FOIA), approved in 2000 and effective since 2005, and by the Freedom of Information (Scotland) Act, approved in 2002 and effective since 2005, too. Access to personal information is furthermore regulated by both the Data Protection Act (1998) and the FOIA, that regulates, for example, the right to appeal to the Information Commissioner. More specific legal provisions in the environmental context are set out by the Environmental Information Regulations (2004). The FOIA defines an entitled subject as “whoever has an interest in the access to administrative information”; the request, however, need not be accompanied by a demonstrated qualified interest. Any documents owned by authorities listed in FOIA (sec. 3 e Schedules 1 e 6) are accessible: these include ministers, the House of Lords and the House of Commons, city councils, district councils, parish councils, the National Sanitary Service, national schools and universities, the Police, the British Broadcasting Corporation, societies owned by the State or the Crown and any other entity exercising public authority or managing public services.

TABLE OF CONTENTS Great Britain

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Limitations are absolute or qualified and operate respectively in any case or on a case-by-case basis. Absolute limitations relates to information accessible through other channels, those regarding national security, jurisdictional procedures, parliamentary acts connected to parliamentary privileges, those protected by provisions in the Data Protection Act or other pieces of law, either national or European. On the other hand, in order to apply a qualified limitation, the authority needs to perform first a check of compatibility with FOIA and secondly a judgment that a public interest to keep information secret prevails on the private interest to publication. Among the information that FOIA considers eligible for qualified limitations, there are those that will be published shortly, those relating to national security or to jurisdictional proceedings, those relating to economic or government policies, opinions, communications and acts, documents containing industrial or commercial confidential information, communications with any Royal Family’s member or any information that, if published, may cause a damage to national defense, international relations, inter-administrative relationships, national economic interest, law application, control functions of any public authority, public services management, any individual’s moral and physical integrity and any legal or natural person’s commercial interests.

TABLE OF CONTENTS Great Britain

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The request to have access to administrative documents need not be motivated, although it must be in the written form and accompanied by the receipt of a fee payment, whose sum will be established by the same authority granting the access (sect. 8 and 9). The competent Minister may always impose to give some information out for free. The addressed authority must reply before 20 days from the request. These terms can always be modified by the competent Minister. Any rejection is to be motivated. Should a request of access face a denial, the requester can appeal to the Information Commissioner, an administrative body that autonomously decides on the case (sect. 50) and may oblige the authority to grant the requested access. Furthermore, should any of the parts not be satisfied with the Commissioner’s sentence, an appeal to the Information Tribunal is always an option.

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Thank You for your kindly attention

TABLE OF CONTENTS Sunshine Laws and Transparency and

integrity plans