Senza categoria

The Italian Government approved a legislative decree on transparency granting everyone the right to access documents held by public bodies. The text, published yesterday by many newspapers, shows major improvements, compared to the first version circulated in January. Many of the faults highlighted by Foia4Italy, the network of 32 CSOs pushing an Italian Freedom of Information Act, were addressed and changed in the final version:

1. Administrative silence was abrogated: public bodies have the duty to state a reason for their refusal
2. Requesters don’t have to specify “precisely” what documents they are looking for
3. Inspection of documents and electronic copies are free: fees are limited to the cost of reproducing and sending the information
4. In case of refusal, requesters, beside administrative justice, can ask for an internal review to the “Responsabile per la Trasparenza” (transparency supervisor) and appeal to the “difensore civico”, the local ombudsman
5. Exceptions will be redefined and limited by guidelines written by the National Authority Against Corruption

While we praise the improvements, the law still has some handicaps, like the lack of sanctions for public bodies that illegitimately refuse to disclose documents and the absence of an ombudsman in many Italian regions. Moreover, some of the duties on proactive transparency were reduced or limited. The law will enter into force six months after being published in the official gazette: this period was considered necessary for public bodies to conform to the new provisions on transparency and for the draft of the guidelines on how to apply the exceptions. In the coming months the Foia4Italy network, will:

1. Monitor the drafting of the guidelines by the Anti Corruption Authority
2. Once in force, start a monitoring study of the implementation of the law
3. Continue its work of spreading the knowledge of this right to citizens, journalists and activists.

On 27 January two newspapers (Il Fatto Quotidiano and Valigia Blu) have published a leaked draft of the legislative decree on transparency and access to information examined last week at the Italian Council of Ministries. During the meeting the Government, as a matter of fact, has given preliminary approval and amended the text but hasn’t yet released the updated text of what was announced as “the Italian Freedom of Information Act”.

While in several occasions the Prime Minister Matteo Renzi and the Ministry of Public Administration Marianna Madia have promised “one of the most innovative legislation on transparency”, a first analysis of the draft shows that the “Italian FOIA” does not live up to expectations.

The decree does not overcome the rigid limitations set by the law 241/1990 requiring requesters to motivate their interest in information held by the State. Instead, the new text reforms the civic access introduced by the Transparency Decree 33/2013. This is more straightforward kind of access, allowing citizens to swiftly request documents that public bodies publish proactively. The new text extends civic access to “every kind of documents”.

However, in our opinion the reformed civic access will not guarantee a broad access to documents as it expands public officers possibility for refusing access.

More specifically the handicaps of the new draft are:
– lack of sanctions for public bodies that illegitimately refuse to disclose documents or do not reply to requests (administrative silence);
– appealing after first refusal remains a long and expensive process as it is possible only through administrative justice;
– several exceptions are too broad;
– the decree does not state that access to electronic documents is always free of charges;
– costs (e.g. for reproduction or shipping) are not clearly defined;

Before the final approval, the FOI decree will face other steps, including the reviews by the Council of State (“Consiglio di Stato”), the “Conferenza stato-Regioni” and Parliamentary commissions: however these authorities can only issue non binding advices and observations.

Foia4Italy stresses that if the text will not be modified, Italy will waste another occasion to become a more transparent country. Italy is currently ranked 97th out of 103 in the RTI Rating and, as showed by the new Corruption Perception Index published by Transparency International, it is perceived as the second most corrupted country in the EU after Bulgaria.

We ask Prime Minister Matteo Renzi to change the decree so that it can improve transparency and democratic participation.

FOIA4Italy also ask the Parliament to address these faults and support a reform of the text that guarantees the full right of access to documents.