Transparencia y derecho de acceso a la información pública. Configuración y naturaleza constitucional

Abstract

This doctoral thesis focuses on the constitutional analysis of the principle of transparency and the right of access to public information. As this is a current constitutional topic, the research aims to examine the scope and configuration of transparency and access to public information in the context of the digital society. In this sense, transparency and the right of access to public information have not often been identified as objects of inquiry within the constitutional order. In addition, the inertia of the opacity of power has hindered their identification as transversal elements of the constitutional system of principles, values and rights. Furthermore, the academic works on freedom of information have given prominence to media professionals, thus confining the citizenry to a passive position in the reception of news within the framework of art. 20.1.d) of the Spanish Constitution (SC). Nevertheless, technological advances and the rise of the information society are shaping contemporary societies. A shift in the communication process is taking place, in which the active subject that informs is no longer only the media. Instead, citizens themselves participate actively in the communicative paradigm. Consequently, the role of a social watchdog – traditionally attributed to the media– is fragmented also to include an informing citizenry. In this context, transparency and the right to access public information have become particularly relevant for a pluralist democracy, as they enable greater control of political power by reinforcing the active position of the citizenry in the communication process. In this context, the research considers the role of transparency in the democratic welfare State and whether the right of access to public information should be considered a fundamental right. To provide an adequate answer to both questions, firstly, the doctoral thesis examines the state of the art in this field based on the existing body of legal scholarship and jurisprudence. The findings reveal that neither the legislator nor the case law of the Supreme Court (SC) or the Constitutional Court (CC) has explored in depth the legal nature of transparency and the right of access to public information. Indeed, according to the Spanish Law 19/2013, of 9 December, 2013, on Transparency, Access to Public Information and Corporate Governance (LTAIBG), access to public information does not constitute a fundamental right as it has been regulated in an ordinary law as a right of legal configuration ex art. 105 SC, thereby limiting the applicable constitutional guarantees. Nonetheless, a dynamic and evolving interpretation of rights in multilevel constitutionalism requires a different interpretation. Hence, the second part of the thesis focuses on the multilevel study of the right of access to public information. Based on this analysis, and in the light of the academic references on the subject, it argues that it is no longer possible to interpret the freedom of information in art. 20.1.d) SC without considering access to public information as a facet of the latter right. In order to justify the fundamental nature of the right of access to information as a facet of freedom of information, emphasis will be placed on the evolving interpretation of this constitutional right, especially by the European Court of Human Rights (ECtHR), and its impact on our legal system fundamentally through art. 10.2 SC.