The nature of the right to access to public information

Abstract

For decades, the nature of the right of access to public information has been debated worldwide at the judicial and doctrinal level. At present, one can speak of an indisputable majority decantation towards its consideration as a fundamental right, be it autonomous, in the most recent fundamental rights letters, or as part of the content of freedom of information, in the most veteran ones. We will give an account of this in the first section, paying special attention to the conclusions drawn from international and European Law, since, as is known, according to article 10.2 of the Spanish Constitution, "the norms related to fundamental rights that the Constitution recognizes will be interpreted in accordance with the Universal Declaration of Human Rights and international agreements on the same subject ratified by Spain". We will pay special attention to the new jurisprudence on the subject emanating from the European Court of Human Rights.

In Spain, the debate, both at a political and doctrinal level, has been particularly intense, especially since the processing, approval and entry into force of Law 19/2013, of November 9, on transparency, access to public information and good governance. Our internal courts have also ruled on the matter.

This article reaches conclusions about the nature of the right of access and the difficulty of fitting in between the traditional profiles of freedom of information and the right of access to information in the technological society in which we live.