FOIA
What is the Freedom of Information Act (FOIA)?
The acronym FOIA means the Freedom of Information Act considered as a legal act. It represents what is referred to as generalized civic access. It is an Anglo-Saxon tool - used by hundreds of countries - which guarantees to everyone the right of access to information held by the Public Administration, unless very specific exceptions. In Italy this right has been introduced by the legislative decree 97/2016 which amended the legislative decree 33/2013. Hence, the adjustment made in 2016 established the so-called generalized access. The FOIA was therefore introduced in addition to the access rights that previously existed since none of the preexisting ones were considered a right of access aiming at transparency. For instance, taking into consideration the access provided by law 241/90, it represented a purpose of access to participation in the administrative procedure: the above-mentioned access was therefore instrumental to the protection of other rights.
The legislator’s will was to not abrogate other preexisting access prerogatives was based on the will to spread the concept according to which the FOIA is a fundamental right, represented by the right to transparency (which can also be found in art. 42 of the CFR and art. 10 of the ECHR) in the relationship between institutions and civil society (businesses, Italian and foreign citizens), trying to encourage a public debate on collective interest issues, by requesting data held by the PA.
Therefore such a right, thanks to the FOIA, became a right in itself and no longer considered instrumental in order to protect other rights, as it was before. Furthermore, jurisprudence states that the new legal institutions attempt to promote a dialogue between the PA and applicant. The principle of transparency expressed by the FOIA is the foundation of representative democracy within the rule of law, but at the same time - by enabling user control over the work of the PA - a tool that ensures its smooth procedure.
The generalized civic access is part of a broader framework, which includes procedural access (provided by law 241/90) as well, characterized by the right to obtain information and data, if you have a specific interest. At the same time, the generalized civic access provided by the FOIA has the feature according to which the interest lies in the very fact go being part of the company, hence a specific interest is not necessarily required.
The other form of access is the so-called civic access (based on art. 5 par. 1, legislative decree no.33/2013), which allows accessing information that falls within the legal obligations of publication that has to be respected by the PA.
2. Case-law development and access criteria
Attention is now placed on the analysis of the jurisprudential development that the FOIA, and the applicable legislation, have made possible in the years following the introduction of this legal instrument.
Even in the work of ASGI, civic access proves to be a fundamental tool. Particularly interesting is to be considered, for this purpose, the jurisprudence of the Council of State on the reviewable way of all administrative acts and acts of third parties acquired by the PA, with particular attention to the absolute limit of state secrecy, to which reference will be made below.
The Freedom of Information Act has the peculiarity of being a legal instrument that physiologically protects, as previously emphasized, the Right to Transparency, which through the introduction of the institution finally receives regulatory recognition.
An example of a jurisprudential ruling in this regard can be found in Sentence no. 10/2020 of the Plenary Assembly of the Council of State, which stated for the first time the nature of the right to transparency and, through it, the right of access as a fundamental right generalized. The FOIA is therefore a versatile tool, placed to oversee a continuous process of information and formation of public opinion. The principle of transparency, in its normative and jurisprudential formulation is the foundation of the representative democracy of the rule of law, but, at the same time, the FOIA - allowing generalized access - also has the function of widespread control of public opinion on the activity of the PA.
The interest in the functioning of the FOIA is, therefore, both a priority of civil society as a whole, as its right, but also of the Public Administration, since it is all the more well functioning the more transparent it is. The Council of State argues, in the aforementioned ruling, that "black holes in transparency cannot exist". The FOIA is in fact characterized by preferential protection of cognitive interest. The exceptions are also subject to legal reservations.
The FOIA is, however, subject to abuse, but the interpretation of the P.A. it is also guided by case law such as the one examined above. Relevant tendency, derived from this jurisprudence, is to examine the requests even if of generic content. This address is also dictated by the need to establish a cooperative and collaborative dialogue with applicants. To protect the good performance, in fact, examination in these requests is needed even if, then, the examination should lead to a denial (for a request that is too expensive or difficult to understand, for example) and the consequent, alleged illegality of the request. This profile is based on the consideration that, if access requests could be presented only by professionals, or only by those who already know what data and documents are held by the PA, there would be frustration or inadmissible discrimination, in the right to transparency, between "who knows and who does not know". Instead, from this point of view, the right to transparency belongs to everyone in equal measure. It is the Public Administration itself, therefore, if necessary, to make up for any shortcomings of the applicants. This approach is revolutionary in our legal system.
On the other hand, the P.A. must not ask the applicant the reason for demanding access to certain information. Collaborative dialogue must never lead to the so-called functionalization of the right of access, which also existed in some judgments, but which is gradually losing weight, both thanks to doctrine and to the latest guidelines of jurisprudence.
The last point to which the Plenary Assembly (Council of State, sentence number 10/2020) aims at is that the right of access must affect the documents held by the Public Administrations from every relevant point of view. It is therefore necessary to avoid the formation of factual secrets that can reveal and represent legal secrets. In this regard, the resolution 1309/2016 (concerning the procedure that the PA must follow in justifying the rejection of a request for generalized civic access because of the presence of an access limit), containing the ANAC guidelines, indicates that the form must be substance and not mere form. It must cover and document, in the most stringent way possible, the prejudice that would be suffered by the public and private interests protected. Finally, it should be noted how the Constitutional Court, in the sentence 20/2019, defined the FOIA as an instrument placed at the service not only of those who take its place, and, therefore, not only to satisfy the specific request but also the interest of the Public Administration in achieving the proper functioning of the PA (provided for by Article 97 of the Constitution).
The real battle, however, for FOIA, takes place on the field of limits. If, on the one hand, generalized access applies to all acts, the law also establishes limits.
When can the Public Administration reject an access request and what should be its motivation?
The right to generalized civic access, provided by the Freedom of Information Act, is certainly limited. In this regard, there are two types of limits that can be applied:
1. An ABSOLUTE LIMIT, indicated by the law, in presence of which it is sufficient that the P.A. reject the request for civic access, indicating the existence of this limit as a motivation. Examples of absolute limits are state secrecy, banking secrecy or even statistical secrecy. In all these cases, in fact, there is a law that identifies the specific limit beyond which no citizen is entitled to go. In the case of the State Secret, in particular, no motivation
is required in the refusal provision. It is sufficient for the Public Administration to demonstrate the existence of that absolute limit, or give notice to the applicant citizen.
2. Secondly, Article 5 of Legislative Decree 33/2013 indicates the existence of RELATIVE LIMITS, existing when the disclosure of a certain document or information or deed may prejudice an interest of the State. It is not certain that a State interest is always endangered by publishing, however, so there is no law that provides a prohibition on the disclosure of that specific information in any case. Instead, it will be the P.A. to identify the existence, case by case, of a specific relative limit, because the recurrence and enforceability of these limits by the Public Administration depends on the concrete situation. An example of the relative limits opposition may occur when the disclosure of a certain document could harm international relations, public defense, national security. The Public Administration, based on the request that citizen makes, can verify if there is a concrete risk for that specific interest. The main difference between a relative limit and an absolute limit lies precisely in the
motivational burden that the Public Administration has when it wants to avoid the knowledge of that document from the citizen. The ANAC guidelines have intervened in this field precisely to identify in a very specific way what should be the logical and motivational process that the P.A. must follow in order to establish if the motivation on the rejection is sufficiently congruent and complete. This is because there is always a citizen's right to knowledge, which must be satisfied and which can only be limited in special and specific cases. In the case of relative limits, an adequate and complete motivation is required.
3. The relationship between FOIA and Italian migration policy
For what directly concerns the Italian state and the migration policy pursued by the country, it is necessary to refer, even before the Legislative Decree of 25 May 2016 n.97, to the so-called Transparency Decree (Legislative Decree no. 33 of 14 March 2013, Reorganization of the regulations concerning the right of civic access and the obligations of publicity, transparency and dissemination of information by public administrations). In fact, it attempted to introduce in Italy a transparency tool aimed at all associates that could grant to each individual the opportunity to know the full content of administrative acts. Their knowledge, as provided by Article 2 of the legislation in question, must be exercised "in compliance with the limits relating to the protection of public and private legally relevant interests", therefore only with reference to those documents of the public administration for which there was an obligation to publish.
The obligation to publish, however, has been established even before the Law of 7 August 1990 n. 241 also called New rules on administrative procedure and right of access to administrative documents. In fact, in 1984 legislation introduced an obligation to publish not only international treaties but also any contractual obligation that would oblige Italy with third States. The action computed in 2013 introduces not only an extension of the obligation to publish but also symbolizes a reaction of the legal system in case of transgression. In this regard, Italy has introduced a procedure, from art. 116 of the code of the administrative process, with which the non-publication in which the exhibition of that deed with an attached publication obligation can be considered illegitimate.
In conclusion, the FOIA certainly represented an extension of the right to transparency and affirmed, in a powerful way, this fundamental right. The use of this rule by citizens is not so huge at the moment (also because the first users of generalized access abroad are even companies today ). It is therefore important to ask whether this is a civil society willing to use the FOIA and to invoke it in litigation, with the aim of enforcing this legal recognition.