Access to public documents. Why is FOIA a disappointment for journalism

More benefits for citizens but the right of journalists to publish data without the consent of the interested parties seems at risk. A short essay by the lawyer Andrea Di Pietro

On the occasion of the seminar on “Freedom of the press and access to judicial and administrative sources” (see) organized by the Roman Press Association, in collaboration with Ossigeno per l’Informazione and the National Central Library, which took place on Tuesday 27 February in Rome in the Conference Hall of the same Library. The coordinator of the Free Legal Assistance Service of Ossigeno, Lawyer Andrea Di Pietro, has published this essay on the merits and defects of the new rules in force in Italy on the right of access to public administration documents.

Below is an excerpt from the short essay by lawyer Andrea Di Pietro

[…] The types of access to Public Administration documents are in total three: civic access to acts of the Public Administration whose publication is mandatory; “generalized” civic access to acts of the Public Administration whose publication is NOT mandatory; access to documentsin pursuant to Law 241/90.

The important novelty introduced by the FOIA is represented by the generalized civic access right which – in the same way as the non-generalized civic access right – is the right to widespread ownership, can be activated “by anyone” and not subject to any limitation to the subjective legitimacy of the applicant. To this is added an additional element, namely that the instance “does not require motivation”. In other words, this new type of civic access responds to the interests of the law to provide citizens (to “anyone”), regardless of the ownership of subjective legal situations, with access to data, documents and information held by public administrations. […]

The problem of balancing between the right to privacy and the right to control and understand the acts of the PA is crucial, as both are recognized both to individuals and to the community. With the FOIA we speak of widespread law because everyone is entitled to request a copy of administrative documents, although with respect to the individual request the subject has no right, no interest, no reason to ask. This seems paradoxical, because an imbalance in favor of the widespread law of access to the documents is perceivable as absolutely oversized compared to concrete needs, in the face of the useless exposure of the PA to an indefinite, and potentially huge, quantity of requests, such as to create an effective problem with the proper functioning of the administration. The LLG (Guidelines), which carry out the task of bringing this imbalance back into line, have had to intervene to mitigate this overwhelming power recognized by the citizens. The delicate relationship between FOIA and journalism, especially in relation to the protection of privacy, is the expense. […]

The Guidelines essentially involve, also for journalistic activities and therefore in the presence of the public interest in knowing the information, the figure of the counterparty to the request for access to the documents, or the subject whose data must be disclosed, giving him the potestative and unappealable power to prevent the disclosure of information that, according to the TU Privacy, would be released from the consent of the person concerned, or journalistic activity. […]

This passage is essential.

We know, in fact, that, according to the T.U. Privacy, the processing of personal data by the journalist does not provide the consent of the person concerned, if the treatment responds to public interest needs and is limited to an essential treatment, or that strictly necessary to satisfy the interest of the community to know some facts. […]

Instead, with the FOIA and the LLG seems to have been introduced a compression to the processing of personal data in the journalistic field, which is obtained by way of interpretation, given that in the new rules on transparency of the PA nothing is explicitly said in reference to the request for generalized access that comes from a journalist. […]

ADP (gt)