Facade of the Supreme Court.GETTY IMAGES

If state agencies were already required to provide information on the remuneration of senior civil servants, citizens now also have the right to know both the required qualifications and the salary of technical personnel in public administrations and state-owned enterprises , including universities, state agencies and public bodies. entities.

The Contentious-Administrative Chamber of the Supreme Court in a recent and relevant judgment (access here to its content) supports transparency and the right of citizens to know what qualifications are required and what they charge administrators, positions of trust or freely appointed “because there is a notable public interest in knowing the functioning of administrations, organizations and entities that make up the public sector, promoting the transparency that must govern their actions, which will allow exercising control over the way in which public funds are used and which “These are the criteria which led to the selection of certain positions”.

But the judgment of the High Court, whose president was Judge Diego Córdoba, goes further by recognizing the right of citizens to receive information “also regarding technical staff (even if they are not positions of trust or free designation) in public administrations or in public companies and organizations, since access to these positions with the necessary qualifications and the planned remuneration regime is part of control of these entities and, therefore, has a major public interest“.

Magistrates recognize that there is a public interest in knowing whether appointments and remuneration comply with current regulations excluding this for reasons of confidentiality or data protection the ability to obtain information about the workforce, qualifications or requirements required to fill a position and its remuneration is limited.

The events date back to June 2020, when the Council for Transparency and Good Governance partially granted a citizen’s demand for the Santa Cruz de Tenerife Port Authority send you information about annual compensation, official academic qualifications required to hold the position, duties performed, and the year the Operational Development Area Manager began working in the technical position.

The National Court (AN) accepted the appeal filed by the Santa Cruz Port Authority and considered that the information requested concerning the boss of the region It should not be granted as it is not a high-level management position accessible by discretionary appointment, with the individual interest of the public official concerned prevailing.

The Transparency Council, defended by the GC Legal firm, filed an appeal with the Supreme Court to establish a doctrine on the right of access to information concerning public officials, alleging that the greater the discretion in the appointment or the higher the level of confidence. the position held, higher requirements for transparency must correspond.

The Supreme Court supports the theses of the Transparency Council and establishes that access to information on salaries and required qualifications “occurs not only with regard to positions of trust and free designation but also with regard to concerns the technical staff who compose them” by favoring the right to be informed about respect for the private life and protection of the personal data of technicians, as defended by the port authority.

Elisa de la Noix, public law partner at GC Legal, underlines the importance of this judgment because “it is very favorable to the promotion of transparency in public sector entities”. It must be taken into account that this judicial resolution almost affects 2,300 public companies which employ nearly 141,000 workers, according to a study by the Foundation for Research on Law and Business (FIDE).

In addition to the active publicity of administrations through data collected in the general state budgets, the courts establish the right of access to public information which aims to strengthen and expand said active publicity and which is established for all people without major distinction. …as provided for in article 105 letter b of the Spanish Constitution, which recognizes “citizens” having access to administrative files and archives.

Although active publicity and the right to know are limited by the protection of personal data of administrations and public entities, the Supreme Court indicates that such limits must receive a strict, even restrictive interpretation“without accepting limitations which imply an unjustified and disproportionate infringement of the right of access to information”.

Information access requirements

The agreement between the Transparency Council and the Spanish Data Protection Agency (AEPD) on the obligations of public sector organizations and entities regarding access to information relating to jobs and remuneration of employees or civil servants establishes a series of requirements for providing this data.

Initially, access will be granted to information on the list of jobs or organic personnel of the employees or public officials occupying the positions.

Compared to their remuneration As a second requirement, given that the information contains personal data, the responsible body must carry out the weighing of interests in accordance with art. 15.3 of the transparency law.

As a general rule of weighting, it is established that anyone who occupies a special position of trust, of a high level of hierarchy or free designation, it must be understood that the public interest takes precedence over the rights to privacy or the protection of personal data. This is why information will be provided on the annual remuneration of temporary and particularly trusted advisory staff in the offices of ministers and secretaries of state, management staff of public entities and public companies, freely appointed staff when the public interest prevails. rights of people occupying positions at levels 30, 29 and 28, up to the deputy director general.

With the recent ruling of the High Court, the citizen’s right to know the remuneration and qualifications required also extends to technical staff of public administrations and state companies and entities.

Property Registrars and Productivity

As with freely appointed positions, magistrates recognize that there is a public interest in knowing whether the appointments and remuneration of technical staff “comply with the regulations in force, so that reasons of confidentiality do not exclude in a firstly the possibility of obtaining information on the personnel, the qualifications or requirements required to occupy a position and its remuneration.

The Supreme Court recalls that this criterion has been followed in several judgments concerning other groups.

In 2020, the right to receive information relating to the distribution of the variable part of productivity of agents of a delegation of the Tax Administration was recognized (access here to the sentence).

In 2022 the High Court (access here in judgment) recognized the public interest in obtaining information on the salary receipts of property registrars in relation to the management and payment of taxes that they carry out under the encomienda, while allowing the identification of the clerk who receives a sum of public money for the management of transferred taxes.

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