La Law 19/2013 of 9 December on Transparency, Access to Public Information and Good Governance It establishes the basic legal framework for transparency and good governance.

As evidenced in its explanatory statement, this law has a triple scope:

• increase and strengthen transparency in public activity – which is articulated through active publicity obligations for all administrations and public bodies,
• recognise and ensure access to information – regulated as a right with a broad subjective and objective scope – and
• Establish the obligations of good governance that must be fulfilled by public officials as well as the legal consequences derived from their non-compliance.

The seventh final provision establishes that the Government, within the scope of its competences, may dictate as many provisions as are necessary for the implementation and development of the provisions of this Law. This provision also provided that the Council of Ministers would approve a Royal Decree approving the Organic Statute of the Council of Transparency and Good Governance.

In the development of these forecasts, Royal Decree 919/2014, of 31 October, was approved by the Statute of the Council of Transparency and Good Governance.

Likewise, at the end of 2014, the processing of a draft regulation of partial development of Law 19/2013 began that lasted during 2015 and was submitted to a report of the Spanish Agency for Data Protection, the Council of Transparency and Good Government and non-profit associations and foundations whose social purpose was related to transparency: Transparency International, Acces Info Europe and Fundación Civio.

However, as a result of the holding of general elections in 2015 and 2016 and the extension of the period of government in office in 2016, the processing of this project was paralysed.

The approval of a royal decree to develop the Transparency, Access to Public Information and Good Governance Act is intended to complete the legal framework that facilitates compliance with Title I of the law on “Transparency of public activity”.

With the approval of the regulation, the intention is to increase legal certainty, fill possible regulatory gaps, specify procedures and concepts and ensure a uniform application of the law by the subjects obliged, always in order to guarantee the greatest possible transparency in the actions of the Public Administration.

Since the entry into force of Title I of Law 19/2013, in December 2014, it has become clear the need to develop aspects of the law by regulatory means, both with regard to the obligations of active publicity and in relation to the exercise of the right of access to public information.

The approval of a real development decree of Law 19/2913 has also been a matter widely demanded by civil society, having motivated the adoption of a regulatory development commitment in this regard, in the Third Open Government Plan 2017-2019, which Spain has approved within the framework of the Alliance for Open Government in June 2017 (commitment 3.5 of the Third Plan)

The future rule would aim to develop the first title “Transparency of public activity” of Law 19/2013, of 9 December with the following objectives:

• Clarify the scope of the obligations provided for in the norm and facilitate its compliance always in the interests of ensuring the greatest possible transparency in the action of the Public Administration and facilitating the access of stakeholders to public information in an effective manner
• Specify and specify deadlines, procedures, to avoid unnecessary delays, gaps or interpretative doubts.
• To specify indeterminate legal concepts in order to ensure a restrictive and always justified and proportionate application of the causes of inadmissibility or limits to the exercise of the right of access as advocated by Law 19/2013 itself.
• Adapt the regulation to the jurisprudence and criteria of the Council of Transparency and Good Governance and the Spanish Data Protection Agency, among others.
• Ensure the application of the principles of good regulation provided for in article 129 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations: necessity, effectiveness, proportionality, legal certainty, transparency and efficiency.

The following alternatives have been discussed:

Alternative 1: Continue with the processing of the draft regulation initiated between 2014 and 2015

Regardless of the background and reports already received during the processing of a previous draft, it has been considered advisable to process the rule with the greatest possible debate, carrying out this prior consultation in accordance with the provisions of article 133 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations and subsequently submitting the project to public information, through the website of the Ministry of Finance and Public Function and the Transparency Portal.

Likewise, the time that has elapsed, the experience acquired in the application of the rule, the adoption of criteria by the Council of Transparency and Good Governance and by the Spanish Agency for Data Protection, make it necessary to redraft the previously prepared draft that, necessarily, will have to be submitted again to the report of the different entities affected and interested.

For this reason, it is considered more appropriate to start again the processing of the Royal Decree project.

Alternative 2: Wait for the possible modification of Law 19/2013, of 9 December.

Currently, a comprehensive law to combat corruption and protect whistleblowers is being processed in Parliament.

This proposal provides for the amendment of Law 19/2013, of 9 December, on Transparency, Access to Public Information and Good Governance.

In this regard, one possible alternative would be to await the processing of such a proposed law in order to ensure that future regulatory development is fully in line with possible new developments in the law.

However, the time elapsed without the regulatory development of the law, makes it advisable not to delay any longer the processing of the draft royal decree, without prejudice to the fact that the regulatory norm must be adapted to the legislative novelties that are finally approved.

Alternative 3: Do not proceed to regulatory development

Law 19/2013, of December 9, has been applied by the subjects obliged without regulatory development, taking into account the provisions of the same as well as the criteria adopted by the Council of Transparency and Good Government.

However, for reasons of legal certainty, it is advisable to proceed with the aforementioned development in order to ensure a uniform and effective application of the law.

On the other hand, the regulatory development of the law has been widely demanded by civil society.

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On September 15, 2017, the deadline for making contributions ended definitively.