Building file, when neighbors can access the documents

Judgment regarding access

Again in principle, the judgment regarding access, even if it acts as an appeal in the phase of filing the appeal, as it is directed against the denial order or against the silence – rejection formed on the relevant request, essentially aims to ascertain the existence or otherwise of the right to access in the particular situation alleged in the judgment in light of the regulatory parameters, regardless of the correctness or otherwise of the reasons given by the Administration to justify the denial; the proposed judgment, pursuant to art. 116 cpa, challenging the denial has as its object the verification of the right or otherwise of the right itself, rather than the verification of the existence or otherwise of defects in the legitimacy of the contested denial.

The judge can, therefore, order the production of the requested documents, thus taking the place of the Administration and ordering a facere, only if the conditions exist, which, therefore, implies that, even beyond the specific defects and the specific motivation given in the administrative act denying access, the judge must verify whether the conditions for access exist or not, and can also deny for reasons other than those indicated by the administrative order(2).

Conditions to be met in access requests

Law no. 241/990, in the articles. 22 and following, is rigorous in defining the unavoidable conditions that must necessarily be met. The legitimacy to request access to administrative documents, in fact, presupposes the demonstration that the documents object of the request are capable of explaining direct or indirect effects in the legal sphere of the applicant; the position to be protected must in any case be linked to the documents covered by the access request; the instrumentality relationship just described must then appear from the motivation stated in the access request; a request which cannot therefore be reduced to a reference to mere generic defensive needs, but which must provide proof of the existence of a specific interest in knowledge of the documentation itself and of the logical-functional correlation between the knowledge of the documents and the protection of the legal position of the person exercising the right, making it possible to understand the coherence of this interest with the purposes for which the right of access is preordained (3).

All this inevitably implies that the access request must have a specific or at least determinable object, as it cannot be generic and must, on the other hand, refer to specific documents, without the need for data processing by the recipient of the request(4).

The concrete case: the sufficiency of the vicinitas requirement

In the sentence 5 February 2026, n. 220, the TAR Campania, Salerno, sec. II, the object of the judges’ assessment was the silence maintained by the Municipality in the face of an access request presented by the neighbors and aimed at examining and extracting a copy of the building file relating to the adjacent property; as the reason for the demonstration, the applicants had put forward reasons related to damages which they said were deriving from the execution of works carried out on the neighboring building and whose legitimizing qualifications, at this point, they intended to verify.

According to the judges, in the specific case, the legally crystallized conditions for obtaining access existed, considering that, for the purposes of exercising the right of access in construction matters and the configurability of the direct, concrete and current interest required by the art. 22 of law no. 241 of 1990 to legitimize the request for access to the documents (distinct from the interest required for the challenge of building permits for the purposes of their cancellation), the requirement of proximitywhich exists in the hands of the neighbor but also of the front-end and those who find themselves in a situation of stable connection with the area in which the building is located, who are directly protected by the limits imposed on the exercise of the ius aedificandiand who therefore have a different position compared to others belonging to the community in terms of respecting these limits (5).

The neighbors, therefore, have a clear legitimation, given the proximity relationship with the building for which they are requesting the qualifications legitimizing the construction and are, therefore, holders of a legally relevant situation for the presentation of all the requested documents: in the specific case analyzed by the Salerno judges, moreover, their interest in a need for compensation protection and in any case for verification had been made clear which, as referred to in the request for access, appeared in abstract plausible (6).

Notes

(1) Council of State, sec. V, sent. 5 August 2020, n. 4930.
(2) TAR Campania, Naples, sec. VI, sentence. 3 March 2016, n. 1165.
(3) TAR Lazio, Rome, sec. III, sen. 1 August 2018, n. 8584.
(4) TAR Emilia-Romagna, Parma, sec. I, heard. 3 November 2020, n. 189.
(5) TAR Campania, Naples, sec. III, sentence. 2 January 2025, n. 7.
(6) For a similar case, see TAR Emilia-Romagna, Parma, sec. I, heard. 19 September 2025, n. 378: “According to the prevailing jurisprudence regarding access to administrative documents, the person requesting the exhibition of documents is not required to demonstrate the damage to a legal position, but the potential usefulness that can be derived from knowledge of the documents whose exhibition is requested.
Furthermore, the right of access is not only functional to judicial protection, but also allows private individuals to direct their behavior on a substantive level to take care of or defend their own legal interests, therefore it can be exercised in connection with a legally relevant interest – even in the cases in which a judgment has not been initiated during which the acquired documents may be used – precisely in order to evaluate the opportunity of its establishment (see State Council, Section V, 17 May 2023 no. 4927).
Having said this in general, it should be remembered that, according to consolidated jurisprudence, the vicinitas requirement in itself attributes a direct, concrete and current interest in knowing the deeds and documents of the authorization procedure relating to the neighbour’s building activities, in order to verify the legitimacy of the title and the conformity of the works to the same, so that the owner of the land next to or adjacent to the one on which new building works are carried out has the right of access to all the authorization documents when he asserts the interest in ascertaining compliance with the provisions urban-building planning and current legislation, and this position, as it is qualified and differentiated and not merely emulative or pre-ordained for a generalized control of administrative action, is sufficient, pursuant to art. 22 of law no. 241 of 1990, to legitimize the right of access to the requested administrative documentation (see TAR Sicily, Palermo, Section IV, 1 April 2025 no. 716; TAR Veneto, Section IV, 28 February 2025 no. 283; TAR Lombardy, Milan, Section II, 10 February 2025 no. 447; TAR Umbria 2 October 2024 no. 678).
Furthermore, it has been repeatedly noted that, for the purposes of exercising the right of access in construction matters and the configurability of the direct, concrete and current interest required by the art. 22 of law no. 241 of 1990, to legitimize the request for the production of documents – distinct from the interest required for the challenge of building permits for the purposes of their cancellation – the requirement of vicinitas is sufficient, which exists in the hands of the neighbor, but also of the frontier and of all those who find themselves in a situation of stable connection with the area in which the building is located (therefore the third-party owners or qualified holders of neighboring areas or buildings or even residents therein or having other reason for attendance), who are directly protected by the limits imposed on the exercise of the ius aedificandi and have, consequently, a differentiated position compared to other members of the community with regard to the observance of these limits (see TAR Tuscany, Section III, order 20 June 2025 n. 1123; TAR Lazio, Rome, Section II, 25 March 2025 n. 6052; TAR Campania, Section VIII, order No. 1745; TAR Sicily, Section IV, 28 January 2025”; consequently, as stated by the Parma judges, the tacit denial of an access request presented by the neighbor and concerning the building permit issued to the neighboring owner is illegitimate.