Access to building documents: what should the Municipality do if the documents are untraceable?

The principles regarding untraceable documents subject to a request for access

If the Municipality declares that the documents have not been found following careful searches, it must give an account of the concrete research activities carried out, the methods of conservation of the documents, the offices involved and the specific reasons for the failure to find them(1).

Once the private individual has promptly indicated the category of documents requested and has provided suitable elements to connect it to the institutional competences of the institution, the duty falls on the administration, in compliance with the principle of loyal collaboration, to formally assume the responsibility of declaring the failure to possess or safeguard the documents, not in an apodictic manner, but with a suitable confirmation to dispel any reasonable doubt on the actual existence or otherwise of the documentation in its archives(2).

In particular, in order to demonstrate the objective impossibility of allowing the right of access and, therefore, of escaping the obligations typically incumbent on the administration based on the primary legislation on access, the mere and unproven statement regarding the unavailability of the documents is not sufficient, it is up to the Administration receiving the access request to indicate, under its own responsibility, the non-existent or unavailable documents which it is not able to exhibit, with the obligation to give a detailed account of the concrete reasons for this impossibility and as a mere affirmation of their non-existence in the defense writings(3) or in simple internal notes is not sufficient.

In similar situations, the Administration is in fact required to carry out prompt searches with the utmost accuracy and diligence to find the documents requested to be viewed and to give an account to the private individual of the reasons for the impossibility of reconstructing the missing documents, of any responsibilities connected to this lack (loss, theft, etc.) and of the adoption of archival documents that ascertain the definitive loss/unavailability of the documents themselves; This essentially results in the illegitimacy of a mere denial, or a denial of access based solely on the declaration of unavailability of the documents covered by the request, without indicating the methods of conservation of the documents invoked for inspection, the reasons for their loss and the searches actually carried out (4).

A recent concrete case: a defect in the investigation was detected

In the aforementioned sentence. n. 4602/2026, the judges considered that the following principles were not respected when faced with a request for access by a co-owner of a property, received by inheritance, to relevant building documentation dating back to 1951 (specifically, a clearance, a report from the health officer and the certificate of habitability), for the purposes of reconstructing the relevant urban-building situation.

The Municipality had expressed a denial due to the unavailability of the documentation, limiting itself to referring to searches in the municipal archives and the land registry service, as well as stating that the address indicated relating to the property had never existed in the municipal territory, just as there were no building documents registered in the name of the predecessor of the parent (original owner of the property) of the applicant. However, according to the judges, in the specific case there was no analytical description of the registers actually consulted, of the time span of the searches, of the checks carried out with regard to the assignors indicated by the applicant, of the specific archival reasons for which the existence of the requested 1951 certificate was definitively excluded and of the preparatory documents referred to therein.

The deficiency took on all the greater importance since the applicant, already during the procedural stage, had represented in a detailed manner that the document sought did not appear among the files registered in the municipality’s IT portal and that the search should have been carried out “for example by directly consulting the municipal archive“. Furthermore, the Regional Defender, to whom the applicant had turned, had also urged the Municipality to provide feedback regarding the retrieval “also through other channelsConsequently, the administration was specifically required to provide an in-depth investigation that was effective and not merely reiterative of the previous negative response.

A further critical element: the contradictory behavior of the municipal technical office

Among other things, the position taken by the municipal technical office was internally contradictory:
– on the one hand, it had declared the non-existence of the certificate of habitability and the health report;
– on the other hand, it had not considered that the applicant, in support of the application, had presented the original of the “authorisation for the habitation of buildings” issued in 1951.

In the presence of this last element, according to the judges, the office could not limit itself to opposing a conclusive formula of “non-existence”, but should have clarified, with strengthened investigation, whether or not the document produced by the private individual found confirmation in the municipal registers, also through indirect registrations of the release, protocols, marginal notes, repertoires, habitability registers or other related documentary indices.

This attached document indicated the street and house number where the property was located, as well as the birth certificate, issued by the same municipality, presented by the applicant.
Consequently, the office’s statement regarding the deemed non-existence of the address, formulated in a peremptory manner and without any indication of the toponymic or registry sources consulted, was denied for tabulas.

The office, not having denied the material authenticity of the document, had expressed a declaration of non-existence evidently without adequate investigation. In conclusion, the judges considered the communication of the non-existence of the requested documentation illegitimate due to a lack of investigation and motivation.

Notes

(1) TAR Campania, Naples, sec. IV, sentence. 28 November 2025, n. 7726; TAR Calabria, Catanzaro, section. I, heard. 29 June 2023, n. 952; TAR Lazio, Rome, section. IIb, sentence. 2 March 2022, n. 2485; see, for example, TAR Umbria, sec. I, heard. 16 June 2025, n. 549, according to which “The Administration is, therefore, required to carry out prompt searches with the utmost accuracy and diligence to find the documents requested to be viewed and to give an account to the private individual of the reasons for the impossibility of reconstructing the missing documents, of any responsibilities connected to this lack (loss, theft, etc.) and of the adoption of archival documents that ascertain the definitive loss/unavailability of the documents themselves”.
(2) Council of State, sec. VI, ord. February 25, 2022, n. 904.
(3) TAR Lombardy, Milan, sec. III, sentence. 11 October 2019, n. 2131.
(4) TAR Calabria, Catanzaro, sec. I, heard. 29 June 2023, n. 952.