Access to the building documentation in the separation between spouses: it is legitimate

Documentary access

Art. 24 of law no. 241/1990, in regulating cases of exclusion from the right of access, provides, in paragraph 7, that “However, it must be guaranteed to applicants access to administrative documents whose knowledge is necessary to treat or to defend their legal interests. In the case of documents containing sensitive and judicial dataaccess is allowed within the limits in which it is strictly indispensable and within the terms provided for by article 60 of Legislative Decree 30 June 2003, n. 196, in the case of data suitable to reveal the state of health and sexual life“.

The system therefore recognizes a pre -eminent protection for defensional accessthat is, to the preparatory documentary access to the best protection of the reasons of the instant, given that, by express regulatory provision, the interest pursued also prevails over any opposing interests.
Indeed, the legislator has operated in this sense AB origin An assessment of the prevalence of the ostental interest, where precisely connected to the need to take care of or defend its legal interests, with respect to the interests, public and private, possibly antagonists, thus legitimizing access by reason of pre -eminence, on a hierarchical scale of values, of the defense defense needs, finding this foundation in the Constitutional principles on the right to defense in court contemplated by art. 24 of the Constitution, of which defensive access is a corollary (1).

The absolute pre -eminence recognized by the legislator to the right of access for defensive needs also implies that the same is granted regardless of the validityon the merits, of the reasons to be “cure” or “defend”as well as by the relevance and relevance for the purposes of the judgment of the documents identified by the interested party, whose concrete assessment must be essentially appreciated in the context of the relative judgment of merit, since the same is not the remittance to the Administration or the judge made in the access judgment pursuant to art. 116 cpa The latter, indeed, must not carry out ex ante no assessment on the admissibility, influence or decisiveness of the document required in the possible judgment established or to be established (2).

Confidentiality

The aforementioned provision confers prevalence to access having a defensive character also with respect to the reasons for confidentiality. In fact, the defensive needs attributable to the effectiveness of the protection referred to in art. 24 of the Constitution must be considered, as a rule, prevalent compared to those of confidentiality, even if the application of this principle must be adequately balanced when they are considered sensitive data (racial and ethnic origin, religious beliefs, political opinions, adhesion to parties, unions, etc.) or very sensitive data (i.e. the personal data suitable to reveal the state of health of the interested party); In these cases access is allowed only with particular conditionsspecifically governed by art. 60 (3) of Legislative Decree no. 196/2003.

Furthermore, according to jurisprudence (4), any opposition of the counter -interesteds does not bind the administrationwhich must grant access when it is documents that are not subtracted by the law and there are no confidentiality profiles to be protected, not being able to legitimately assume a public body as the only foundation of the refusal of access to the documents the lack of consent by third parties, given that the legislation on access to the documents, far from making the counter -interested abs Request for accessing the power to evaluate the validity of the request itself, also in contrast with the opposition possibly manifested by third parties.

The direct and current direct interest

From another point of view, the jurisprudence has clarified that the legitimacy to request access to administrative documents presupposes that the instant first of all “A direct, concrete and current interest, corresponding to a legally protected situation connected to the document to which access is requested“(5). These are an interest connected instrumentally to the needs of the private individual, so the documents subject to the ostensive application must be suitable to explain effects, directly or indirectly, against the applicant or must, however, be relevant to the specific reasons exposed to support the same application (6).

The connection link just described must result from the motivation set out in the request for accessin which anon -generic list of the administrative documents – already existing and formed – which are the subject (7).

The concrete case

By applying the aforementioned hermeneutic coordinates to the case in question, the judges considered The interest in accessing the spouse to separate who had adequately described the reasons for his request related torequirement of regulation of economic relationships with the other spousewhich constitutes exhaustive justification With respect to the defensive needs proposed and the instrumentality of the documentation, access to the exercise of its right of defense is requested.

Nor, as well as by the precise jurisprudence, it is up to the Administration any evaluation regarding the relevance of the documents required for defensive purposes, having to only evaluate the relevance of the documents with respect to the specific regions exposed to support the application for access. It must also be specified that the request of the applicant refers to acts of a specific procedure, mostly of constructionwhich do not fall among those subtracted to access pursuant to art. 24 of law no. 241/1990 and compared to which there are not even specific third party confidentiality needs. Moreover, the application for access had no exploratory character and was not aimed at carrying out generalized control over the administration’s activity, so, even from this point of view, there were no reasons, according to the judges, to deny access.

Notes

(1) See, Trga Trentino-Alto Adige, Trento, section I, 9 February 2024, n. 20)
(2) See sentence mentioned above as well as Council of State., Ad. Pl., Sent. March 18, 2021, n. 4; In terms, Trga Trentino Alto Adige, Trento, sent. June 8, 2023, n. 110 and Council of State, section VI, sent. May 19, 2023, n. 5000.
(3) 1.
(4) Former Multis: Tar Lombardia, Milan, section II, sent. July 30, 2021, n. 1364; Tar Campania, Salerno, section I, sent. 22 July 2019, n. 1372; Trga Trentino Alto Adige, Trento, sent. 13 July 2023, n. 125 and sent. April 28, 2022, n. 87.
(5) See art. 22, paragraph 1, lett. b) of law no. 241/1990.
(6) See Council of State, section V, sent. 4 December 2023, n. 10498 and sent. May 21, 2020, n. 3212.
(7) TAR Lombardy, Milan, section IV, sent. 12 July 2023, n. 1790.