Access to the building permit of the neighbor: legitimate if it serves to verify legal distances

The concrete case

In the sent. 4 June 2025, n. 1941, The Lombardy Tar, Milan, section II, he dealt with the legitimacy of a request for access to a building practiceconcerning a property built by the neighboringmotivated “in order to ascertain compliance with the building regulation relating to the legal distances between buildingsgiven that the knowledge of the relative documents, measures and documents must be considered essential for the defense (…) also pursuant to art. 24 paragraph 7 L.241/90“.

In this perspective, the neighbor required: “be able to access and extract a copypursuant to art. 22 and ss. L. n. 241/1990 and of Presidential Decree no. 184/2006, of the deeds, measures and documents, however called, relating to the building practice referred to in the application for a building permit hesitated with the issue of the building permit n. -Omissis- in favor of the lady -omissis-, and in particular:
– from the demand for building permit Presented by the lady -omissis-, relating to the building renovation project and expansion of volume of the building located in via -omissisis- n. XX, fg. XX Mappali XX of the NCEU of XX;
– of the text and planivolumetric documents attached to the aforementioned application for building permit;
– del Building permit n. -Omissis- released to the lady -omissis-;
– Of any further act and document connected to the building intervention identified above, including any building practices relating to design variants;
– from the End of work communication“.

The so -called defensive access

In the specific case, it was before oneso -called defensive access hypothesissince based on that particular “relationship existing between administrative document and needs of the instant to ‘cure’ or ‘defend’ its own legal interest“(1).

On this point, in general it should be reiterated that “defensive access transcends the procedural participatory dimension and the same logic of the transparency of the administrative function, being on the other hand functional to the need for the instant to “cure” (also in the pre-or extrajudicial headquarters) or to “defend” (in court) a legally relevant good-interest object of the subjective legal situation ‘final’ assertedly injured, that is, to satisfy the need to acquire, through the document by exhibiting, already in the extrajudicial headquarters and in the pre -procurement phase, the knowledge of the facts relevant for the purpose of composing a controversial resand, in the event of non -composition of the conflict, for the purposes of production in court by the party. Defensive access surpasses Therefore the evidentiary perses that concern the mere procedural relationship between the private and the public administration, or between private individuals in which a question of the exercise of power by an administrative authority is made, and includes all those appurtenances useful to demonstrate the constitutive, impedimental, modifier or extinctive facts of legal situations in general, regardless of the exercise of power in the individual case, and independently of the context within which interest within which interest legal can be ‘cured’ or ‘defended’, and therefore also outside the trial and also in a dispute between private individuals“(2).

In this perspective, the acts of which ostention was asked they allowed to acquirewith technical specificity, Elements of potential contrast between the absent building intervention and the legal sphere of the instant. It exists, and transpires from the same request for access, the necessary instrumentality between the required documents and the protected legal situation.

The opposition of the counter -interested party

In the face of this, theopposition manifested by the counter -interested party does not detect if it does not highlight specific and concrete reasons of impedimental confidentiality of the ostension of the requested documents.

In general, the administration is not sufficient to motivate the express refusal to the ostentation or allow its improvement through the mechanism referred to in art. 25, paragraph 4 (3), of law no. 241/90, on the only assumption of the opposition manifested by the counter -interested party. The legislation on access to the documents always puts back to the administration recipient of the access request the power to evaluate the validity of the request itselfalso in contrast with the opposition possibly manifested by third parties, and possibly allow access to the administration documents by omitting any personal data of third parties concerned.

The documentation for which the ostention is required, once entered the administration’s availability sphere, takes on a procedural relief. On this assumption, the principle of transparency and the principle of effectiveness of protection former art. 24 of the Constitution do not allow restrictions on the defensive access based on reasons of confidentiality or industrial or commercial secrecy generically set out, including third parties. In fact, for the purposes of balance between the right of defensive access pursuant to art. 24, paragraph 7, of law no. 241 of 1990 and the protection of confidentiality, operates, in the present case, the general criterion of necessity for the purposes of the treatment and defense of one’s own legal interestconsidered by the legislator tendentially prevalent on the protection of confidentiality.

THE’application of this principle must be adequately balanced when sensitive data are considered – racial and ethnic origin, religious beliefs, political opinions, adhesion to parties, unions, etc. – or very sensitive data – that is, the personal data suitable to reveal the state of health of the interested party; In these cases access would be allowed only to particular conditionsspecifically governed by art. 60 of Legislative Decree no. 196/2003. The judges, therefore, accepted the appeal against the illegitimate silence-dyniego to the access adopted by the Municipality.

Notes

(1) Council of State, section VI, sent. October 31, 2023, n. 9365.
(2) Council of State, section VI, sent. February 8, 2021 n. 1154.
(3) “4 In the event of a refusal of access, express or tacit, or of deferral of the same pursuant to article 24, paragraph 4, the applicant can appeal to the regional administrative court pursuant to paragraph 5, or to ask, in the same term and against the documents of the municipal, provincial and regional administrations, to the civic defender competent for territorial, where constituted, that the aforementioned determination is re -examined. If this body has not been established, the competence is attributed to the civic defender competent for the territorial area immediately higher. With regard to the acts of the central and peripheral administrations of the State, this request is sent to the Commission for access referred to in article 27 as well as at the resistant administration. The civic defender or the Commission for access are pronounced within thirty days from the presentation of the application. Fa gradually that this term expired, the appeal is understood rejected. If the civic defender or the Commission for access consider the refusal or deferral illegitimate, they inform the applicant and communicate it to the set authority. If this does not issue the confirmed provision motivated within thirty days from the receipt of the communication of the civic defender or the Commission, access is allowed. If the applicant the access has turned to the civic defender or to the Commission, the term referred to in paragraph 5 starts from the date of receipt, by the applicant, of the outcome of his request to the civic defender or to the Commission itself. If the access is denied or deferred for reasons relating to personal data that refer to third parties, the Commission provides, after hearing the Guarantor for the protection of personal data, which is pronounced within ten days from the request, after which the opinion is intended to be made. If a procedure referred to in section III of Chapter I of Title I of Part III of Legislative Decree 30 June 2003, n. 196, or referred to in articles 154, 157, 158, 159 and 160 of the same legislative decree n. 196 of 2003, relating to the public processing of personal data by a public administration, interests access to administrative documents, the guarantor for the protection of personal data asks for the opinion, compulsory and non -binding, of the Commission for access to administrative documents. The request for opinion suspends the deadline for pronunciation of the guarantor to the acquisition of the opinion, and in any case for no more than fifteen days. Decarso unnecessarily said term, the Guarantor adopts his decision.”