Defensive Document Access and Building Permits: The Specific Case
In the recent sentence of 4 September 2024, n. 7394, the Council of State, section IV, expressed its opinion on the request for defensive access to some building permits.
In this case, the interested party had documented the existence of a direct interest in formulating the request for access, indicating it in the “concrete and current evidentiary and defensive needs … relating to the actions” necessary to support the objections raised with the appeal to the Council of State concerning the denial of cancellation of a SCIA by a third party. And in fact, the interested party had appealed to the Council of State against a first-instance ruling and, in relation to this dispute, had expressed its interest in acquiring the administrative documentation, where existing, underlying a specific passage of the ruling in which the SCIA being accessed was referred to.
In particular, the applicant had represented:
- the need for acquire building permits on the basis of which some of the third’s works were supposedly created;
- the need to acquire such documents because necessary for the care and protection of your interests in relation to a pending appeal;
- the circumstance that, for the works which are the object of the contested SCIA, the Municipality’s intervention in self-defense had already been requested.
In this perspective, the exercise of the right of defensive access, even if it does not require the current pendency of a dispute (before a civil judge or another judge), finds in this a useful element for evaluating the concreteness and topicality of the interest legitimising the request for access. The only interest legitimizing defensive access is, in fact, that which corresponds (as in the case in question) in a direct, concrete and current way to the treatment in court of such predetermined cases, in a strictly defensive key.
The link to the document for which you are requesting access
And here lies the second of the parameters underlying the institution of access, namely the one concerning the so-called “link to the document for which access is requested”, in order to highlight directly and unequivocally the instrumental connection that must concern the subjective situation final to the document whose display is requested, and for the obtaining of which the defensive access, as an instrumental situation, acts as an intermediary. This requirement is satisfied, on a procedural level, by the subsequent art. 25, paragraph 2, of Law no. 241/1990, pursuant to which the request for access to documents must be motivated.
The applicant, in her request for access and in subsequent documents, had represented and motivated the evidentiary and defensive needs relating to a judgment already pendingit being understood that the situation legitimising access is autonomous and distinct from that legitimising the judicial challenge (in particular, from the annulment action in the administrative process) and from the relative outcome, given that the defensive access constitutes, on a substantial level, only an instrumental situation for the protection of a final legal situation.
For this reason, the appellant having proven a direct, concrete and current interest in accessas well as having motivated its request for defensive needs and having also attached the instrumental connection of the request itself with the substantial position to be protected in court, it follows that theobligation of the technical office to check the access request in any case, in a positive sense (where the building permits in question exist) or in a negative sense (where such titles do not exist). With the consequence that the refusal by the Municipality due to the alleged lateness of the request for access is completely irrelevant: the right of access, due to its instrumental nature which must concern the final subjective situation underlying the document whose display is requested, does not serve any term (decadental).
The reiteration of the request
The access request can also always be reiterated in the presence of new facts (subsequent or not) not represented in the original request or in the face of a different presentation of the legally relevant interest: these circumstances exclude the possibility of an abuse of the right.
The assessment of the usefulness or otherwise of the requested documents for the purposes of defending the applicant’s interests
According to case law (TAR Puglia, Bari, section I, judgment of 14 August 2023, no. 1077; Council of State, section IV, judgment of 3 September 2014, no. 4493; TAR Puglia, Bari, section III, judgment of 19 December 2014, no. 1603), it is undisputed that the Administration is not required to verify the actual usefulness of the documents in view of the defence of the applicant’s reasons nor, much less, the defensive strategy articulated by the same, but only one abstract evaluation of the defensive need highlighted.
The non-existence of the documents to which access is requested
If the requested documentation does not exist in whole or in part, as per constant jurisprudence, the administration is required to issue a specific certificate of this circumstance (TAR Campania, Naples, section VI, sentence 23 September 2022, n. 5901).
