Defensive access
Paragraph 7 of the art. 24 provides that “However, applicants must be guaranteed access to administrative documents whose knowledge is necessary to take care of or defend their legal interests. In the case of documents containing sensitive and judicial data, access is permitted to the extent that it is strictly indispensable and within the terms established by article 60 of Legislative Decree no. 30 June 2003. 196, in case of data suitable for revealing the state of health and sexual life”.
This last provision, therefore, deals with what is defined as defensive access, i.e. the access with respect to which also the protection of particular data, according to the name currently contained in the art. 9 of GDPR 679 of 2016, and of judicial data (art. 10 GDPR 679 of 2016), under certain conditions, can be considered recessive.
With specific reference to this access, the Plenary Meeting of 25 September 2020, n. 19, clarified that “defensive access is constructed as an autonomous ostensive case, characterized (on the active side) by an expansive vision capable of overcoming the ordinary preclusions that stand in the way of knowing administrative acts; and characterized (in terms of burdens) by a stringent limitation, namely that of having to demonstrate the ‘necessity’ of knowledge of the act or its ‘strict indispensability’, in cases where access concerns sensitive or judicial data… knowledge of the act is not intended to allow the private individual to participate in the exercise of public power in a more ‘civilly’ responsible sense, i.e. to contribute to making the exercise of power shared, transparent and impartial, but represents the means for the care and defense of one’s own legal interests”.
Again with reference to this form of access, the Plenary Assembly highlighted that “For the purposes of recognizing the legitimizing situation, the requirement of the current pending legal process is not positively required. In other words, starting from the absence of a regulatory provision that establishes this, it is possible to draw the conviction that the pendency of a dispute (before the civil judge or another judge) can constitute, among others, a useful element for evaluating the concreteness and actuality of the interest legitimizing the request for access, but it does not represent its typical precondition”.
The purposes of the access, then, must be deduced and represented by the part “in a timely and specific manner in the request for exhibition… so as to allow the administration holding the document to examine the necessary instrumentality link between the documentation requested sub specie of abstract relevance with the final disputed situation”(1).
A recent concrete case: defensive access in the case of intolerable noise emissions
The TAR Lombardy, Brescia, section. II, in the sentence. 16 March 2026, n. 374, dealt with a hypothesis of access which is certainly peculiar and which may be of concrete interest. Specifically, the applicant was resident in an area classified in Class II by the acoustic zoning plan of the municipal territory, i.e. among the areas “intended for predominantly residential use”; believing that a local festival had created noise emissions of an intolerable level and invoking the need to protect his rights, he had requested access to a series of documents: request for occupation of public land by the committee that had managed the event, municipal authorization, exemption from acoustic zoning.
The Municipality, however, remained inert and the citizen was forced to appeal to the administrative judge, who assessed the request on the basis of the principles developed regarding access. Firstly, the purpose had been clearly indicated by the interested party, given that the request was “justified by the circumstance that the Beer Festival was a source of intolerable noise emissions for the applicant, who has an interest in acting for his rights”.
Secondly, the necessary instrumental link between the requested documentation and the legal situation that the applicant intends to protect was also evident: in fact, this requirement was present in re ipsaas the requested documents related to the various aspects of the organization of a local festival, i.e. the event which, according to the applicant’s thesis, would have involved inputs beyond the normal tolerability referred to in the art. 844 cc(2)
Furthermore, in this specific case, there was not even a need to protect the privacy of third parties, as these were documents relating to a public holiday.
The merit assessment of the municipal office
In the sentence it was recalled that “is precluded both by the Administration holding the document and by the Judge seised, pursuant to art. 116, legislative decree n. 104 of 2010, any ex ante assessment on the admissibility, influence or decisiveness of the document requested in any proceedings initiated, without prejudice to the evident and absolute lack of connection between the document and the defense needs and, therefore, in the event of specious or reckless exercise of the defense access itself due to the radical absence of the legitimizing conditions provided for by Law no. 241 of 1990”(3).
The merit of the claim is a very different concept from the link of instrumentality that must necessarily exist between the documents requested and the defense needs represented. The administration holding the document must limit itself to the nexus of instrumentality and must not, however, “carry out ex ante any further assessment on the admissibility, influence or decisiveness of the requested document in any proceedings initiated, since such an assessment is the responsibility, if necessary, only of the judicial authority in charge of the matter and certainly not of the public administration holding the document or of the administrative judge in the judgment on access, except in the case of a clear, absolute lack of connection between the document and the defense needs and, therefore, in the event of specious or reckless exercise of the defense access itself due to the radical absence of the legitimizing conditions provided for by ln 241 of 1990”(4).
The judges accepted the appeal against the Municipality’s silence and recognized the applicant’s right to display the documents indicated in the access request.
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Notes
(1) See, in terms, Plenary Meeting, sentence. March 18, 2021, n. 4.
(2) “The owner of a property cannot prevent the introduction of smoke or heat, fumes, noises, shaking and similar propagations deriving from the neighbor’s property, if they do not exceed normal tolerability, also taking into account the condition of the places.
In applying this rule the judicial authority must reconcile the needs of production with the reasons of ownership. It can take into account the priority of a certain use.”
(3) See, in terms, ex multisCouncil of State, sec. V, sent. 23 September 2025, n. 7457.
(4) Council of State, Plenary Meeting, sentence. March 18, 2021, n. 4.
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