Right of access to construction documents and amnesty applications: principles, legislation and recent rulings

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Emma Potter

Right of document access: general elements

As specified by the Council of State (see section V, sentence 2 October 2019, n. 6603), this interest must be:

  • directas it can be attributed to the individual and personal sphere of the requesting party, thus having to exclude a general and undifferentiated legitimation;
  • concreteas it is specifically aimed, in a cognitive perspective, at the acquisition of documents capable of producing legal effects in the legal sphere of the applicant, making an application aimed at a “generalized control of the work of public administrations” proving unworthy of protection (see art. 24, paragraph 3, Law no. 241 of 1990);
  • currentas it is not merely prospective or possible, having regard to the ability of the desired information or cognitive acquisition to impact, also in terms of concrete potential, on personal existential or relational choices and on the acquisition, conservation or management of significant assets of life;
  • instrumentalhaving regard both, on a subjective level, to the necessary correlation with subjective situations worthy of protection in light of the current regulatory values, and, on an objective level, to the specific connection with the document materially suitable for conveying the information: not being, therefore, protected initiatives, on the one hand, inspired by a mere emulative intent and, on the other hand, aimed at the collection, processing or transformation of unstructured cognitive data not incorporated into “documents”.

From the wording of the art. 24, paragraph 7, of Law no. 241/1990 it appears that, for the purposes of balance between right of defensive access (prearranged for the exercise of the right to judicial protection in the broad sense) and protection of confidentialityapplies to general criterion of “need” for the purposes of “treatment” and the “defense” of its own legal interestconsidered by the legislator to prevail over the protection of confidentiality, provided that the existence of the aforementioned general prerequisites for defensive access is verified (1).

This parameter, which refers to the link between the documents subject to access and the possibility of judicial protection, must be ascertained on the basis of a prognostic judgment ex anteon the basis of the content of the ostensive request and the elements adduced therein, evaluating whether the former actually represent a “useful means” for the defense of the legally relevant interest, without judgments on actual usefulness with respect to the protection of the good of life or assessments on how the applicant intends to use the documentation request(2). We see two concrete examples drawn from recent jurisprudence.

Access to amnesty application submitted by the previous owner

According to the TAR Lazio, Latina, sec. II, sentence. 11 October 2024, n. 624the manager of a campsite who presented aapplication for amnesty may have access to other previous amnesty procedures previously presented by the private individual, linked to his request, necessary in the context of some pending civil and criminal disputes relating to the construction regularity of the camping area. And in fact:

  • the requested documents fall within the legislative notion of “administrative document” referred to in the articles. 22, paragraph 1, letter d), of ln 241/1990 and 1, paragraph 1, letter a), dPRn 445/2000 and are currently available to the Municipality;
  • exists in the hands of the appellant qualified, concrete, direct, current and instrumental interest to access the documentation requested by it, pursuant to art. 22, paragraph 1, letter. b), and of the art. 24, paragraph 7, of law 241/1990; and this taking into account that the interested party is the manager of the campsite as well as the presenter of an application for amnesty; that the documentation pertains to this request and that criminal and administrative disputes involving the regularity of construction in the area were pending, in which knowledge of the requested documents is functional to guaranteeing the exercise of the applicant’s right of defence.
  • the possible presence in the documentation of personal data of other subjects is not conferring, when considering the prevalence of defensive access on the confidentiality requirements established by the art. 24, paragraph 7 of law 241/1990;
  • the interest in access is then concrete, as it is aimed at acquiring documents whose availability is likely to have certain relevance in the legal sphere of the appellant;
  • there also exists theactuality of ostensive interestas the acquisition of the requested documentation is functional to allow the appellant to exercise the right of defense in court not only in pending disputes but also with respect to further judicial or extrajudicial protection initiatives, which the company itself could decide to undertake, once the required documents have been acquired;
  • the ostensive interest is, finally, instrumental: and this both on a subjective level, given its clear correlation with subjective situations worthy of protection in light of the current regulatory values, and on an objective level, given its specific connection with documents materially suitable for convey useful information for the moment.

Access to documents created by another PA but held by the Municipality

In the sent. 12 October 2024, n. 628, the TAR Lazio, Latina, sec. IIassessed the legitimacy of a denial by the Municipality when faced with an access request presented by a recipient of a cancellation of a permit under amnesty previously issued to its predecessor and concerning, among other documents, an assessment report from the Local Maritime Office of San Felice Circe and a note drawn up by the Ministry of Infrastructure and Transport – General Director for the supervision of the Authorities Port workers.
According to the Municipality, this documentation was not ostensible as it involved documents formed by another PA, to which the interested party should have addressed the request for access.

The judges, however, stated that, given that the Municipality did not deny holding the requested documents, documents drawn up by other Administrations cannot be denied access in the event that they are permanently held by the body receiving the ostensive request, as endo-procedural documents or in any case connected to the matter which is the subject of the dispute(3) (in the specific case, cancellation of a building permit).

Notes

(1) See Ad. Plen., sentence. n. 19/2020.
(2) See, ex multisCouncil of State, sec. VI, sentence. March 7, 2022; section V, sent. 3 August 2021, n. 5712; TAR Lombardy, Milan, section. III, sentence. March 20, 2020, n. 533.
(3) TAR Lazio, Rome, sec. II, sentence. 19 January 2024, n. 990.

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