MiBAC MUST ALSO ENSURE THE 'ACCESS TO DOCUMENTS AND ADMINISTRATIVE' the rule than the exception.
On 3 September 2010, the TAR of Lazio, in sentence no 32103, has declared favorably to the action brought by a participant in a contest at the MiBAC who, believing affected by the ranking, prepared and requested access to the curriculum of the other competitors.
Following the dismissal of silence 'instance, the above had been compelled to resort to the TAR of Lazio, then in the first sentence stated once again that access to administrative acts is the rule and the denial is the' exception .
Having said this, another interesting consideration is that: 'The access may in fact be excluded solely and exclusively in the cases expressly provided for in' art. 24 L. 241/1990, including those not covered in question. "
"Thus, access to documents produced by the candidates (as well as to reports, the evaluation sheets and the works) can not be rejected by the administration because:
Always on access to administrative measures, and in relation to the refusal , also have the comfort of a previous sentence, provided the TAR of Lazio, 12 November 2009 following an appeal against an order issued by 'INPS.
Returning to our ministry, it is now clear that with regard to access to administrative documents should resign as well established in law, especially with regard to the frequent denial that opposes the applicants and also because the law Access to administrative records will prevail over the right to privacy of third parties.
MiBAC, if he will continue to succumb to trial will therefore do well to adapt because, as demonstrated by this ruling, "In relation to the conduct of the Ministry that, almost twenty years since the L. n.241/1990, forced the question to refer the matter to the courts to achieve a peaceful law and reimbursement of expenses, according to general rules. Finally he was sentenced following the unsuccessful recognized € 2000.000 € 500.00 in expenses (and I pay ...).
In conclusion, it is' time to stop with this attitude persistent part of MiBAC act to deny 'access to administrative documents
For reference, the sentence in question is transcribed.
N. 32103/2010 REG.SEN.
N. 03367/2010 REG.RIC.
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
The Regional Administrative Court of Lazio
(Section Second Quater)
gives the following
Judgement on the appeal to General Ledger number 3367 of 2010, proposed by Giuseppe Ruiz , represented and defended by the lawyer. Michael Damiani, with an address by Michael Damian in Rome, Via Mordini, 14;
against
Ministry of Heritage and Activities' Cultural, represented and defended by the state, by law domiciled in Rome, via the Portuguese, 12;
against
Paolo D'Angeli, Angela Di Ciommo, Nicolazzo Vincenzo, Antonio Tarasco, Paola Passarelli, Muratori Giorgia , Tommasino Mario, Alessandra Franzone, Pasqualetti George Benedetto Luigi Compagnoni, Antonio Parente, Elisabetta Piccioni,
to cancel the instance
REJECTION OF SILENCE OF 3.2.2010 FOR ACCESS TO DOCUMENTS UNDER ART. 25 LN 241/90.
Since the action with its annexes;
Since the entry of appearance in court of the Ministry of Heritage and Activities' Cultural;
view of the briefs;
Taking all of the acts of the case;
Speaker in chambers on May 11, 2010 Cons. Umberto Realfonzo and heard the parties to the defenders as specified in the minutes;
held and considered the facts and law as follows.
FACT
The applicant, who had participated in the competition for public examinations and qualifications to five places of Director of Administration, issued a decree Directorial March 1, 2007, although it had successfully placed on the list, was the winner of that contest. By application
notified 3 February 2010 the applicant, motivated by explicit reference to the need to protect their subjective positions, as a result has requested access to the qualifications and documents evidencing the securities in preference to their competitors ranked eleventh in the ranking of the competition.
The appeal, duly notified to all counterparties, is entrusted to the complaint of infringement of Article. 97 of the Constitution and art. 22 et seq. of 7.8.1990, n. 241: knowledge of the acts required of the competition was essential to ensure the protection of its legal position, it remains necessary to rule on every aspect of confidentiality.
The Administration is only formally in court.
Call the Chamber of the Council concerned at the request of the applicant's counsel, was retained in the decision.
LAW
The appeal is based.
As is known, based on general principles, access to administrative acts is the rule and the denial is the exception.
Access may in fact be excluded solely and exclusively in the cases expressly provided for in art. 24 L. No 241/1990, which did not fall into one word.
Thus, access to documents produced by the candidates (as well as to reports, the evaluation sheets and the works) can not be rejected by the administration because:
- the right of access to administrative documents prevail over the right to privacy third parties (see TAR Lazio Rome sect. III, November 12, 2009, No 11094);
- must be excluded at the roots, compared to those documents, the need for confidentiality to protect third parties, and because the competitors taking part in the selection, have apparently agreed to compete in a competition in which the comparison of values \u200b\u200bis the essence, and because such acts, once acquired for the procedure, leaving the personal sphere of the participants (see TAR Campania Naples, sect. V, 09 February 2010, n. 726);
- there is no need to await completion of that, because there is no need for the injury is made with concrete and then it becomes a present interest to appeals, because the candidate is still an interest of self-knowledge of these acts, especially where the person concerned has requested copies of documents, such as curriculum, qualifications, etc.. in relation to which there is no conflicting requirements of confidentiality (see Council of State, sect. VI, 21 May 2009, n. 3147; TAR Liguria Genova, sez. II, 25 November 2009, n. 3460);
In conclusion the action is based and must be accepted and must be declared the applicant's right to access to required documentation within 15 days following the announcement in an administrative or notification of this decision.
In relation to the conduct of the Ministry that, almost twenty years since Law n.241/1990, forced the question to refer the matter to the courts to obtain a right disputed charges, according to general rules. following the unsuccessful and are paid in a total of € 2000.000 € 500.00 in expenses.
PQM
the Regional Administrative Court of Lazio-II, Part ^ - c:
1. Allows the appeal against the implied rejection, and the effect declaring the obligation of the Ministry to rule on the request for access to the applicant within the time and manner of the reasons given;
2. Condemns the State to pay the court costs that are paid in a total of 500.00 to € 2,000.00 in costs.
Order that this sentence is carried out by the administrative authority.
Decided in Rome in chambers on May 11, 2010 with the assistance of Judges:
Lucia Tosti, President
Umberto Realfonzo, Advisor, extenders
Alessandro Tomassetti, Councillor
FILED IN OFFICE The
09/03/2010
(Art. 55, L. 27/4/1982, n. 186)
THE SECRETARY
0 comments:
Post a Comment