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Among the various disputes that sometimes arise in the school are those regarding the right of access to administrative documents that are denied for feared privacy reasons or for fear of widespread control over the work of the PA. But these limitations are often unfounded.
The fact
A plaintiff, through her lawyer, when she considered that there was a violation of the criteria of didactic continuity and seniority established by the School Council for the purposes of assignments, requested the extraction of a copy of the minutes of the School Council that contains the criteria for the teacher assignment. and the writing of the publication of free classes prior to the decree assigning teachers to classes. Not having received a response, it was duly forwarded to the Court, requesting verification of her right of access to the requested documents. The Ministry and the educational institute have been established. The appeal was considered well founded and accepted with judgment of 02/21/2020 N. 00426/2020 of the Regional Administrative Court of Sicily, second section.
Legislation
The College observes that art. 22, paragraph 1, lett. b) of law n. 241 of 1990 requires ownership of “a direct, concrete and current interest, corresponding to a legally protected situation and linked to the document to which access is requested”; the third subsequent paragraph establishes that “all administrative documents are accessible except those indicated in art. 24 c. 1, 2, 3, 5 and 6 “; the following art. 24, paragraph 7, specifies that” applicants must be guaranteed access to administrative documents whose knowledge is necessary to protect or defend their legal interests. “
According to constant jurisprudence, “the right of access does not constitute a purely instrumental claim to the defense before the courts of the substantive situation, being in fact directed to the achievement of an autonomous life asset so that the request aimed at obtaining access to documents is independent only due to the fate of the main process in which the aforementioned situation is affirmed (State Council, section VI, April 12, 2005 no. 1680) but also due to the possible lack of foundation or inadmissibility of the judicial request that the plaintiff could raise once known. the acts (Council of State, section VI, September 21, 2006 no. 5569) “. In this sense, the Council of State, section V, February 23, 2010, n. 1067.
It should also be remembered that art. 22, paragraph 2, of Act No. 241 of 1990, (modified by letter a) of paragraph 1 of art. 10 of the law of June 18, 2009, n. 69) gives the “right” of access, given its relevant public interest purposes, the value of the “general principle of administrative activity to promote participation and ensure its impartiality and transparency.”
The official is a qualified actor
Furthermore, according to an acceptable jurisprudence, in the context of labor relations in public administrations, the worker is always the bearer of a qualified interest in knowing the acts and documents related to his job, since they are outside the law to exercise confidentiality and that art. 22 of law n. 241 of 1990 guarantees access to administrative documents related to the public employment relationship, even if it is contracted (State Cons. Section III, May 27, 2013, no. 2894).
Yes to the right to access the minutes of the Institute Council on the criteria for assigning teachers
In the case in question, as the judges point out, it must be excluded that the request for access is intended to carry out a generalized control of the administration’s activity since the documents requested are specifically identified and delimited in terms of time. In light of the aforementioned normative and jurisprudential data, there are no doubts about the applicant’s ownership of a direct, concrete and current interest, due to the feared violation of the criteria established by the Council of the Institute for the purposes of assignments, considering the applicant than other teachers with less seniority than yours have been assigned to the required classes. There are also no reasons that prevent the request for documentary production, without prejudice to the confidentiality of the interested parties or public interests in conflict with the applicant’s need for information (see TAR Sicilia, Palermo, section II, 01/10/2020 n.61 ).
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