Portugal
Name of law: Regime de Acceso: Law no. 46/2007
First adopted: 1993
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 1993
Last modified: n/a
RTI Rating last updated: n/a
Introduction
Like many Western European states, Portugal has a relatively outdated and flawed right to information law. Though the Portuguese legislation is built on a strong constitutional foundation and is supplemented by a broad scope, the law’s exception regime is seriously flawed. There are several non-compliant exceptions and they are neither subject to a harm-test or public interest override. Furthermore, other laws and regulations can create additional exemptions from the law through a classification of information into excluded categories. Additional areas for further improvement include adding a clear sanctioning system for public authorities which seriously fail in their statutory duties to disclose requested information and strengthening statute mandated promotional measures arrangement.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 4 | 6 |
| 2 | Scope | 22 | 30 |
| 3 | Requesting Procedures | 19 | 30 |
| 4 | Exceptions & Refusal | 10 | 30 |
| 5 | Appeals | 14 | 30 |
| 6 | Sanctions & Protections | 0 | 8 |
| 7 | Promotional Measures | 4 | 16 |
| ∑ = 73 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | Article 268 (1989 Constitution): (1) Citizens shall possess the right to be informed by the Administration whenever they so request as to the progress of the processes in which they are directly interested, as well as to be made aware of such decisions as are taken in relation to them. (2) Without prejudice to the law governing matters of internal and external security, criminal investigation and personal privacy, citizens shall also possess the right of access to administrative files and records. (3) Administrative acts shall be subject to notification to the interested parties in the form laid down by law, and when they affect rights or interests that are protected by law, shall be based on express grounds that can be accessed by the parties. (4) Citizens shall be guaranteed effective judicial oversight of those of their rights and interests that are protected by law, particularly including the recognition of the said rights and interests, the impugnation of any administrative act that harms their rights and interests, regardless of its form, the issue of positive rulings requiring the practise of administrative acts that are due by law, and the issue of adequate injunctions. (5) Citizens shall also possess the right to challenge administrative rules which possess external force and which harm any of their rights or interests that are protected by law. (6) For the purposes of (1) and (2) above the law shall lay down a maximum time limit for responses by the Administration. | Only right of citizens to access administrative files and records -- somewhat limited, but for the purposes of this indicator enough for 2 points. Link to Constitution of Portugal (English version) here. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 1 Access to and the re-use of administrative documents shall be ensured in accordance with the principles of publicity, transparency, equality, justice, and impartiality. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | N/A | Not mentioned. |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 5 Everyone shall possess the right of access to administrative documents without the need to state any interest, to include the rights of consultation, reproduction, and information as to the administrative documents' existence and content. | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | Art 3.1: For the purposes of the present Law the following terms shall mean: a) "Administrative document": any information medium in written, visual, aural, electronic or other material form, which is in the possession, or is held on behalf, of the bodies and entities referred to by the following Article; | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | Partially | 1 | Art 1: Access to and the re-use of administrative documents shall be ensured in accordance with the principles of publicity, transparency, equality, justice, and impartiality. | The law only mentions access to documents. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 7 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. Article 2.5: Access to documents kept by notaries public or in official registries, to civil and criminal identification documents, and to documents deposited in historical archives shall be governed by specific legislation. | Article 4.1 is very broad, however, Article Art 2.5 excludes "documents deposited in historical archives" which "shall be governed by specific legislation", so this is taken as an exclusion of the archives and 1 point is deducted. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | Partially | 1 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. Article 2.5: Access to documents kept by notaries public or in official registries, to civil and criminal identification documents, and to documents deposited in historical archives shall be governed by specific legislation. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | Partially | 1 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. Article 2.5: Access to documents kept by notaries public or in official registries, to civil and criminal identification documents, and to documents deposited in historical archives shall be governed by specific legislation. | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. 2. The provisions of the present Law shall also apply to documents held or drawn up by any body which possesses legal personality and has been created to fulfil needs of general interest that do not possess an industrial or commercial nature in a specific manner, and to which any of the following circumstances applies: a) The majority of the funding for the body's activities is provided by any of the entities referred to by the previous paragraph or the present paragraph; b) The body's management is subject to a control by any of the entities referred to by the previous paragraph or the present paragraph; c) More than half the members of the body's management or supervisory boards are appointed by any of the entities referred to by the previous paragraph or the present paragraph. | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. 2. The provisions of the present Law shall also apply to documents held or drawn up by any body which possesses legal personality and has been created to fulfil needs of general interest that do not possess an industrial or commercial nature in a specific manner, and to which any of the following circumstances applies: a) The majority of the funding for the body's activities is provided by any of the entities referred to by the previous paragraph or the present paragraph; b) The body's management is subject to a control by any of the entities referred to by the previous paragraph or the present paragraph; c) More than half the members of the body's management or supervisory boards are appointed by any of the entities referred to by the previous paragraph or the present paragraph. | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | YES | 2 | Art 4.1: The present Law shall apply to the following bodies and entities: a) Bodies which belong to the State and the autonomous regions and form part of the Public Administration; b) Other bodies which belong to the State and the autonomous regions, to the extent to which they perform materially administrative functions; c) Bodies which belong to public institutes and public associations and foundations; d) Bodies which belong to state-owned companies: e) Bodies which belong to local authorities and to their associations and federations; f) Bodies which belong to regional, inter-municipal and municipal companies; g) Other bodies which engage in administrative functions or exercise public authority. 2. The provisions of the present Law shall also apply to documents held or drawn up by any body which possesses legal personality and has been created to fulfil needs of general interest that do not possess an industrial or commercial nature in a specific manner, and to which any of the following circumstances applies: a) The majority of the funding for the body's activities is provided by any of the entities referred to by the previous paragraph or the present paragraph; b) The body's management is subject to a control by any of the entities referred to by the previous paragraph or the present paragraph; c) More than half the members of the body's management or supervisory boards are appointed by any of the entities referred to by the previous paragraph or the present paragraph. | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | NO | 2 | Art 5: Everyone shall possess the right of access to administrative documents without the need to state any interest, to include the rights of consultation, reproduction, and information as to the administrative documents' existence and content. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | Art 13.1: Access to documents shall be requested in writing in the form of an application which shall contain such elements as are essential to the identification of the documents in question, together with the applicant's name, address and signature. | |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | Art 13.1: Access to documents shall be requested in writing in the form of an application which shall contain such elements as are essential to the identification of the documents in question, together with the applicant's name, address and signature. | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | Art 13.5: Acting in the person of their members of staff, the bodies and entities referred to by Article 4 shall assist the public in identifying the documents they want, particularly by informing them of the way in which their archives and registers are organised and used. | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | YES | 2 | Art 14.1: d) Inform the applicant that it does not possess the document and, if it knows what body does hold it, send the application to that body with a copy to the applicant; | |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Does not mention as soon as possible, however the stated time frame is 10 days. |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | YES | 2 | At. 14 1. "The body to which an application for access to an administrative document is made shall, within ten days: a) Communicate the date, place and means on, in and by which the consultation, if one is requested, is to take place; b) Issue the requested reproduction or certificate; c) Communicate in writing the reasons for any total or partial denial of access to the desired document, together with a description of the guarantees applicable to administrative and litigious appeals against the decision in question; d) Inform the applicant that it does not possess the document and, if it knows what body does hold it, send the application to that body with a copy to the applicant; e) Expound any doubts which it has about the decision it has to make to CADA, in order that the latter may issue a formal opinion thereon." | 10 days |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | Art 14.4: In exceptional cases, if the volume or complexity of the information so warrant, the time period referred to by paragraph (1) above may be extended to a maximum of two months, whereupon the applicant shall be informed of the fact and of the grounds therefore within a maximum of ten working days. | Extension of 2 months but there is a need to inform and motivate that extension. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | N/A | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | YES | 2 | Art 12. " 1. The reproduction provided for by paragraph (1)b of the previous Article shall take the form of a single copy, which shall be subject to payment by whoever requests it of a fixed fee, which shall be equal to the sum of the proportional costs of the use of machines and tools and of the materials used and the service provided, but shall not exceed the average amount for the equivalent service practised by the market. 2. With due regard to the provisions of the previous paragraph and after consulting the Commission on Access to Administrative Documents (hereinafter referred to in abbreviated form as “CADAâ€), the Government of the Republic, the Governments of the Autonomous Regions, and the national associations of local authorities shall set the fees to be charged for reproductions and certificates of administrative documents. 3. Bodies which possess an autonomous power to tax shall not set fees that exceed the various amounts set in accordance with the previous paragraph by more than 100%, and shall abide by those amounts until such time as they publish their own tables of fees. 4. The bodies and entities referred to by Article 4 shall affix a list of the fees they charge for reproductions and certificates of administrative documents in a place which is accessible to the public. 5. A body to which an application is made may require an advance to guarantee payment of fees and, where applicable, of postage or shipping charges." | |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | Art 16.1: Documents which are held or drawn up by the bodies referred to by Article 4 and access to which is authorised under the terms of the present Law, may be re-used by natural persons or bodies corporate for purposes other than the public service purpose for which they were produced. | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 6 | Art. 6 " 1. Documents which contain information, knowledge of which is deemed capable of endangering or damaging the internal and external security of the State, shall be subject to prohibited access or access with authorisation, for such time as is strictly necessary, by means of their classification as such in accordance with specific legislation. 2. Access to documents concerning the confidentiality of legal proceedings shall be governed by specific legislation. 3. Access to administrative documents which are preparatory to a decision or which are included in incomplete files may be delayed until the decision in question is taken, the file is archived, or one year has passed since they were drawn up. 4. Access to inquiries and investigations shall occur after the time period for any disciplinary proceedings has passed. 5. Third parties shall only possess the right of access to nominative documents if they are in possession of written authorisation from the person to whom the data refer, or if they demonstrate a direct, personal and legitimate interest which is sufficiently important under the principle of proportionality. 6. Third parties shall only possess the right of access to administrative documents which contain commercial or industrial secrets or the internal life of a company, if they are in possession of written authorisation from the company in question, or if they demonstrate a direct, personal and legitimate interest which is sufficiently important under the principle of proportionality. 7. Administrative documents which are subject to restricted access shall be the object of partial communication whenever it is possible to expunge the information concerning the reserved matter." | |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | Art 6.7: Administrative documents which are subject to restricted access shall be the object of partial communication whenever it is possible to expunge the information concerning the reserved matter. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | Art 14.1: The body to which an application for access to an administrative document is made shall, within ten days: a) Communicate the date, place and means on, in and by which the consultation, if one is requested, is to take place; b) Issue the requested reproduction or certificate; c) Communicate in writing the reasons for any total or partial denial of access to the desired document, together with a description of the guarantees applicable to administrative and litigious appeals against the decision in question; d) Inform the applicant that it does not possess the document and, if it knows what body does hold it, send the application to that body with a copy to the applicant; e) Expound any doubts which it has about the decision it has to make to CADA, in order that the latter may issue a formal opinion thereon. | The body shall communicate in writing the reasons for any total or partial denial of access to the desired document, together with a description of the guarantees applicable to administrative and litigious appeals against the decision in question. |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | Art 15.1: Applicants may complain to CADA about a lack of response, denial of an application, or any other decision which restricts access to administrative documents. | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | Art 26. Composition: " 1. CADA shall be composed of the following members: a) One Justice of the Supreme Administrative Court, who shall be appointed by the Supreme Council of Administrative and Fiscal Courts and shall chair the Commission; b) Two Members of the Assembly of the Republic, to be appointed by the latter, one upon a proposal from the parliamentary group of the largest political party which supports the Government, and one upon a proposal from the largest opposition party; c) A Professor of Law, to be appointed by the President of the Assembly of the Republic; d) Two prominent persons, to be appointed by the Government; e) One prominent person appointed by the Governments of each of the autonomous regions; f) One prominent person, to be appointed by the National Association of Portuguese Municipalities (ANMP); g) A lawyer, to be appointed by the Lawyers’ Order; h) One member, to be appointed by the National Data Protection Commission (CNPD) from among its own members. 2. Full members shall be substituted by substitute members appointed by the same persons and bodies. 3. The members of CADA shall be installed in the presence of the President of the Assembly of the Republic within the ten days following the publication of the list of the Commission’s members in Series I of the Diário da República. 4. Their terms of office shall be for two years, shall be renewable, and shall terminate upon the installation of new members." | |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | Art 25.2: CADA shall dispose of an annual budget, provision for which shall be included in the budget of the Assembly of the Republic. | |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | Art 27.1: CADA shall be responsible for: c) At the request of the bodies and entities referred to by Article 4, issuing a formal opinion on access to administrative documents; | The opinion is not binding. |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Art 38.1: An impugnation of a final decision made by CADA shall take the form of a claim, which shall be submitted within ten days of notification of the decision. 2. In the event of such an impugnation, CADA may modify or revoke its decision, whereupon it shall notify the impugner of its new final decision. 3. In the event that it maintains its existing decision, within ten days CADA shall forward the claim to the Public Prosecutors' Office at the Lisbon Administrative and Fiscal Court. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | Art 15.1. Applicants may complain to CADA about a lack of response, denial of an application, or any other decision which restricts access to administrative documents. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | Art 15.3: In the event that the complaint is not summarily dismissed, CADA shall invite the body to which the application was made to respond to the complaint within ten days. 4. In both the case of a complaint and that of the consultation provided for by Article 14(1)e, CADA shall have forty days in which to draw up the applicable situation assessment report and send it with its due conclusions to all the interested parties. 5. Once it has received the report referred to by the previous paragraph, the body to which the application was made shall communicate its duly justified final decision to the applicant within ten days, failing which there shall be deemed to be an absence of decision. | |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | Art 9: Every ministry, regional secretariat, local authority, public institute, public association, public foundation, public company, regional company, inter-municipal company, and municipal company shall designate a person to be responsible for compliance with the provisions of the present Law. | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | Art 27: g) Drawing up an annual report on the implementation of the present Law and on its own activities, to be sent to the Assembly of the Republic for publication and consideration and to the Prime Minister. |
