By letter of 30.06.20141, ANACOM requested a detailed opinion from CADA (Comissão de Acesso aos Documentos Administrativos - the Commission for Access to Administrative Documents), under article 27, paragraph 1 c) of Law No 46/2007,of 24 August (LADA), on access to administrative documents, concerning the information provided by MEO to ANACOM, as determined in the scope of this Authority’s decision on the evolution of the DTT network, as it did not acknowledge the confidential nature of part of the provided information2.
By letter received at ANACOM on 21.07.20143, CADA sent the requested opinion, which is available at that Commission’s website4. By letter dated 01.08.20145, ANACOM notified MEO of the opinion received.
In brief, and by reference to issues specifically raised by ANACOM in its request for opinion, CADA expressed the following understanding:
«1. ICP-ANACOM’s position that part of the above-mentioned information, contained in letters submitted by PTC on 01.07.2013 and 11.11.2013 to this Authority, does not include nor reveals confidential information - as substantiated in detail in point III - is in accordance with the legal framework and with CADA’s doctrines on this issue?»
Invoking a prior opinion (No. 170/2013), CADA starts by materialising the concept of commercial and industrial secret, or secret concerning the internal life of the company, given that the restriction for access provided for in paragraph 6 of article 6 of LADA is based on the assumption that documents subject to it include secret information - this is because not all commercial and industrial information, or information concerning the internal life of companies, is deemed to be a secret.
In this context, CADA takes the view, by reference to prior doctrine, that where the requested party «considers that desired documents include information containing “company secrets”, it is entitled, stating its reasons, in order to “reveal in a clear and unambiguous manner, its arguments and, earlier on, assumptions on which its decision is based, thereby allowing the requesting party to be aware of the reasons for the adopted measure” (Opinion No 275/2008), to reject the request for access in the part that concerns such information (article 6, paragraph 6).»
After invoking several examples of case law, CADA, in brief, reiterates its position expressed in Opinion No 3/2012, in the scope of which it considered that:
a) The granting of access must be the rule, as it corresponds to the exercise of a fundamental right with the same structure of rights, freedoms and guarantees, and which shares the same regime;
b) Restrictions must be applied sparingly and only after a weighted analysis of the specific situation, and furthermore, they must be substantiated;
c) For each situation, it must thus be specified what is not given access to (which would be an exception to the right for access), everything else being available for third parties.
Concluding this issue, CADA considered «that ICP-ANACOM, whose knowledge on these matters must be recognised, was right to consider that part of the information in the identified letters is not reserved.
ANACOM’ understanding is substantiated extensively and in detail, in compliance with jurisprudence and doctrine put forward.
It should be added that, given the matter under consideration (Digital Terrestrial Television - DTT), and that all difficulties verified with the switchover process became public knowledge, the process concerning the evolution of this network should be as transparent as possible.» (cfr. respective page 22, emphasis added).
«2. Taking into account the divergence of views taken by ICP-ANACOM and PTC as to the classification of part of the information submitted by the latter in the above-mentioned letters, is this Authority entitled to decide on this matter - so as to determine the absence of confidentiality - and, as such, to make the information deemed not to be confidential available to stakeholders (either procedural or not) that request access to that information?»
In CADA’s opinion, the «answer to this question is in the affirmative; as referred in CADA’s opinion No 18/2012 “[i]t is incumbent on public bodies in possession of information conveyed by economic operators to decide in a substantiated manner on the right of access to that information or whether such information is subject to company secrecy”.
If any doubts arise with regard to the reserved nature of documents, the requested party is entitled to ask stakeholders to give reasoned comments on the nature of information conveyed.
Nevertheless, it is incumbent on the requested party to take a reasoned decision as to whether documents are subject to reserved access.» (cfr. respective page 22, emphasis added).
In conclusion, CADA considers that «ICP-ANACOM’s reasoning is correct that part of the information contained in letters sent by PTC do not include nor reveal reserved information» being incumbent on «ANACOM to decide, in a substantiated manner, as to the nature of the information that is transmitted to it.» (cfr. respective page 22).
1 Letter ANACOM-S041339/2013.
2 ANACOM informed MEO of this request for opinion submitted to CADA (letter ANACOM-S041660/2014, of 02.07.2014).
3 CADA's letter with reference 1160 2014.07-17, Process 391/2014.
4 Available at: Parecer n.º 259/2014
5 Letter ANACOM-S049405/2014.
