they have been received 7 contributions comprising a total of 22 observations made to the draft document of the Third Plan of Action.

CONTRIBUTION 1: J.M.A.M (14-05-2017)

The "http://datos.gob.es/foro-cpp-risp" link on page 54 of the document does not work. Remove or update it.

CONTRIBUTION 2: M.A.B.C (16-05-2017)

These are my observations on the Draft of the III Open Government Plan.

A) UNVALUED CONTRIBUTIONS

On July 26, 2016 I presented several contributions that have not been valued in the Valuation Report dated April 7, 2017. They are as follows:

1.- No measures are adopted to improve the jurisdictional protection of the right of access to information.

On page 38 of the 2014-2015 Progress Report drafted by the Open Government Partnership (OGP) Independent Review Mechanism (IRM), an example of strong commitment to accountability is given: “Improving access to justice, making justice mechanisms cheaper, faster, or easier to use.” Well, in Spain, at present, and despite having a State Transparency Law and 11 regional ones, when the information requested by the citizen is not provided or the obligations of active advertising on the website are breached, the judicial route is unbearable in terms of economic and temporary costs: it takes an average of 2 years to obtain a firm judgment that condemns the Administration to give the information; judicial fees (the legal persons), the fees of lawyer and prosecutor must be paid and assume the risk of a possible conviction in costs if the lawsuit is lost. Very few citizens go to the Courts of Justice. It is difficult to be optimistic when a new rule is passed and the necessary weapons are not attributed to ensure its application and prevent its non-compliance. The 11 autonomous laws on transparency have not contemplated anything in this regard because the competence is exclusive to the State. The contentious-administrative jurisdiction, as currently configured, does not comply with the requirements imposed by the Council of Europe Convention on Access to Public Documents of 2009 – not yet ratified by Spain – in the sense of ensuring to the citizen the existence of a quick and economic appeal procedure against the refusal to provide information by a public entity. In my opinion, the right of access to public information, as a fundamental right that I consider to be, should be protected by a special, summary and oral procedure. In any case, what is necessary is to configure a new procedure to protect the right of access to public information quickly and effectively. As a proposal for the future, the procedure could be initiated by means of a simple request, for which forms or forms can be used, addressed to the Court of Administrative Litigation where the public body or entity to whom the information has been requested has its headquarters, without the need for the intervention of prosecutor and lawyer, without paying court fees, and without the imposition of costs unless temerity or bad faith is perceived. This request should be accompanied by a copy of the requested information request or a description of the active information obligation that is being breached. If the public entity does not appear or does not oppose, the Court would order the immediate delivery of the information to the applicant or the active publication on the website of the information omitted, unless it emerges the existence of any legal limitation that prevents it. If the public entity becomes individual and objects to the request, the matter would be definitively resolved through the shortened procedure.

2.- The new Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations, which will enter into force in October 2016, contains a definition of administrative dossier that, in my opinion, is unconstitutional.

If the Administration removes from the administrative file auxiliary or supporting information, which, although contained in applications, notes or summaries, may be important, as well as communications and reports internally or between administrative bodies or entities and value judgments issued by the Public Administrations, which may also shed light or serve to clear the arbitrariness of the Administration, it seems obvious that the following rights are hindered beyond reason:

(a) The constitutional right of defence of those concerned in administrative proceedings.

b) The subsequent control of the Administration by the Courts of Justice.

(c) The requirement of accountability to public authorities and officials.

(d) Citizens ' right of access to public information.

At the same time as approving a State Transparency Law and numerous regional ones, an Administrative Procedure Law is enacted that allows the removal or theft of documents from the file. Surprisingly, the administrative dossier is now more opaque than before these laws. Do we move forward or do we move backwards?

3.- Failure to comply with the transparency laws does not have any real and effective punitive consequences.

The authority to initiate and resolve the administrative procedure to punish the infringements committed by the breaches of the State law on transparency in the field of active and passive advertising is attributed to the Administration itself responsible for its non-compliance, and therefore these infringements are not applied. The competence to initiate and resolve sanctioning procedures should be attributed to the Council of Transparency and Good Governance and similar autonomous institutions.

4.- The new LTAIP is applied as a substitute in the procedures in which citizens have the status of interested parties

and in all those areas that have a specific regulation of the right of access to information -urbanism, environment, social services, health, education, etc. ); so this regulatory dispersion negatively affects the right of access to public information. The modification of the first additional provision of the LTAIP should be considered as a commitment of the III Open Government Plan, in the sense that the LTAIP should be applied in any case, unless the specific access regime is even more favorable for the citizen or interested party.

5.- Creation of a Register of Applications for Access to Public Information in which applications submitted by both citizens and interested parties in the corresponding administrative procedure, as well as the corresponding responses, must be registered.

It is necessary to know whether or not the Administration responds to the requests, how long it takes to respond and in what sense it responds by admitting, denying or estimating the requests.

6.- Private entities that provide services of general interest or concessionaires of public services (electricity, water, gas, telephony, hospitals, waste, etc.) are not subject to the State Transparency Law. );

In my opinion, without prejudice to the obligation to inform the relevant administration or body, when faced with the provision of a public service of general interest for all citizens, the concessionaires and the private entities that provide them - which may also enjoy public funds, tax advantages or special rights - must be subject to the State Transparency Act, complying with the same obligations of active and passive advertising that public administrations have with respect to the public service they manage. For example, with regard to the controversy surrounding the advantages and disadvantages of public or private health management, it does not seem reasonable that, being in any case a publicly owned service, citizens should not have the right to access information on the expenses of a particular hospital simply because that health centre is managed by a private entity. In this case, the privately managed hospital would not be subject to compliance with the active information obligations contained in the LTAIP. The general interest of the service and its public ownership justify the fulfillment of the obligations of passive and active information provided in the State law of transparency regardless of the private nature of the entity that provides or manages the public service. 8.- The limits or exceptions to the exercise of the right of access remain very numerous, broad and ambiguous. Some regional laws have defined some causes of inadmissibility such as the concept of reprocessing, auxiliary or support information and abusive requests. The description of the limits or exceptions is too vague and undetermined. The generality of the cases that may be affected are so broad, that the right of access may be devoid of content. In my opinion, there is little point in recognising the right of access to public information with so many limits. It is difficult to think of a request that, in one way or another, cannot be affected by these very broad limitations. Some of the interpretative criteria set by the Council for Transparency and Good Governance have, in my opinion, been excessively restrictive with regard to the right of access to information.

B) CONTRIBUTIONS NOT VALUED DUE TO BEING IN A PARLIAMENTARY SEAT

Nor have many contributions been valued due to the fact that some of them have been included in the proposal for a Comprehensive Law to Combat Corruption and Protect Whistleblowers, which is currently being processed in the General Courts. I believe that the mere fact that they have been included in a proposed law without it being possible to know at this stage what the definitive content of the Law will be that, if applicable, will be approved by the General Courts, does not prevent their inclusion as commitments in the III Open Government Plan. Therefore, the following issues are requested to be included in the III Open Government Plan:

1.- Administrative silence is negative

So most of the requests for compromised information remain unanswered. The deadlines for the resolution of requests for information must be short, so that the information is provided as soon as possible. The start of the deadline must start at the moment when the application is registered with the Administration, not in the body competent to resolve it, as provided for in the Catalan Transparency Law. Otherwise, the existence of administrative uncoordination is in the interests of the administration itself, since the deadline for resolution does not even begin, to the clear detriment of the citizen. On the other hand, if the time limit begins when the application enters the Administration, the officials will be responsible for quickly sending the application to the competent body because the time limit to resolve will have already begun to count. The acknowledgement of receipt must indicate the identification of the authority or official responsible for processing the request for information. The State Transparency Act has decided to recognize negative silence as basic legislation. Non-timely resolution will be understood as dismissal of the application in all state, regional and local public bodies. The negative silence enshrines the systematic and reprehensible lack of response to requests for information. The authorities and public employees have no interest in replying. Positive silence, although it does not guarantee the immediate availability of information, would at least contribute to reducing the widespread non-compliance with the obligation to respond. If the silence is positive, the Administration could no longer expressly deny the request for information because it is prevented by Article 43.4.a) of the LRJPAC. It could only declare it harmful to the public interest and challenge it before the contentious-administrative jurisdiction. The citizen could file a contentious-administrative appeal under Article 29.2 of the LRJCA, raising a claim of condemnation to provide the document or information requested, with the possibility of requesting as a precautionary measure the delivery of the same. If the right to information has already been acquired through positive silence, the precautionary measure of execution of a firm act and immediate surrender is much easier to adopt, unless there is a manifest prohibition or exception to the right of access that the Court or Tribunal may determine. On the contrary, some regional laws have opted for positive silence (Catalonia, Valencian Community, Aragon and Navarre). The legal conflict is served.

2.- The control bodies created lack the means to oblige the Administration to provide the information and it takes too long to access it.

In Spain, there is an entity in charge of resolving the claims through administrative channels - the Council of Transparency and Good Governance for the General Administration of the State and the multiple Autonomous Councils that are already functioning in Murcia, Valencia, Catalonia, etc., or Transparency Commissioner in the Canary Islands - whose lack of express resolution should be understood as disestimatory of the claim. These control bodies have already begun to function and the main problems that have been detected are the following:

-The lack of means of forced execution to ensure that the affected administration complies in a real and effective manner with the judgments of the claim presented by the citizens and provides the requested information. The control body gives the citizen reason and the citizen does not appeal the resolution. After a few months, the citizen verifies that the Administration does not comply with this resolution, and the control body finds that it cannot sanction the Administration or forcibly execute its resolution through coercive fines so that the Administration delivers the information to the citizen.

- The time that has elapsed since the request for access to information is submitted by the citizen and the Administration replies to it (an extendable month for another month), plus the time that passes to obtain a resolution from the control body (an average of three months), causes an average wait of about 6 months to access the information. In many cases, the interest or usefulness of the information has already disappeared. If the administration does not voluntarily comply with the decision of the control body, the citizen is left without being able to access the information.

C) CONTRIBUTIONS VALUED AND REJECTED WITHOUT SUFFICIENT REASON

1. The right of access to public information is still not recognized as a fundamental right.

If the Spanish Constitution is not amended to expressly include the right of access to public information as an autonomous fundamental right, it can be understood, in my opinion, to include the right to participate in public affairs directly (article 23.1) and the right to freedom of expression and to receive information (article 20.1.a) and d). The right of access to public information is inherent in the fundamental right to the participation of all citizens in public affairs, and not only exclusively and exclusively protects freely elected political representatives. The European Court of Human Rights and the Inter-American Court of Human Rights consider that the right of access to public information falls within the fundamental right to freedom of expression. The consideration of the right of access to public information as a fundamental right is very important to be considered on an equal footing with the fundamental right to the protection of personal data. In addition, this means that it could be invoked directly before the Courts of Justice through a summary and preferential procedure and, where appropriate, a subsequent application for amparo before the Constitutional Court. With this being relevant, it is no less important to maximize the speed of the guardianship and guarantee mechanisms so that their exercise is real and effective. Instruments for the protection of the law are the key. However fundamental it may be, if the citizen lacks quick and agile means to force the entity to provide the requested information, very little progress will have been made. It is surprising that, at this time of the century, in our democratic system the right of petition is considered a fundamental right and, on the contrary, the right of access to public information is not. The pressure of nationalist groups not to lose the competence to approve an autonomous law on transparency has also played against recognizing the right of access to information as a fundamental right. The competing interests of the autonomous institutions have taken precedence over the rights of citizens, who face different systems of transparency according to the Autonomous Community. If the right of access to public information had been considered as a fundamental right, it would have had to be regulated by Organic Law - whose competence is exclusive to the State - as has happened in the field of personal data protection, where there are no regional laws. In terms of transparency and access to public information, we already have 11 autonomous laws that do not exactly coincide. It is not argued that the right of petition is a fundamental right according to the Spanish Constitution and that the right of access to public information is not a fundamental right.

2.- It is necessary to include as a priority in the III Open Government Action Plan the ratification of the Council of Europe Convention on Access to Public Documents of 2009.

At the level of the Council of Europe, the right of access to public documents is implicit in the fundamental right to freedom of expression and communication, so ratification of the Convention would strengthen the consideration of the right of access to public information as a fundamental right within the fundamental right to freedom of expression and communication.

3.- Publish on the web the waiting lists anonymized with existing numerical codes for access to public services: health (diagnostic tests and surgical interventions), housing (access to social protection housing for rent or sale), etc.

Although the management of health and housing are autonomous competences, the State has basic competence in both sectoral areas to add this commitment in the Third Open Government Plan.

4.- Regarding the most sensitive matters to corruption

(public procurement, town planning, subsidies, public employment, budget and accounts, environment, financing of political parties, institutional advertising, etc. ), publication on the web of the minutes of the collegiate bodies; the reports (mandatory or optional) issued by the legal, technical or economic intervention services (authorization, management and justification of public expenditure); and the acts and agreements adopted in said files of approval, modification, adjudication, resolution and refund. The European Contracting Directives do not prevent the publication of legal, technical or economic intervention reports, without prejudice to anonymizing any personal data that may appear in them. Recital 122 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC provides as follows: "citizens, interested parties, whether organised or not, and other persons and bodies who do not have access to appeal procedures under Directive 89/665/EEC do have a legitimate interest, as taxpayers, in proper procurement procedures. They should therefore be given the possibility, in a manner different from that of the system of appeal provided for in Directive 89/665/EEC, and without necessarily implying that they are given legitimacy before the courts, of pointing out possible infringements of this Directive to the competent authority or structure.'

CONTRIBUTION 3: J.M.A.M (19-05-2017)

Include in “Commitment 3.2: Programs for the opening of information and its reuse” such as “coordinated ministerial action”, section “goals”, “epigraph “ 1 (Royal Decree of regulatory development of Law 18/2015), the following “content”: The supply of digital content with free licenses (CC-BY 4.0) is strengthened to facilitate the creation of added value in the private sector (Industry 4.0 in Creativity, Culture, Infomediary Sector), in a homogeneous way, and in the entire AGE.

The conditions of the type licenses for reuse of documents made available to the public, mentioned in article 4.2.b of Law 18/2015, are developed in detail.

EXPLANATION: The homogeneous offer of digital content with free licenses in all ministries is an important decision in RISP matters. Currently there are contradictory situations. The Ministry of Development in Order FOM/2807/2015 annulled the previous policy of public rates and prices of the IGN (Order FOM/956/2008), establishing licenses of use compatible with CC-BY 4.0 On the contrary, in Education the Order CUL/1077/2011 remains unchanged, with a policy of public rates and prices that in the case of the IPCE is 21 euros per image for editorial uses, public communication and web, and 93 euros per image for commercial or advertising uses. These are digital copies of objects in the public domain (photographs from more than 100 years ago). Interestingly, the IPCE is listed in the “Open Data” catalog with these Terms of Use.

The same happens in agencies that depend on other ministries, such as National Heritage (Presidency of Government). The policy of public fees and prices is a totally obsolete business model and an important barrier to the RISP. Transaction costs often exceed the meagre revenues generated, as can be seen in the responses received in the following Transparency Portal files: 001-000852 Ministry of Culture: Archives, Museums, IPC 001-001390 Presidency of Government: National Heritage 001-002674 National Library 001-002728 Museo Nacional del Prado Free licenses are essential for the development of Industry 4.0. Also in Culture and Creativity, for Creative and Cultural Industries.

A simple way to include this proposal in the Royal Decree of Regulatory Development of Law 18/2015, is for the AGE and the agencies that depend on it to waive the exception that article 7.2.c of the aforementioned Law provides for “libraries, including university libraries, museums and archives”. It is a question of applying the general principle of marginal costs, and preferably that of gratuitousness without prior request, in the modalities contemplated in Article 4.2: a) Reuse of documents made available to the public without conditions. b) Reuse of documents made available to the public subject to conditions established in type licenses.

CONTRIBUTION 4: J.M.A.M (19-05-2017)

The link on page 54 leads to the 2014 ONTSI report. http://www.ontsi.red.es/ontsi/es/informacion-y-recursos/estudio-de-caracterizaci%C3%B3n-del-sector-infomediario-2014 Update to point to the same 2016 document. http://www.ontsi.red.es/ontsi/es/content/estudio-de-caracterizacion-sector-infomediario-2016

CONTRIBUTION 5: M.C.C.P (23-05-2017)

I was struck by the fact that the draft does not mention anything about the regulation of the Lobbies through a mandatory registration as part of the Transparency that it proclaims. Thank you

CONTRIBUTION 6: A.C.M.F (26-05-2017)

I consider it appropriate and appropriate that some mention be made of the legal consequences of the lack of active transparency of the subjects bound by article 3 of the Law on Transparency, Access to Information and Good Governance. Currently, it does not require any type of consequence or measure of coercion for its fulfillment.

CONTRIBUTION 7: Access Info Europe (26-05-2017)

From Access Info we value positively the possibility of being able to present our contributions to the draft of the III Open Government Plan

Comment on the necessary inclusion of a commitment on amendments to the Transparency Act.

Having a good Transparency Law is one of the essential pillars of open government, therefore, civil society continues to demand a law in line with international standards. Considering that Article 87 of the Spanish Constitution grants legislative initiative to the Government and that legislative measures have already been included in previous OGP plans, there is no legal and practical obstacle to carrying out this reform of the Law other than the absence of political will.

The Government has a very good opportunity to demonstrate this commitment and political will with transparency, including the modification of Law 19/2013 in the III Open Government Action Plan.

Among the improvements that should be included are:

1) Recognition of the right of access to information as a fundamental right, following the appeal made by more than 50 Spanish academics in December 2016.

2) To extend the scope of the Law to all public institutions, the three branches of government, all public companies and those private companies that manage public services.

3) To limit the causes of inadmissibility and Additional Provision 1.2 on special regimes of access to information by establishing a limited, proportional and tested system of harm and public interest.

4) Improve supervision and sanction mechanisms by giving greater weight to the Congress of Deputies in the appointment of the President of the Transparency Council and granting the latter inspector and sanctioning power.

Comments on commitment 1.1: Creating an Open Government Forum.

We consider it positive that the Government has committed itself to the creation of the permanent dialogue forum with civil society, thus complying with the formal requirements regarding the process established by the Open Government Partnership. However, we reiterate that it is essential that representatives of the different ministries and other institutions at the State level, such as the Transparency Council, participate in the Forum. It is difficult to promote dialogue and a space for meeting and monitoring the implementation of the Plan if a large number of those directly responsible for the implementation of the measures are not present in it.

Comments on the inclusion of non-open government commitments.

Although an effort has been made not to include measures that are not open government, there are still some commitments that belong to the field of e-government or the strengthening of human rights in third countries. This is the case with Commitment 1.4: Support for Open Government initiatives abroad; Commitment 3.3: Citizens’ Portfolio; or Commitment 3.4: About the ARCHIVE system.

Comments on Commitment 3.1: Improvement of the Transparency Portal and the Right of Access.

It is a measure in principle very positive and relevant to transparency. However, we believe that it is essential to further detail what the expansion of information subject to proactive publication will consist of. The impact of the commitment will depend on the relevance of the information to be published and how it contributes to the objectives and purposes of transparency that are accountability and knowledge by citizens of how public decisions are made and public resources are managed. The information to be published should include, at a minimum:

• Full work agendas of senior officials and management: including documents exchanged during meetings.

• The names and salaries of the potential and trusted personnel.

• Detailed travel expenses and daily subsistence allowance for each senior position and management, as already done by the CGPJ.

• Publication of all requests for access to information and their responses.

• Minutes of meetings

Comments on Commitment 3.5: Development Regulation of the Transparency Law.

We consider this commitment to be positive since almost 4 years later, the Regulation has not yet been developed. However, the regulatory development of the laws is an obligation of the Government. Therefore, in order for it to be a commitment according to an Open Government plan, we believe that it must be specified that it is going to be developed with the participation of civil society. Comment on the deadlines for the implementation of the commitments of the plan that allow the participation of civil society. Many of the commitments and measures (including some crucial for transparency and of great relevance such as 3.1) will begin to be developed and implemented before the formation of the forum and working groups. It must be ensured that the deadlines will allow an effective participation of civil society in the design, diagnosis and development of the measures that include the commitments.