Declensions of the concept of Transparency
Article 1 of Italian law 241/1990 sets the principles of administrative action.
It is based on the criteria of cost-effectiveness, effectiveness, impartiality, publicity and transparency.
Recently, with the so-called “Brunetta Reform”, particular emphasis has been placed on the last of the values cited.
Starting from a general definition, it is possible to note how the concept of transparency is closely linked to that of information: in fact, only a complete and broad circulation of information can lead to effective transparency.
It can therefore be stated that a system is transparent only when the information is knowable by all the parties that are part of that system. Bringing the example to the administrative system, it can be said to be transparent only if it ensures the maximum possible circulation of information both within the administrative system and between the latter and the outside world, so that activities are made knowable to citizens/users.
Before the reform, the administrative system knew a particular declension of the concept of transparency.
It, in law 241/1990, was a function of access to administrative documents and participation in the formation of the measure by interested parties.
The law opened administrative activity to citizens, but only to some of them — that is, to those parties who could qualify as bearers of a legitimate interest and therefore entitled, by virtue of their position, to control the activity since they were directly affected by it.
We therefore had a restricted Transparency, since information could only be acquired by some parties, and subsequent, since control could only take place once the measure had been issued and impacted the legal sphere of the interested party.
In summary, administrative activity in the framework of law 241/1990 was still a “BlackBox” activity: citizens/users could know the input and output, but not the “how” of the administrative procedure as it progressed.
With D.Lgs 150/2009, transparency and total accessibility of administrative activity is sanctioned.
We therefore have a new declension to flank the previous one.
Being able to access information and ensure its circulation leads to a diffuse type of control over the activity, since all users can observe the “how” of administrative activity regardless of the qualification of the interest of which they are bearers.
Furthermore, the control is preventive since it takes place before the issuance of the final measure and during its formation.
The reform seems to be inspired by the American doctrine of the open government initiative based precisely on transparency, participation, collaboration and trust.
The main aim is to create a sort of deterrence through which the PA is incentivised to fully respect the rules, ensuring better services in the shortest possible time: indeed, from continuous monitoring negative practices and critical points on which to intervene cannot fail to emerge.
It should hardly be specified that the new declension of transparency under D.Lgs. 150/09, although providing for diffuse control, places users not bearers of a qualified interest in the position of mere observers.
This new declension flanks but does not replace the concepts of access to documentation, participation and control by appeal — which certainly remain fundamental in a state of law and, given their incisiveness on administrative action, limited by legitimate interest.
Transparency in its new declension has different purposes compared to participation and access to administrative documents: it aims at the evaluation of administrative activity.
Having to make accessible to everyone — and in particular to subjects/users as recipients of the services offered — the activities of the public administration aims at the continuous improvement of Performance and at the possibility of being able to evaluate the operations in general terms and not limited to the possibility of appealing or not.
Applying Transparency to the performance cycle
Having defined the new scope of the concept, it is necessary to move on to analysing the methods to make total accessibility to administrative activity effective.
In the internet era, transparency and accessibility cannot but be linked to communication via the web.
The publication of various activities on Institutional Sites therefore becomes the main mode of information circulation.
D.Lgs 150/09 places particular attention on the performance management cycle, in which the political-administrative steering bodies define the objectives that the individual PA must achieve in terms of service quality and quantity, per unit of time.
The actions and objectives set as those to be achieved to ensure the due level of performance are specified in the Three-Year Plan, to be updated by 31 January each year. By 30 June the results achieved are collected in a balance sheet: the Performance Report.
Evaluation occurs both at organisation level (art. 8) and individual level (art. 9).
Clearly, an evaluation, in order to be objective, truthful and meaningful, requires evaluation bodies that are independent. In this sense, the reform has introduced CIVIT (Art. 13 — “Commission for the evaluation, transparency and integrity of public administrations”) and OIV (art. 14 — “Independent Body for the evaluation of performance”).
The first is the body that directs, coordinates and oversees the exercise of the functions of evaluation bodies. The latter are the bodies actually charged with control, with which every public administration — or association of public administrations — is required to equip itself, so that they monitor the performance cycle of the bodies on the field.
Art. 11 of the law then provides that each administration adopts a Three-Year Transparency Programme which, in addition to making the “Performance Plan” itself knowable, indicates what the body will do in order to make all its activity totally accessible — specifying how such activities will be carried out, with a step-by-step indication of all relevant actions.
The Programme remains linked to the Performance Plan and must be adopted with its updates, contextually with it (no later than 31/01 each year).
Given the ratio of the reform, the evaluations carried out cannot but be made transparent through the publication of these data on institutional websites.
This last operation poses many issues: the new PA designed by the reform requires a new architecture for institutional web platforms which today is not in line with the requirements of D.Lgs 150/09.
In order to specify and facilitate the implementation of the data required by legislation on institutional sites, the indications contained in two measures of the Ministry and of CIVIT — to which all PAs must comply in the very short period — are relevant:
- PA Sites Guidelines of 26 July 2010: indicate which data to insert in institutional sites.
- CIVIT Guidelines of 14 October 2010: indicate how the data must be inserted and specify their content, balancing the right to total accessibility with the right to confidentiality under D.Lgs 196/2003 and in particular with the principle of proportionality on which data confidentiality is based.
The CIVIT guidelines in particular further specify the concept of transparency by distinguishing static and dynamic transparency. By the former is meant the simple knowability of administrative activity, and by the latter the accessibility to activity data and the possibility of measuring the quality and quantity of services offered.
In conclusion, the new PA designed by the reform is a model to continuously aspire to through analysis of the existing, updating and continuous improvement.
In order to make the impact less traumatic, the legislator has provided two phases of the process.
In the first, PAs — once the Performance Plan, Report and Three-Year Programme have been drafted — are required to publish what is necessary using the platforms currently in use.
In the second — whose temporal horizon is set in the third year following entry into force — the PAs will have to provide for adapting their web architectures, decommissioning useless sites and registering the updated platforms with the “.gov.it” domain (which, among other things, will certify the site as compliant with the specifications provided for by the legislation in force of the decree).