Access to military documents in the light of the latest judgments and jurisprudential practices

(To Antonino Lombardi)

In recent months there have been several judgments and jurisprudential updates regarding access to documents in military administrations. On the basis of these, we want to focus on some aspects.

With a sentence of last July, the administrative judges wanted to reaffirm some principles that regulate access to documents by the military who need to know certain documents that they consider useful or decisive in the appeal experiment. According to the amendments of Law 241/1990 made by Law 15/2005, the judges stated that publicity and transparency are the rule, while the secrecy of documents is the exception. If, for the military, there is a link between the documentation object of the request for access and the complaints presented in the appeal, all cases of the so-called defensive access, without investigating the concrete usefulness that the document could bring in court1.

The Lazio-Rome Tar2, substantially rejected the reasons for the refusal of the Ministry of the Interior based on the causes of exclusion "public security and public order", "national security", "defense and military issues" and "conducting investigations into crimes and their prosecution" contained in art. 5bis c.1 letters a), b), c) and f), of Legislative Decree 33/2013 with which generalized civic access to the acts relating to the use and withdrawal of soldiers in the "red areas" was carried out in the period of lockdown.

The subject of another sentence (TAR Sicily - Catania sentence no. 2225 of 09.08.2022), concerns a person who presented a complaint to the Command of the Guardia di Finanza for illegal acts that a financier allegedly committed against him. The administrative judges have ruled that he has no right to access the disciplinary proceedings initiated against the financier if he does not demonstrate the actual "necessity" of such documents to defend his legal interests.

The Council of State in September 2021 endorsed the decision of the administrative court which had confirmed the legitimacy of the refusal issued by the military administration regarding the request for access of a navy officer, subsequently acquitted, with which it requested to take vision and to extract copies of "disciplinary measures taken against the military portrayed in numerous similar videos on the net", listing in the aforementioned application "purely by way of example" some of these videos.

The institution of the law n. 241 of 1990 most studied and most frequently examined by the administrative judiciary is represented by right of access to documents, understood both as the right to view documents and as the right to obtain a copy. As regards the right of access with reference to the military administration, pursuant to paragraph six of art. 1 of the Code of the military system and of art. 1024 of Presidential Decree 90/2010, art. 10 and art. 22 and following of Law 241/1990 and, pursuant to 1024 cit., Presidential Decree 184/2006, ie the regulation governing access to administrative documents, and articles 1048 and following of Presidential Decree 90/2010 which identify the documents of the military administration removed from the right of access and finally the Consolidated Law on privacy

Even in the military administration, the right of access is not a popular action, a generalized control of the work of the Public Administrations, due in favor of any citizen but it is a right recognized in favor of both the recipient of the final provision and the counter-interested party in the adoption of this provision, he cds internal access ex art. 10 letter a) of Law 241/1990, both in favor of all private subjects, including those with public or widespread interests, that have a direct, concrete and current interest, corresponding to a situation legally protected and connected to the document to which access is requested, the so-called external access pursuant to art. 22 paragraph first letter b) of Law 241/1990 in the text amended by law no. 15 of 20053. The citizen entitled to document access must therefore be holder of a juridically relevant subjective situation (not necessarily coinciding with a right or a legitimate interest but also corresponding to a mere expectation or a widespread interest4) and must be the bearer of a direct, concrete and current interest, a concept reaffirmed by art. 2 of Presidential Decree 184/2006.

Regarding the first requirement, direct interest, it takes on a double value, both in terms of legitimacy and of interest; it must be considered that the request for access must come from the person directly involved in the proceedings and not from others (the exception is the delegation to another person, such as the lawyer) and there must be a direct relationship between the requested document and the protection of a juridically relevant subjective situation of which the applicant, upon access, is the bearer5.

In any case, this underlying position legitimizing access must not, however, coincide with a merely emulative interest or the result of simple curiosity, nor can it be a mere generic interest in the widespread control of administrative action, a popular action. , as confirmed by art. 24 third paragraph of Law 241/1990.

In the military administration, without prejudice to the problem of the possible secretation of the requested document, the existence of a legally relevant, concrete and personal interest is evident in the following and frequent cases: request for access to the disciplinary proceedings against a soldier by the latter; request for access to the characteristic and serial documentation of colleagues by an officer assessed unfavorably during the advancement stage; request for access by a soldier to the relevant documents in the investigation of their transfer request; request for access to the documents of your personal file; request for access by a participant in a competition for access to the competition documents in the Armed Forces, for example, the internal minutes concerning the evaluations that led to the rejection; request for access, once an inspection has been completed by a soldier, to the records of the inspector of the Defense Administration who has carried out an investigation.

On the basis of art. 22 paragraph first letter d) and 25 paragraph second of law no. 241 of 1990, the interested party must submit the request to the Administration that formed the document or that holds it permanently (therefore all the acts used by the Public Administration and, therefore, also any acts of private subjects merged into a administrative procedure). It follows that requests for access not only to acts adopted by the same but also to acts adopted by other administrations, for example the Ministry of Justice, the Interior, Inpdap, etc. can be sent to the Military Administration.

There is a Public relations office. The application for access may be presented, as an alternative to the office that adopted the deed or that holds it permanently, if known, at the URP which, if it is not an unequivocally accessible document already at the URP itself, for example the ranking of a competition in which the applicant has participated, will forward it to the competent central or peripheral office.

The documents requested must, of course, already exist, where the request, formulated pursuant to art. 22 and following of the law n. 241 of 1990, is aimed at obtaining information and clarifications, under the guise of a request pursuant to art. 22 of the law n. 241 of 1990, or to view documents not yet processed or for which the investigation is still in progress, the same cannot be accepted as inadmissible6.

We report the case of a few years ago in which a brigadier of the carabinieri following a request for transfer pursuant to art. 398 of the General Regulations of the weapon and ex art. 42-bis of Legislative Decree 151/2001, the request for access to documents consisting of the staffing tables and the movements of personnel entering and leaving Campania and Emilia Romagna was rejected. The TAR accepts the appeal but the Council of State says it is "The first reason for refusal opposed by the Weapon to the request for access was unfounded, as the latter had no exploratory purposes at all, or to a generalized control over the work of the administration to which it belongs, but to a verification, punctually and exactly circumscribed and delimited by the applicant's interest in the transfer, on the effectiveness of the organic needs opposed to him ". The college also admonished the administration concluding that "The legislation on access, in addition to satisfying a general requirement of transparency," aims "to reduce litigation, avoiding the poor practice of the past ..."7

Among the issues most often examined by the administrative judiciary in relation to the notion of document, the issue of access to internal documents, fully accessible pursuant to art. 22, if not expressly classified, if trained or used by the Administration, even if, according to the most recent jurisprudence, not used for the purposes of the activity with external relevance.

Such internal acts, that are, not having the ability to affect legal situations, are very numerous during a procedural investigation, for example internal correspondence, opinions, technical evaluations, minutes of a board of directors, complaints, authorization, reports inspections, etc., and their vision can be decisive for the interested party in consideration of their ability to affect the final measure. A defect in the internal act, for example, is based on an erroneous fact, or on an untruthful testimony or on an abrogated or misinterpreted rule, could have, if adequately known, a disabling effect on the final provision.

In the past, the problem ofaccessibility to documents of a private nature. The Interpretative Approach of the Council of State in Plenary Meeting8 which had established that the private law acts of the Public Administration were also accessible when teleologically connected to the management, even indirectly, of a service or to the care of the public interest, has now been verbatim confirmed by art. 22 paragraph first letter d), amended by law no. 15 of 2005, which offers, as seen, a definition of an administrative document regardless of the public or private nature of their substantive discipline9.

The topic under discussion is vast and exciting, as are the considerations to be made regarding the procedures and methods of access. We will propose them, eventually, later.

1 Council of State Section II, sentence no. 5589/21

2 section I-ter, 3 June 2021 n. 6583

3 Scoca FG, Administrative law, Giappichelli Editore, Turin, 2015 p. 283

4 Chieppa R - Giovagnoli R.,Administrative Law Manual, p. 681

5 Plenary Meeting of the Council of State 24 April 2012, n.7 in

6 Again with reference to the naval officer (taken up in dance steps during an oath), the Council of State held that the formulation of the request for access to them actually has an exploratory purpose, asserting, moreover, that the request proves to be "Preordained to allow a generalized control of the work of the PA". A further profile emerges, again according to the College, "Which demonstrates the exploratory nature of the access, in one with its inadmissibility for having as its object a facere, rather than a giving: in fact, today's appellant aims not to obtain a copy of certain measures, as to obtain information and therefore data, in fact wanting to know whether, for episodes similar to the one that concerns you, disciplinary proceedings have been instituted against the military who took part in them or not. She therefore aims to provoke a response from the PA on this point, which obviously hopes negative, in order to be able to assert an alleged discrimination against her, which means that with the request for access she intends to stimulate the formation of a new act of the PA, having a certain content (precisely: the response to its request that there are no provisions and / or acts of the type requested). The case in question can, therefore, be traced back to the jurisprudential teaching according to which "the request for access is inadmissible, which presupposes a" facere "consisting in the preparation of specific analytical lists of data which, although obtainable from deeds, documents and of support that the public administration has, imply the carrying out of new and additional activities with respect to those to which the administrative structures are normally called ".

7 Council of State Section IV Sentence no. 489/2016

8 Plenary Meeting of the Council of State, April 22, 1999, n.5 in The Italian Forum, n. 3, p. 305

9 Scoca FG,Op. Cit., p. 28

Photo: US Marine Corps