The balance between the right to access to administrative documents of public procedures and technical and trade secrets: administrative activity nature and legal protection techniques

Abstract

The paper analyses the relationship between the right to access to administrative documents of a public procedure for defensive needs and the confidentiality needs arising from the need to protect information of a competitor containing technical and trade secrets, which is provided by art. 53, paragraph 5, letter a) and paragraph 6 of Legislative Decree no. 50/2016. After some brief premises on the legislative discipline, the paper analyzes in particular the two aspects most subject to interpretative problems: what are the assumptions and obligations of the parties requesting access and opposing the need for confidentiality and what is the nature of the activity that the administration must perform (whether it is discretionary or not) and what are the consequences in terms of breadth of judicial protection. The analysis of the case law will show several critical points in the theses mainly applied by the national courts, thus requiring a critical analysis on the basis of the general and fundamental concepts of the subject, which will lead to recognising that the applicant is not required to provide particularly stringent proof of the document's defensive requirements, and, more important, that the activity of the administration is not technically discretionary, since the administration does not have the power to balance public and private interests, with the consequent fullness of judicial protection, including the judicial exibition order of the document to the applicant.