Key Benefits:
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PROPOSED LAW NO. 49 /X
Exhibition of Motives
Directive No. 2003 /98/CE of the European Parliament and of the Council of November 17
of 2003, relating to the reuse of public sector information is aimed at
essential to the minimum harmonisation of national rules and practices achievable
of public sector documents, with a view to promoting the proper functioning of the
internal European market and the appropriate development of the information society in the
European Community.
This harmonisation of standards at the Community level part of the assumption that the
documents produced and held by the entities that make up the public sector
correspond to passable information from being treated and explored with reflections
economic evident by the European private companies, thus contributing to the
development of services at the community scale-one of the main objectives of the
establishment of a European internal market-, for the economic growth of the
companies and, consequently, for the creation of employment.
Bearing in mind that the regime of the Directive is based on the access regimes to the
existing administrative documents in the various Member States, and which does not leave
of being a condition of authorization for the respective reuse of permission, by law, of the
general access to such documents, it was deemed appropriate that their transposition if
carry out in the context of the regulation of the exercise of the right of access to
administrative documents.
It becomes thus unequivocal to be also applicable in this context, specifically,
the limits relating to internal and external security, secrecy of justice and documents
nominations, the possibility of refusing access to documents whose communication puts
in cause trade secrets, industrial or about the internal life of companies and the
prohibition on the reuse of information with disrespect of copyright and the
industrial property rights.
In parallel, it is clarified that the remission made by Law No 65/93 of August 26,
for the legislation on the protection of personal data, covers either the documents
referring to personal data with partial or fully automated treatment, or the
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documents referring to personal data contained in manual files or to these
intended with non-automated treatment. Thus harmonizes the regime of the Law of
Access to Administrative Documents with the provisions of Article 4 of Law No 67/98,
of October 26, with the scheme enshrined in Directive No 95 /46/CE of Parliament
European and Council, of October 24, 1995 and with the constant provision of the n.
7 of Article 35 of the Constitution of the Portuguese Republic.
In strict accordance with Directive No 2003 /98/CE, the present proposed law
takes over as a clear objective to promote the reuse of documents held or
drawn up by the public sector, restricting the grounds for permissible refusal to
violation of legal provisions, specifically of the provisions of this diploma or
of the applicable legal access regime. That aim is, still, visible in the new rules
approved in respect of the values to be charged for the reuse of documents, which
seek to provide an objective criterion to the practice of public bodies in this matter, and,
well so, in the standards that, not vetting the imposition of conditions with regard to the
forms of consenting use, recommend the pre-establishment and advertise of the
same, to make it more transparent and accessible the rules and possibilities of
reuse of public documents.
In parallel to the introduction of provisions in this Law specifically applicable to the
regime of the reuse of public sector documents, it has chosen, whenever possible
and appropriate, by introducing in the diploma changes of general scope, in order to guarantee the
simplification, harmonisation and articulation of the regimes of access and reuse of the
public sector documents.
They are in this situation the provisions that aim to promote the establishment of
practical instruments that make it easier to know and to obtain those
documents, making use of, where possible, the adverticitation and sending of the same
by electronic means.
With the present diploma also took advantage of the ensejo to adapt the scheme of
contentious reaction to the new rules of administrative litigation, consecrated in the
Code of the Process in the Administrative Courts.
The necessary representations were promoted to the UMIC hearing-Agency for the
Knowledge Society, I.P., of the Commission on Access to Documents
Administrative (CADA), of the National Data Protection Commission (CNPD), of the
Administrative Modernization Coordination Unit (UCMA), of the Institute of the
Industrial Property, Competition Authority and the Office of the Law of
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Author.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Subject
This Law amenages the Act No. 65/93 of August 26, with the wording introduced by the
Law No. 8/95 of March 29 and by Law No. 94/99 of July 16, transposing to the
legal order national a Directive No 2003 /98/CE, of the Parliament and of the Council, of
November 17, 2003, concerning the reuse of information from the public sector.
Article 2.
Amendment to Law No. 65/93 of August 26
Articles 1, 2, 3, 9, 11, 12, 17, 17, and 20, 26 and 20 of Law No. 65/93 of 26 of
August, amended by Law No 8/95 of March 29 and by Law No. 94/99 of July 16,
shall be replaced by the following:
" Article 1.
[...]
Access to and reuse of administrative documents are ensured
by the Public Administration in accordance with the principles of advertising, of the
transparency, equality, justice and impartiality.
Article 2.
[...]
1-A This Law regulates access to documents relating to activities
developed by the entities referred to in Article 3, without prejudice to the
provisions of the legislation on access to information in respect of
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environment.
2-A present law further regulates the reuse of documents relating to
activities developed by the entities referred to in Article 3,
transposing to the national legal order the Directive No 2003 /98/CE, of the
Parliament and of the Council of November 17, 2003 on the
reuse of information from the public sector.
3-[ Previous Article No 2 ].
Article 3.
[...]
1-[...].
2-The provisions of this Law are still applicable to the documents
held or drawn up by any entities endowed with personality
legal that have been created to satisfy in a particular way
needs of general interest, without an industrial or commercial character, and
in respect of which one of the following circumstances occurs:
a) The respective activity is financed majority-by
any of the entities referred to in the preceding paragraph or in the present
number;
b) The respective management is subject to a control by
any of the entities referred to in the preceding paragraph or in the present
number;
c) The respective bodies of administration, steering or
supervision to be composed, in more than half, by members
designated by some of the entities referred to in the preceding paragraph
or in this paragraph.
Article 7.
[...]
1-[...].
2-[...].
3-[...].
5
4-[...].
5-[...].
6-[...].
7-Access to the notarial and register documents, to the documents of
civil and criminal identification, to documents referring to personal data
with full or partially automated treatment, to the documents
referring to personal data contained in manual files or to these
intended with non-automated treatment and documents
deposited in historical archives is governed by own legislation.
Article 9.
[...]
1-The right to rectify, supplement or delete inaccurate personal data,
insufficient or excessive is exercised in accordance with the provisions of the Law of
Protection of Personal Data.
2-[...].
Article 10.
Refusal of access
[ Previous Article No 1 ]
Article 11.
[...]
1-A Public Administration publishes, by appropriate form and whenever
possible electronically:
a) [...];
b) [...].
2-[...].
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CHAPTER II
Exercise of the right of access and reuse of public sector documents
SECTION I
From the right of access
Article 12.
[...]
1-[...].
2-[...].
3-Informatized documents are sent through mail
electronic or through another means of electronic data transmission,
where possible and appropriate to the intelligibility and reliability of your
content and in strictly corresponding terms with that of the content of the
register.
4-[...].
5-A The required entity does not have a duty to create or adapt documents
to satisfy the application, nor the obligation to provide extracts from
documents, should this involve a disproportionate effort, which
exceed the simple handling of them.
Article 13.
[...]
1-Access to documents must be requested in writing through
application whose model must be approved by joint poration of the
ministers responsible for the areas of Finance, the Administration
Public and Administrative Modernization.
2-Access to documents can be requested by means of means
electronic, in the terms to be defined by joint office of the ministers
responsible for the areas of Finance, Public Administration and the
Administrative Modernization.
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Article 17.
Contentious reaction
When no full satisfaction is given to the application for access formulated in the
the terms of this Law, the provisions of Articles 104, 105, 106, shall apply.
107. and 108 of the Code of Procedure in the Administrative Courts.
Article 20.
Competence
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) Instruct the counterordinance processes.
2-[...].
3-[...].
4-[...]. "
Article 3.
Addition to Law No. 65/93 of August 26
They are deferred to Law No. 65/93 of August 26, as amended by Law No. 8/95, 29 of
March and by Law No. 94/99 of July 16, Articles 17-A, 17-B, 17.-C, 17.
17.-And, 17.-F, 17.-G, 17.-H, 17.-I, 22, 23, 24 and 25, with the following wording:
" SECTION II
From the reuse of documents
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Article 17-A
General principle
1-The documents held or drawn up by the entities referred to in the article
3., whose access is authorized under this Act, may be
reused by natural or legal persons for purposes other than the
end of public service for which they were produced.
2-The provisions of this section do not undermine the use of texts
of conventions, of laws, of regulations and of reports or of decisions
administrative, judicial or any organs or authorities of the
State or the Administration, as well as the use of the translations
officers of these texts.
3-The provisions of this Section shall not apply to the documents
held or prepared by:
a) Public service broadcasting companies, their subsidiaries and others
organisms that fulfil functions of service broadcasting
public;
b) Educational and research establishments, including, when
pertinent, organizations created with a view to the transfer of
research results;
c) Public or private legal persons who dedicate themselves to the
provision of cultural activities, specifically museums,
libraries, archives, orchestras, operas, bailed companies and
of theater.
Article 17-B
Application for reuse
1-A reuse of documents depends on express permission of the
entity that detains them, upon request formulated by the applicant.
2-The application for reuse is formulated in the same application in which it is
requested access to the document, the model of which must be approved in the
terms of Article 13 para.
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3-When the reuse of documents is intended for educational purposes or
research and development, the applicant shall indicate it
expressly.
Article 17-C
Documents deleted
They may not be the subject of a request for reuse:
a) Documents drawn up in the exercise of a management activity
private of the entity concerned;
b) Documents whose copyrights or related rights belong to
to third parties or whose reproduction, diffusion or use may
set up unfair competition practices.
Article 17-D
Response of the required entity
1-A entity to whom the application for reuse of the
document shall, in the same period as the one provided for in Article 15 (1):
a) Authorize the reuse of the document; or,
b) State the reasons for refusal, total or partial, of reuse of the
document and which means of guardius of which the applicant has
against that decision.
2-The request for reuse of the document can only be dismissed with
grounds in the violation of legal provisions, not least of any
of the provisions of this diploma.
3-The duty to indicate the reasons for refusal understands the person's nomination
singular or legal holder of the copyright or related rights
on the document, when that title constitutes the foundation of the
refusal of the intended reuse.
4-The time frame provided for in paragraph 1 may be extended once, for equal period,
in the cases of extensive or complex applications, upon notification to the
applicant in the 5 days subsequent to receipt of the application.
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5-The deferrability of the application for the reuse of documents containing
personal data becomes subject, as the case may be, to the provisions of this Law
or in the Personal Data Protection Act as to the access to such
documents.
Article 17-E
Conditions of reuse
1-A permission granted in the terms of the previous article may be
subordinate to the observance of certain conditions of reuse.
2-A reuse of documents may still be subordinated to payment
on the part of the applicant, under the terms and conditions to be fixed by portaria
joint of the ministers responsible for the areas of Finance, the
Public Administration and Administrative Modernization, not
the total value charged for access and reuse exceeds costs
supported with the collection, production, reproduction and dissemination of the
respective document, add to reasonable profitability, having
in view the recovery of possible investments and the good quality of the
service.
3-In the setting of the values to be charged under the preceding number, the
required entity shall be based on costs during the financial year
normal accounting calculated in accordance with the principles
applicable accounting.
4-Differential price regimes should be introduced depending on the
documents are reused for commercial or non-commercial purposes,
being free to reuse documents for educational purposes or from
research and development.
5-The conditions of reuse and the values charged shall not restrict
unnecessarily the possibilities of reuse, not the
entity required, by that way discriminate against categories of reuse
equivalents or limit the competition.
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Article 17-F
Advertising
The conditions for reuse and the applicable prices, including the deadline and the
form of the respective payment, are pre-established and advertised,
where possible by electronic means, and the basis of
calculation of the values to be collected whenever requested by the applicant.
Article 17-G
Prohibition of exclusive agreements
1-The conclusion of exclusive agreements for the reuse of
documents, with the exception of cases in which the constitution of a
exclusive right is required for the provision of a service of interest
public.
2-The exclusive agreements entered into under the previous number, well
as the respective statement of reasons, they should be advertised, whenever
possible by electronic means.
3-The reasons underlying the constitution of an exclusive right shall be
object of a periodic examination, to be carried out at least from three in three
years.
4-The existing exclusive agreements that do not comply with the provisions of paragraph 1
lapse on December 31, 2008.
Article 17-H
Subpoena for the reuse of documents
Without prejudice to other guarantees provided for in the law, when it is not given
full satisfaction to the application for reuse formulated pursuant to the
this section, the person concerned may apply to the administrative court
competent the subpoena of the requested entity, being correspondingly
applicable the provisions of Article 17 para.
Article 17-I
Disclosure of available documents for reuse
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1-The entities provided for in Article 3 shall publicize, where
possible by electronic means, lists of stock of the documents
available for reuse.
2-A information provided for in the preceding paragraph shall be, as soon as possible,
organized in a decentralized stock portal with a view to
facilitate the search for available documents for reuse.
CHAPTER IV
Counter-ordering
Article 22.
Counter-ordering
1-Practice counterordinance punishable with fine the natural persons or
collective that:
a) Re-use public sector documents without permission from the
competent entity;
b) Reuse public sector documents without observing the
reuse conditions set out in accordance with paragraph 1 of the
article 17-And;
c) Reuse public sector documents without them having
proceeded to payment of the value set pursuant to n. ºs 2 and 3
of Article 17.-E.
2-The offences set out in the 2 a) and c) of the previous number are
punishable by the following fines:
a) By treating a natural person, at the minimum of € 300.00 and in the
maximum of € 3,500.00;
b) Dealing with a legal person, at the minimum of € 2,500.00 and in the
maximum of € 25,000.00.
3-A offence provided for in paragraph b) of paragraph 1 is punishable by the following
fines:
a) By treating a natural person, at the minimum of € 150.00 and in the
maximum of € 1,750.00;
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b) Dealing with a legal person, at the minimum of € 1250.00 and in the
maximum of € 12,500.00.
Article 23.
Negligence and attempt
The negligence and the attempt are always punished in the counter-ordinations
provided for in the previous article.
Article 24.
Application of fines
1-A The application of the fines provided for in this Law shall compete with the President
of CADA, after instruction and deliberation of the Commission.
2-A deliberation of CADA, after approval by the President,
constitutes executive title, in case it is not to be impugned in the legal period.
Article 25.
Target of revenue collected
The amount of the importances charged, as a result of the application of the
fines, revert:
a) In 40% for CADA;
b) In 40% for the coffers of the state; and,
c) In 20% for the entity referred to in Article 3 aggrieved with the practice
of the offence. "
Article 5.
Republication
The Act No. 65/93 of August 26, with the amendments made by Law No. 8/95, of
March 29 and by Law No. 94/99, of July 16, is republished in annex.
Seen and approved in Council of Ministers of November 24, 2005
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The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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ANNEX
Regime of access and reuse of public sector documents
CHAPTER I
General provisions
Article 1.
Open administration
The access and reuse of administrative documents are ensured by the
Public Administration in accordance with the principles of advertising, transparency,
equality, justice and impartiality.
Article 2.
Subject
1-A This Law regulates access to documents relating to developed activities
by the entities referred to in Article 3, without prejudice to the provisions of the relative legislation
to access to information in the environment.
2-A present law further regulates the reuse of documents relating to activities
developed by the entities referred to in Article 3, by transposing to the order
legal national a Directive No 2003 /98/CE, of the Parliament and of the Council, of 17 of
November 2003, concerning the reuse of information from the public sector.
3-The exercise regime of the right of citizens to be informed by the
Administration on the progress of the processes in which they are directly
interested and to know the definitive resolutions that on them are taken
appears in own legislation.
Article 3.
Scope
1-The documents to which the previous article is reported are the ones that have origin or are
held by organs of the State and Autonomous Regions carrying out functions
administrative, organs of public institutes and public associations and bodies
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of local authorities, their associations and federations and other entities in the exercise
of powers of authority, in the terms of the law.
2-The provisions of this Law are still applicable to the documents held or
drawn up by any entities endowed with legal personality that have
been set up to meet in a specific way needs of general interest,
without an industrial or commercial character, and in relation to which one of the
following circumstances:
a) The respective activity is funded majority-by some of the
entities referred to in the preceding paragraph or in this paragraph;
b) The respective management is subject to a control by some of the
entities referred to in the preceding paragraph or in this paragraph;
c) The respective bodies of administration, steering or surveillance are
compounds, in more than half, by members designated by some of the
entities referred to in the preceding paragraph or in this paragraph.
Article 4.
Administrative documents
1-For the purpose of the provisions of this diploma, they are considered:
a) Administrative documents: any graphic information media,
sound, visuals, computer or records of another nature, elaborated or
held by the Public Administration, specifically processes, reports,
studies, opinions, actas, autos, circulars, circular-orders, orders of
service, internal normative dispatches, instructions and guidelines of
legal or framework interpretation of the activity or other elements of
information;
b) Nominative documents: any information media containing
personal data;
c) Personal data: information about natural person, identified or
identifiable, which contain appreciations, value judgements, or that are
covered by the reservation of the intimacy of private life.
2-Do not consider administrative documents, for the purposes of this diploma:
a) The personal notes, sketches, apartments and other records of nature
similar;
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b) The documents whose elaboration does not release from the administrative activity,
in particular concerning the meeting of the Council of Ministers and Secretaries
of state, as well as its preparation.
Article 5.
Internal and external security
1-Documents containing information whose knowledge is assessed as
may put at risk or cause damage to the internal and external security of the State stay
subject to interdiction of access or access under authorization, during the time
strictly necessary, through classification in the terms of specific legislation.
2-The documents referred to in the preceding paragraph may be freely consulted,
pursuant to this Law, after its declasm or the course of the
validity of the act of classification.
Article 6.
Secret of justice
Access to documents referring to matters in secret of justice is regulated by
own legislation.
Article 7.
Right of access
1-Everyone has the right to information upon access to administrative documents of
non-nominative character.
2-The right of access to administrative documents comprises not only the right to
obtain their reproduction, as well as the right to be informed about their existence and
content.
3-The filing of administrative documents in archives is without prejudice to the exercise, the
all the time, from the right of access to the said documents.
4-Access to constant documents from uncompleted processes or to documents
preparatory to a decision is deferred until the making of the decision, the filing of the
process or in the course of one year after it was drawn up.
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5-Access to surveys and syndications takes place after the course of time for
possible disciplinary procedure.
6-The documents referred to in this Law are the subject of partial communication
where it is possible to expunge the information relating to the reserved matter.
7-Access to the notarial and register documents, to the identification documents
civil and criminal, to documents referring to personal data with full treatment or
partially automated, to the documents referring to personal data contained in
manual files or these intended with non-automated treatment and the
documents deposited in historical archives are governed by own legislation.
Article 8.
Access to nominative documents
1-Nominative Documents are communicated, upon prior application, to the
person to whom the data relate to, as well as to third parties who from that obhave
written authorization.
2-Out of the cases provided for in the preceding paragraph the nominative documents are still
communicated to third parties that demonstrate direct, personal and legitimate interest.
3-A communication of health data, including genetic data, to the respective holder
is done through doctor by he assigned.
Article 9.
Correction of personal data
1-The right to rectify, supplement or delete inaccurate, insufficient personal data
or excessive is exercised in the terms of the provisions of the Data Protection Act
Personal.
2-Only the corrected version of the personal data is liable to use or communication.
Article 10.
Refusal of access
The Administration may refuse access to documents whose communication it puts on
causes trade secrets, industrial or about the internal life of companies.
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Article 11.
Publications of documents
1-A Public Administration publishes, by appropriate form and whenever possible
electronically:
a) All documents, specifically internal normative dispatches,
circulars and guidelines, which have a framework of the activity
administrative;
b) The enunciation of all documents that conduct interpretation of law
positive or description of administrative procedure, mentioning,
specifically, its title, matter, date, origin and place where they may be
queried.
2-A publication and the announcement of documents shall be carried out with periodicity
maximum of six months and in moulds that encourage the regular access of the
interested.
CHAPTER II
Exercise of the right of access and reuse of public sector documents
SECTION I
Right of access
Article 12.
Form of access
1-Access to the documents exercises through:
a) Free consultation, carried out in the services that detain them;
b) Reproduction by photocopying or by any technical means, specifically
visual or audible;
c) Pass of certificate by the services of the Administration.
2-A reproduction under the terms of the ( b) of the preceding paragraph will be in an exemplar,
subject to payment, by the person who requests it, of the financial burden strictly
corresponding to the cost of the materials used and the service provided, to be fixed by
decree-law or regional legislative decree, as the case may be.
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3-The computerized documents are sent via e-mail or through
of another means of electronic data transmission, where possible and appropriate to the
intelligibility and reliability of its content and in strictly terms
corresponding to that of the contents of the register.
4-When the reproduction provided for in paragraph 1 can cause damage to the target document, the
interested, at the expense of their and under the direction of the service holder, can promote the
manual copy or the reproduction by any other means that does not harm your
conservation.
5-A The required entity does not have a duty to create or adapt documents to satisfy
the application, nor the obligation to provide document extracts, should this involve
a disproportionate effort, which exceeds the simple handling of them.
Article 13.
Form of the application
1-Access to documents must be requested in writing through application
whose model must be approved by joint porterie of the responsible ministers
by the areas of Finance, Public Administration and Modernization
Administrative.
2-Access to documents can be requested through electronic means, in the
terms to be defined by jointly of the ministers responsible for the areas of Finance, da
Public Administration and Administrative Modernization.
Article 14.
Responsible for access
In each ministerial department, regional office, municipality, institute and association
public exists an entity responsible for compliance with the provisions of the present
law.
Article 15.
Response of the Administration
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1-A entity to whom the application for access to a document has been directed must, in the
period of 10 days:
a) Communicate the date, place and mode to take effect of the consultation, carry out the
reproduction or obtain the certificate;
b) State, in accordance with Art. 268 (2) of the Constitution and of this Law, the
reasons for the refusal, total or partial, of the access to the intended document;
c) Inform you that you do not have the document and, if it is from your knowledge, what the
entity that owns it or remit the application to this, communicating the fact
the person concerned;
d) Send to the applicant copy of the application, addressed to the Access Commission to the
Administrative Documents, for consideration of the possibility of access to the
information recorded in the target document.
2-A entity to whom it was directed application for access to the nominative document of
third, unaccompanied by written permission of this, requests the opinion of the
Access Committee for Administrative Documents on the possibility of
disclosure of the document, sending the applicant copy of the application.
3-The same opinion may still be requested whenever the entity to whom it was
directed application for access have doubts about the qualification of the document,
about the nature of the data to be revealed or about the possibility of its revelation.
4-The request to appear formulated in accordance with paragraphs 2 and 3 shall be accompanied by
copy of the application and of all information and documents that contribute to
conveniently instruct him.
Article 16.
Right of complaint
1-The person concerned may direct to the Commission on Access to Administrative Documents,
within 20 days, complaint against the undue, the lack of a decision or
limiting decision of the exercise of the right of access.
2-A The Commission on Access to Administrative Documents has the 30-day deadline for
draw up the corresponding assessment report of the situation by sending it, with the
due conclusions, to all those interested.
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3-Received the report referred to in the preceding paragraph, the Administration shall communicate
to the person concerned for his final decision, grounded, within 15 days, without what if
considers there to be a lack of decision.
Article 17.
Contentious reaction
When no full satisfaction is given to the application for access formulated pursuant to the
this law, the provisions of Articles 104, 105, 106, 107 and 108 of the Act shall apply.
Code of Procedure in the Administrative Courts.
SECTION II
From the reuse of documents
Article 17-A
General principle
1-The documents held or drawn up by the entities referred to in Article 3, whose
access is authorised under this Act, may be reused by persons
natural or legal for purposes other than the end of public service for which
were produced.
2-The provisions of this section do not undermine the use of texts of
conventions, of laws, of regulations and of reports or administrative decisions,
judicial or any organs or authorities of the State or Administration, well
as the use of the official translations of these texts.
3-The provisions of this section shall not apply to the documents held or
elaborated by:
a) Public service broadcasting companies, their subsidiaries and other bodies
that fulfil functions of public service broadcasting;
b) Educational and research establishments, including, when relevant,
organizations created with a view to the transfer of research results;
c) Public or private legal persons who are dedicated to the provision of
cultural activities, specifically museums, libraries, archives,
orchestras, operas, bail-out and theatre companies.
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Article 17-B
Application for reuse
1-A reuse of documents depends on express permission of the entity that the
detain, upon request formulated by the applicant.
2-The application for reuse is formulated in the same application in which the
access to the document, the model of which must be approved under Rule 13.
3-When the reuse of documents is fearless for educational or research purposes
and development, the applicant shall expressly indicate it.
Article 17-C
Documents deleted
They may not be the subject of a request for reuse:
a) Documents drawn up in the exercise of a private management activity of the
entity in question;
b) Documents whose copyrights or related rights belong to third parties
or whose reproduction, diffusion or use may set up practices of
unfair competition.
Article 17-D
Response of the required entity
1-A entity to whom the application for reuse of the document has been directed shall,
at the same time as the one provided for in Article 15 (1):
a) Authorize the reuse of the document; or
b) State the reasons for refusal, in whole or in part, of reuse of the document and
what the means of guardian is available to the applicant against that decision.
2-The request for reuse of the document may only be dismissed on the grounds of the
violation of legal provisions, particularly of some of the provisions of the present
diploma.
3-The duty to indicate the reasons for refusal shall comprise the indication of the natural person or
holder of the copyright or related rights on the document,
when such a title constitutes the ground of the refusal of the intended reuse.
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4-The time frame provided for in paragraph 1 may be extended once, for equal period, in cases
of extensive or complex applications, upon notification to the applicant in the 5 days
subsequent to the receipt of the application.
5-The deferrability of the request for the reuse of documents containing data
personal shall be subject, as the case may be, to the provisions of this Law or in the Law of
Protection of Personal Data as to the access to such documents.
Article 17-E
Conditions of reuse
1-A permission granted pursuant to the preceding Article may be subject to the
observance of certain conditions of reuse.
2-A reuse of documents may still be subordinated to payment by the
applicant, under the terms and conditions to be fixed by joint office of the Ministers
responsible for the areas of Finance, Public Administration and Modernization
Administrative, not the total value charged for access and reuse
exceed the costs borne with the collection, production, reproduction and dissemination of the
respective document, plus reasonable profitability, with a view to
recovery of possible investments and the good quality of service.
3-In the setting of the values to be charged under the preceding paragraph, the entity required
should be based on costs during the calculated normal accounting year of
agreement with the applicable accounting principles.
4-Differential price regimes should be introduced depending on the documents
are reused for commercial or non-commercial purposes, being free to
reuse of documents for educational or research purposes and
development.
5-The conditions of reuse and the values charged shall not restrict
unnecessarily the possibilities of reuse, not the entity
required, by that way, to discriminate against equivalent reuse categories or to limit
the competition.
Article 17-F
Advertising
The conditions for reuse and the applicable prices, including the deadline and the manner of the
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respective payment, are pre-established and advertised, where possible by way of
electronics, and the basis of calculation of the values to be collected where it is always stated
requested by the applicant.
Article 17-G
Prohibition of exclusive agreements
1-The conclusion of exclusive agreements for the reuse of documents, with
the exception of cases in which the constitution of an exclusive right is necessary for the
provision of a service of public interest.
2-The exclusive agreements entered into under the preceding paragraph, as well as the
respective statement of reasons, should be advertised, where possible by way of
electronics.
3-The reasons underlying the constitution of an exclusive right shall be the subject of
a periodical examination, to be performed at least every three years.
4-Existing exclusive agreements that do not comply with the provisions of paragraph 1 lapse in
December 31, 2008.
Article 17-H
Subpoena for the reuse of documents
Without prejudice to other guarantees provided for in law, when not given full
satisfaction to the application for reuse formulated pursuant to this section, the
interested may apply to the competent administrative court for subpoena
required entity, being correspondingly applicable to the provisions of Article 17.
Article 17-I
Disclosure of available documents for reuse
1-The entities provided for in Article 3 shall advertise, where possible by way of
electronic, stock lists of the documents available for reuse.
2-A information provided for in the preceding paragraph shall be, as soon as possible, arranged
in a decentralized stock portal with a view to facilitating the demand for
documents available for reuse.
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CHAPTER III
From the Commission on Access to Administrative Documents
Article 18.
Commission
1-The Commission on Access to Administrative Documents (CADA) is created, to whom
it shall be responsible for compliance with the provisions of this Law.
2-A CADA is an independent public entity, which works with the Assembly of the
Republic and has its own technical and administrative support services.
Article 19.
Composition and status of CADA
1-A CADA is composed of the following members:
a) A judge adviser to the Supreme Administrative Court, designated by the
Top Council of the Administrative and Fiscal Courts, which presides;
b) Two deputies elected by the Assembly of the Republic, being one under proposal
of the parliamentary group of the largest party that supports the Government and the other under
proposal of the largest opposition party;
c) A professor of law appointed by the President of the Assembly of
Republic;
d) Two personalities designated by the Government;
e) A representative of each of the Autonomous Regions, designated by the
respective Governments of the Regions;
f) A personality designated by the National Association of Municipalities
Portuguese;
g) A lawyer appointed by the Order of Lawyers;
h) A designated member, from among its vowels, by the National Commission of
Protection of Data.
2-All holders can make themselves replaced by a substitute member, designated
by the same entities.
3-The mandates are for two years, renewable, without prejudice to their cessation when
end the functions by virtue of which they have been assigned.
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4-The President shall earn the remuneration and other perks to which he is entitled as a judge
adviser to the Supreme Administrative Court.
5-With the exception of the President, all members may exercise their mandate in
accumulation with other functions.
6-The rights and perks of CADA members are fixed in the regulatory diploma
of this Act, being applicable to CADA the provisions of Article 11 (1), of the
n. points 2, 4 and 5 of Article 13 (15) of the Article a) and c) of paragraph 1 and paragraph 2 of the
Article 16º and Article 18 (1) of the Law No 43/98 of August 6.
7-In the sessions of the Commission in which questions are discussed which are of interest to a
given entity may participate, without the right to vote, a representative.
8-CADA members take office before the President of the Assembly of
Republic in the 10 days following the publication of the respective list in the 1ª series of the Journal
of the Republic .
Article 20.
Competence
1-Compete to CADA:
a) Elaborate on its internal regulations;
b) Appreciate the complaints made to you by those interested in the shelter of the
present law;
c) Give an opinion on access to the nominative documents, pursuant to paragraph 2
of Article 15, the solicitation of the person concerned or of the service required;
d) Give advice on the communication of nominative documents between services and
bodies of the Administration in case of doubt about the admissibility of that
revelation, save in cases where access should be authorized under the terms of the
Law No. 67/98 of October 26;
e) Pronounce on the system of classification of documents;
f) Give opinion on the application of the present diploma and as well as on the
elaboration and application of supplementary diplomas, the solicitation of the
Assembly of the Republic, the Government and the organs of the Administration;
g) Draw up an annual report on the application of this Law and its activity,
sending to the Assembly of the Republic for publication and appreciation and the
Prime Minister;
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h) Contribute to the enlightenment and dissemination of the different avenues of access to the
administrative documents in the framework of the open administration principle;
i) Instruct the counterordinance processes.
2-The internal regulation of CADA is published in the 2 th series of the Journal of the Republic .
3-The opinions are drawn up by the members of CADA, who may request for such
effect the proper support of the services.
4-The opinions are published in the terms of the Rules of Procedure.
Article 21.
Cooperation of the Administration
Officers of the Public Administration are subject to the duty of cooperation with the
CADA, under penalty of disciplinary responsibility.
CHAPTER IV
Counter-ordering
Article 22.
Counter-ordering
1-Practice counterordinance punishable with fine the natural or legal persons
that:
a) Reuse public sector documents without permission from the entity
competent;
b) Re-use public sector documents without observing the conditions of
reuse set out in accordance with Article 17 (1))-And;
c) Re-use public sector documents without having proceeded to
payment of the value set pursuant to paragraphs 2 and 3 of Article 17.-E.
2-The offences set out in the 2 a) and c) of the previous number are punishable by the
following fines:
a) By means of a natural person, at the minimum of € 300.00 and at maximum €
3,500.00;
b) Dealing with a legal person, at the minimum of € 2,500.00 and maximum €
25,000.00.
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3-A offence provided for in paragraph b) of paragraph 1 is punishable by the following fines:
a) By means of a natural person, at the minimum of € 150.00 and at maximum €
1,750.00;
b) Dealing with a legal person, at the minimum of € 1250.00 and maximum €
12,500.00.
Article 23.
Negligence and attempt
The negligence and the attempt are always punished in the counter-ordinations provided for in the
previous article.
Article 24.
Application of fines
1-A The application of the fines provided for in this Law shall compete with the President of CADA,
after instruction and deliberation of the Commission.
2-A The deliberation of CADA, after type-approved by the President, constitutes title
executive, in case it is not to be impugned in the legal deadline.
Article 25.
Target of revenue collected
The amount of the importances charged, as a result of the application of the fines, reverses:
a) In 40% for CADA;
b) In 40% for the state coffers; and
c) In 20% for the entity referred to in Article 3 aggrieved with the practice of
infringement.