The notion of transparency and its functions

Transparency can be understood as an ideal, a principle or described in the framework of our current regulation. For Sánchez de Diego (2016: 307) it is "a quality of the information system of public entities". On the other hand, Ramírez Alujas (2010: 24 and 25) approaches us to the description of a transparent government as one that "provides information about what it is doing, makes available its sources and databases, and publishes the action plans for which it can be held accountable to society. This fosters and promotes accountability to citizens and permanent social control, while at the same time reinforcing trust, social cohesion and institutional strengthening".

Through the regulation of the Transparency Law of 2013 (LTBG) it can also be understood as a principle of action of public administrations, whose main manifestations are the right of access and active publicity (Piñar Mañas, 2014: 5). The right of access allows citizens to request information held by public administrations, although it is subject to limits derived from specific matters: national security, defence, foreign relations, public security, etc. There is also a limit derived from the affectation to third parties' rights and specifically to the protection of personal data. In addition, there are a number of grounds for refusal of requests, such as information in the process of being prepared or published, auxiliary or support information, or information that requires reworking, among others. The grounds for refusal and inadmissibility have been recurrently criticized because they allow abusive interpretations that end up reducing the right of access (Toquero, 2014). It is true that refusals of access on these grounds can be appealed before the Transparency Councils, and that these adopt a pro-transparency stance (Puigpelat, 2017; Rodríguez, 2017), but in any case, this has the consequence of delaying the deadlines for obtaining any favorable resolution.

On the other hand, active publicity corresponds to the publication of information through government websites and portals in compliance with the obligations established by law. Specifically, it is a catalogue of information that must be published and which is categorized as institutional, organizational and planning information; of legal relevance (regulations, draft regulations and reports); and economic, budgetary and statistical information.

Thus, the regulation of transparency -although it contains express mandates and allows the exercise of the right of access- is much more limited than the concept of transparency in a broad sense, which is the one that corresponds to the social and journalistic vision of transparency.

In any case, all these provisions lead us to ask ourselves why we want transparency. The answer is that transparency is presumed to have several functions for the functioning of democracy.Mendieta (2014) summarizes many of its virtues as a necessary element for accountability, improving the efficiency of organizations and the economy, preventing corruption, shaping good governance, and even increasing the quality of democracy.

This instrumental role leads to consider that greater access to information allows citizens to exercise their rights more fully and to carry out a public scrutiny that results in a higher quality democracy, since otherwise, "with public powers without being subjected to effective accountability, both institutional and citizen, it is a matter of time before democratic quality languishes and citizen disaffection grows" (Hernández Ramos, 2018: 508).

Transparency and Journalism: Expectations and Reality

In the fulfillment of these functions of transparency, the role played by journalism as one of its beneficiaries cannot be ignored, and also because it plays a central role as a mediator between government activity and society, exercising a broad role in democratic control. Moreover, there are specific and additional advantages that transparency offers to the journalistic profession, from the most basic, such as facilitating greater availability of information, sources and data. It is a complement to the daily work of journalists because it opens the door to a higher quality and possibilities of contrasting information, making it possible to access data that "are official, complete and accurate" (Díez Garrido and Campos Domínguez, 2018: 54). It allows "revealing the incoherence of the political discourse (beyond the newspaper archive), from the analysis of reports on actions or legislative measures" (Rosa & R, 2013). It constitutes an alternative for obtaining information that cannot be obtained by other means or when it is of interest that it is "raw" or unprocessed information (Bertoni, 2011). It offers an opportunity to increase autonomy in the face of dependence on interested leaks or press releases (Manfredi Sánchez, 2014: 78 et seq.; ) (Rosa & R, 2013). It is also frequent to point to transparency as a means of breaking journalistic routines allowing the creation of an own agenda from new stories (Manfredi Sánchez, 2014: 77) and as a starting point for the development of other possibilities of the profession through data journalism (Díaz, 2013).

However, from these initial expectations, it has been considered that its development through the Transparency Law is insufficient and prevents taking full advantage of its benefits (Barrolleta et al., 2016; Garrido et al., 2018; Jiménez, 2017). According to several studies based on surveys to journalists, most of those who knew the Transparency Law indicated that its measures were not enough for journalistic work (Díez Garrido and Campos Domínguez, 2017) ¹ ; and for two out of three, it was not a useful tool for daily work (Rubio Jiménez, 2017a: 37).

The study by Díez Garrido and Campos Domínguez (2017) showed that 82.7% of respondents thought that improvements were needed in the regulation of the right of access to information, and that the data on the transparency portal were not enough. In addition, this study asked about the functions of journalism when using transparency mechanisms, highlighting almost equally the dissemination of objective information and the monitoring of power.

In the study of Rubio Jiménez (2017a: 37 and 38) again referred in the surveys to the limitations of the Transparency Law and respondents highlighted as main causes the existence of exceptions to access to information, the lack of a sanctioning regime of the guarantee body -the Transparency Council- and response times.

The study based on in-depth interviews by La Rosa BBarrolleta et al. (2016) confirmed some of these shortcomings. In relation to the right of access, reference was made to the long response times and their repeated non-compliance; to the existence of limits imposed by data protection, leading to negative resolutions when requesting detailed information on public officials; or to the fact that administrative silence is negative (dismissive). In addition, regarding the transparency portal, it was indicated that its content does not provide substantially new information, but the information repeated elsewhere; while regarding the Council for Transparency and Good Governance (CTBG), the lack of a direct sanctioning regime for the system to work effectively was pointed out. In addition, it is stated that all these reasons have contributed to the fact that data journalism has not been able to develop more rapidly in Spain, remaining "in an incipient state despite the boom that took place throughout 2015" (La Rosa Barrolleta and Sandoval Martín, 2016: 1224).

The aforementioned weaknesses are, for the most part, a consequence of the configuration of the right of access as a right of legal configuration of an administrative nature, without the rank and special protection granted to fundamental rights.

As Sánchez de Diego (2010: 256) stated, the right of access is an integral part of the right to information contained in Article 20 of the Spanish Constitution, "because in order to inform and communicate it is necessary to access information", as contemplated in basic texts such as the Universal Declaration of Human Rights (art. 19) or the International Covenant on Civil and Political Rights (art. 19.2), which specify that freedom of expression and information contains the possibility of investigating or seeking information. However, this disconnection shown through the LTBG was of one of the main criticisms it received after its publication, because in this way "citizens and journalists cannot freely access the information guarded by the Government and administrations" (Manfredi Sánchez, 2014: 73).

Having opted for this route in Spain -its non-recognition as a fundamental right-, a logical consequence is that the regulation configures the right in a secondary way and has less entity when weighing the collision with other rights or interests. The Spanish situation goes, therefore, against the grain of the texts and judgments of international courts, whose panorama has changed in recent decades, giving the right of access a fundamental status (Fernández Ramos, 2018: 233). Of these, it is noteworthy the criterion of the European Court of Human Rights (ECtHR) that considers the fundamental nature of the right of access when it is closely linked to freedom of expression, so that it has come to be configured with an instrumental character (Ramos, 2018) Thus in its judgment of 8 November 2016 -Magyar case-, it came to affirm this recognition when the requested information meets a test of four requirements: it is of public interest, it serves the public debate, it is available, and it is requested by a public watchdog, that is, by a qualified applicant such as journalists. According to this interpretation, the right of access would have a fundamental character when exercised by a public watchdog and not by any citizen, but in any case it would be a step forward compared to the current situation. Therefore, Spain, as a country that has signed the European Convention on Human Rights and other aforementioned standards, should internalize this recognition by the constitutional obligation (art. 10.2 CE) to interpret fundamental rights according to international treaties and agreements signed by Spain (Cotino Hueso, 2017: 315).

Information in times of health crisis

This recognition would have had wide-ranging consequences in relation to the subject matter, since in a state of alarm fundamental rights cannot be suspended - although their exercise ² can be conditioned - and access to information would have been safeguarded in view of its importance in a crisis context.

It should be remembered that in these contexts the demand for information grows (Westlund and Ghersteti, 2015: 13), but that it becomes even more important because it fulfills a triple instrumental function (De la Sierra Morón, 2020: 34 and 41): it allows the control of government management, helps "the responsible adoption of individual decisions" of citizens, and contributes to other public administrations to act in accordance with the defined risks. In this line, the role it plays as an element that favors trust is highlighted, because without it "it will be very difficult to convince people to adopt the necessary behaviors in order to have that risk under control" (Costa Sánchez and López García, 2020: 5). But as there is a demand for information, institutional and official information is the primary source for the production of news, as it is the focus of attention and the main reference for consultation, apart from the fact that in the face of extraordinary events, the difficulties of private reporters increase (Peiró, 2020).

Therefore, in this framework, the communication capacity of governments to set the media agenda increases, so that the "media repercussion is directly related to the declarations of political leaders" (Martínez Solana, 2004: 145). The conditions that make political communication to be defined as the result of a pattern of constant interaction between politicians, communicators, journalists and citizens are thus altered (Canel Crespo, 2006: 27). In fact, in this context it reminds us -saving the distances- the situation to the equivalent of the post-war political communication described by Lasswell in 1948 in a context of governmental propaganda, linear and unidirectional communication, which from a position of superiority is directed to a passive mass on which it was possible to influence.

Furthermore, it cannot be ignored that governmental declarations are part of the puzzle of institutional communication, whose techniques have a persuasive intention to influence the recipients and achieve their adhesion (Crespo & J, 2007). For this reason, it is no stranger to the use of possible resources such as the ceding of information, concealment, staging and persuasive communication.

Hence, transparency increases its importance, because it allows the availability of alternative sources of information and data that are not accompanied by the governmental vision, so that journalists are the ones who can build their own agenda and properly contrast governmental statements and information (Rosa & R, 2013; Sánchez & L, 2014).

These approaches converge again in the idea that transparency and its use by journalism professionals are a counterweight to the communication tactics of governments, even more so in times such as exceptional states, in which there is a relaxation of the usual controls -or a greater difficulty for their ordinary development-, along with a greater concentration of power, on which, in addition, there is an increase in the predisposition of citizens to tolerate that the exercise of freedoms is affected (Amat, Arenas, Gimeno, & Muñoz, 2020), with the risks of democratic involution that this entails ³ .

News interest and governmental communication

From the days prior to the declaration of the state of alarm, the consumption of news media by citizens increased ostensibly, not only due to the expectation of the events, but also due to the contextual situation in which citizens had been confined to their homes, with more favourable conditions for access to the consumption of information without the constraints of the ordinary rhythm of daily activity.

Taking as an indicator the television audience data offered by Barlovento Comunicación, from a more or less stable situation of television consumption in January and February 2020 of less than 4 h. per person per day -with lower data than in the same period of the previous year-, the situation changed to a situation of consumption of around 4.5 h. in March and 5 h. in April, with an increase of around one hour per day compared to the same data of the previous year, while in the months of May and June these increases began to moderate (Table 1).

Source: Monthly analysis of TV audience behaviour. Barlovento Comunicación (www.barloventocomunicacion.es).

In this context, the demand for information also increased, along the lines that occur in crisis situations (Westlund and Ghersteti, 2015: 13). Data from the CIS barometer of March ⁴ showed that 71.2% of citizens followed the information with a lot or quite a lot of interest, a figure much higher than the level of interest in events such as the election campaign for the general elections in November 2019 ⁵ . In addition, 54.5% stated in this initial period of the crisis that they would like to have more information on prevention measures. In subsequent CIS barometers (April - June) there were no equivalent questions, except for the one on the sufficiency of government information, which in April showed that more than 60% demanded more information, in general (58.2%) or more truthful (2.4%).

Therefore, the demand for information throughout the months of March and April 2020 justified, even more, the importance of journalistic activity with respect to the production of news in sufficient number and quality, as well as the provision of all possible resources for the development of their work.

Throughout the period, daily press conferences were held, dossiers were prepared on the evolution of the disease -emanated by the Ministry of Health-, and constant information was offered through the web pages of the ministries ⁶ , among many other communication actions ⁷ . However, the common denominator of all of them was the unidirectionality of the messages and the preponderance of the official versions of the events.

Thus, the first milestone in the controversy over the lack of transparency was the complaints of journalists and the media about the press conferences with questions chosen by the government. This situation dragged on during the first weeks of the state of alarm. First without the presence of journalists, who submitted their questions previously, being selected by the Secretary of State for Communication; and later, by videoconference with the intervention of journalists, but subject in the same way to the government's selection of the media that could ask them.

This way of proceeding has been criticized by some authors for the fact that the selection of questions implies a direct censorship mechanism (Sánchez, García, & X, 2020), apart from the fact that the first deferred system -which did not allow the reply or cross-examination- was difficult to justify in view of the possibilities offered by the new technologies. In any case, the effect of this system is that it offered "an image of the government's management that did not correspond to reality, avoiding the most thorny issues, so as not to question the government's actions" (Ibáñez Peiró, 2020: 313).

However, this situation led to the manifesto "freedom to ask" (01/04/2020) ⁸ , in a context in which criticism was increasing. These were based on doubts about the quality of the data provided by the government regarding the evolution of infections and the lack of contrast with the mortality figures offered by other sources of information (Costa Sánchez and López García, 2020: 6 and 7) ⁹ .

These reactions prompted the government to propose a new system of videoconferencing in early April. However, the indignation of journalism and the media spread again after the publication, in mid-April, of the CIS Barometer, which included among its questions the measurement of the degree of agreement with the possibility of banning the dissemination of information that was not aligned with official sources. The insertion of this question was interpreted as an invitation to state censorship and the government was accused of seeking a favourable response through a wording of the question far from neutrality ¹⁰ .

Subsequently, other controversies arose when it was detected that the resolution of requests for public information had been paralyzed and that contract information was not being published. Hence, a spiral of reaction began to emerge -somewhat belatedly- from organizations related to transparency and the right of access, releasing various manifestos and statements by the Coalition for Access, CIVIO, Transparency International, Access INFO, or the Association of Transparency Professionals (ACREDITRA), among others.

To all these situations were added new circumstances arising from the demands for information from journalists and organizations, noting that the composition of the members of the Committee of Experts advising the government or the de-escalation reports, information that was public according to the General Law on Public Health (Law 33/2011, of October 4), was not published, nor was it provided.

All this led to talk of lack of transparency and censorship, and the media incorporated news related to the transparency portal and freedom of information to the media agenda.

The government's main reaction to the first criticisms was to argue that it was providing more information than ever before, emphasising the constant institutional communication activity that was taking place. Apart from that, some rectifications were made, allowing questions by videoconference or publishing contract awards, but without reactivating the deadlines of the right of access (they were resumed on June 1, 2020) and without providing the names and reports of the committee of experts that advised it and that existed according to the government ¹¹ .

The problem of the right of access

As mentioned, it had begun to be detected in expert forums the consequences of the interruption of administrative deadlines of the Decree of the state of alarm in relation to the exercise of the right of access to public information. This suspension had as a consequence the indefinite extension of the time to respond to requests for transparency. The blog of the expert Miguel Ángel Climent (2020), and above all, his entry entitled El derecho de acceso sobre el Coronavirus durante el estado de alarma (March 31, 2020), had a wide repercussion in the ecosystem of transparency organizations, which was followed by other articles of wide impact such as the blog of the Fundación Hay Derecho (García, 2020).

Indeed, the publication of Royal Decree No. 463/2020, of 14 March, declaring a state of alarm for the management of the health crisis situation caused by COVID-19, suspended the administrative deadlines for the entire public sector. The exercise of the right of access follows procedures subject to administrative law and, therefore, its suspension has an impact on the time available to public administrations to resolve requests.

According to the Transparency Act, requests for access to public information must be resolved within one month after they are received by the competent body (art. 20.1 LTBG). As the regulation is formulated, this deadline may be delayed in the period of time that elapses from the time the request is made until it is received by the competent body. Besides, it may be extended for another month if the information requested is voluminous or complex.

Therefore, the interruption of time limits generally affected the right of access. The original wording of the third additional provision (paragraph 4) of the Royal Decree declaring the state of alarm contained a provision that the suspension of time limits would not affect those procedures and resolutions "when they refer to situations closely linked to the facts justifying the state of alarm". That is to say, it would come to safeguard those procedures that respond to the accountability of the state of alarm, among which could be included the requests for public information. However, four days later, this section was modified ¹² , becoming a possibility that could be "agreed with reasons", that is, imposing an additional requirement for the continuation of the deadlines -the motivation-, instead of the previous wording that imposed in a generalised manner its continuation if they were related to the justification of the state of alarm.

Thus, any request for data or information related to the COVID-19 crisis was paralyzed, although there was a possibility for the administration's discretion to agree on the continuation of deadlines. Moreover, the importance of this suspension was wide-ranging, because it was not limited to the scope of the State, since the rules of administrative procedure are applicable to the rest of the public sector, and therefore, it had a general scope to all public administrations in our country ¹³ .

Hence it was criticized because it meant a paralysis of the right of access and because, in addition, no justification was observed for these provisions because public employees continued to perform their work through teleworking and because its maintenance was not detrimental to the health situation. As indicated by Morón (2020), despite the fact that the LTBG establishes a series of limits to the right of access, "it does not seem that in this case they are applicable in view of the higher legal good of public health". In addition, the continuation of deadlines could have been exempted from any suspension, as was done with other matters such as tax and social security deadlines. However, the suspension was communicated to the CTBG without any comments (Note from the Directorate General of Public Governance of 17 April 2020).

The impact on the paralysis of the resolutions can be clearly observed from the data of the statistics of the Transparency Portal of the Government of Spain. Between the months of March to May 2020, the size of the backlog of access requests in processing grew ostensibly. In the ordinary conditions of February it stood at 893 pending requests, which practically doubled at the end of April reaching 1,612 requests, to increase again to 1,997 in May 2020 (TABLE 2). In addition, the cumulative data for requests up to February 2020 showed that those directed at health accounted for around 3.9% of the total, but this percentage grew among new requests made during the state of alarm to 6.6% in March, 17.6% in April and 18.6% in May, making it the main subject of access requests.

An additional observation is that the number of new requests was reduced in the context of the crisis (from 966 in February to 585 in April), so the scale of the lack of processing could have been much greater if the normal pace of requests for information had continued.

Source: Prepared by the authors based on the statistics report of the Transparency Portal of the Government of Spain.

Active advertising: public contracts, expert committees and health information

Regarding the other main pillar of transparency -active publicity- it should be mentioned that the LTBG regulates the matters that must be compulsorily published by all entities within its scope of application. However, with regard to the COVID crisis, the main controversies arose in relation to the mandates of publication or public knowledge derived from other laws on procurement and public health.

Within the Public Procurement Observatory, ¹⁴ attention was already being drawn to emergency contracts, which, due to their characteristics, dispensed with the usual elements of publicity and, moreover, the awards were not being published immediately (Casado, 2020).

The origin of the situation is to be found days before the declaration of the state of alarm. Royal Decree Law 7/2020 of 12 March enabled contracting through the emergency procedure to meet the needs arising from COVID-19 (art. 16). This procedure provided for in the Public Sector Contracts Law (art. 120) is widely used in Spanish legislation and allows contracting without following any type of procedure, even enabling verbal contracting (Melián, 2020).

The practical consequences regarding the advertising of contracts is that there are no prior announcements of tenders, although this does not prevent the publication of the formalisation of contracts, which must be carried out within 15 days in the profile of the contracting party and in the Official State Gazette for contracts of the General State Administration and related entities (art. 154 LCSP). In addition, public procurement is subject to an express obligation of active publicity according to the Transparency Law. Therefore, as there is no exception in the Contracts Act and the Transparency Act, they must comply with the advertising obligations, because otherwise the proper control of respect for the basic rules and principles of public procurement is prevented (Casado, 2020).

Thus, it was detected that there was a lack of information on these contracts on the Transparency Portal and on the State Contracting Platform, which did not begin to be published until more than a month after the declaration of the state of alarm.

In any case, the controversy that arose over the lack of publicity of public contracts was not only due to the non-compliance with respect to contracts that were not published on time, but also because a form of requesting them, such as the right of access, had been left without effect. In addition, the use of this emergency procedure is more opaque and has fewer controls, moving away from the spirit and practice that should guide public procurement.

Finally, reference is made to other transparency obligations contained in the General Law on Public Health of 2011, such as the identity of the members of the Committee of Experts that advised the Government on Covid-19 and its reports, among which were the evaluations of the Autonomous Communities for de-escalation.

This information was unsuccessfully demanded by journalists and also by some Autonomous Communities. In this regard, the fact-checking company Maldita, denounced this situation to the CTBG, whose request responded showing one of the problems of the inadequacy of the Transparency Act. The Transparency Council came to indicate that the composition of these committees of experts not formalized, are not the type of bodies referred to in the LTBG, and therefore, the CTBG did not have powers to perform a control of active publicity required by other rules other than the Transparency Act.

On the other hand, the General Law of Public Health does not have a mechanism to demand the publication of the obligations it establishes. After almost a decade since its approval, there is no regulation of the law, nor a procedure to demand the dissemination of information, which translates into an obligation without any guarantees of compliance.