Siti istituzionali e trasparenza: dalla legge 241/90 alla legge 69/2009 e alle riforme del Codice dell’amministrazione digitale

This work addresses a theme back in the limelight both in the lexicon and in the community feeling: administrative transparency. “Glass House”, as he said Filippo Turati in 1908 about manner how all public bodies should be; or “House with tinted windows”, as Aldo Sandulli denounced in an article in 2007, a bitter commentary on the reforms introduced by legislator regarding the right of access? I have tried to figure out what was the legislative policy that has been lead in relation to these two extremes. Moreover, if it is true, as taught by the doctrine, by Arena on, that the absolute transparency is a myth unattainable as well as not advisable - because there may be interest that, in fact, may require confidentiality to protect their best, even temporarily – however, the relationship between transparency and secret can not be identified just by finding in the first one the rule and in the second one a limited exception. From this study it was found that the administrative transparency, as category broader than advertising, which relates to a relationship between “genus” and “species”, is mainly an aspect of the administration, an aspiration of public authorities, which is incompatible with the attempt to compress into a single legal institution. The administrative transparency has its murky origins in the insights of two giants lived in the eighteenth century: Rousseau who was convinced of the absolute need for visibility of the acts of public bodies, and especially Kant who, in a strong opposition to the absolute rulers and their dominant “arcana imperii”, go beyond the mere political value in order to assign it a moral significance, by using the famous maxim “All actions relating to the right of other men, whose maximum penalty is not susceptible to advertising, are unjust”. From philosophy through history, and reaching out the right, this work came across the “arcana burocratici”. In fact, investigating since the pre-Unification of Italy, I took both the persistent immanence of the secret and its mutation: born first as synonymous with professional secret, as a consequence of the fiduciary relationship that develops between administrators and administered; however, with the emergence of modern States and of bureaucratic administration, it assumes the guise of a specialized knowledge of the public employee, and this marks the landing to “arcana burocratici”. However, this indomitable strength of the administrative secret must be reckoned, especially since 1948, with the new values introduced by the Constitutional Charter which, even if it never explicitly mentions the transparency, contemplates it again and again as a result of the elasticity of its principles: from the democratic one to the manifestation of thought one, or to the political rights or the association and assembly rights, and to advertising right, not to mention the crucial relationship with the principle of impartiality, which all require to resize the strength of administrative secret. This work then gave importance to transparency in ordinary legislation, especially in the Law 241 of 1990, with particular attention to the comparative perspective of the influences arising from the American FOIA, with its model of free access of public documents without subjective filters, in order to detect the distance, since the first hour, between the law project designed by the Subcommittee Nigro and the legislator, regarding the right of access to administrative documents, long time considered as the teaching tool that can perform two functions: to protect individual situations and check public action in a democratic sense. Do not think so the legislator who, since the beginning, relegates it to the mere operation of self-interest and diminish its democratic value, introducing a filter to its use by all citizens that, not only will never fail, but indeed, in subsequent reforming steps, especially in the law n. 15 of 2005, will be accentuated. But these legislative policies, going in the direction opposite to the constitutional requirements, forcing me to investigate other sources, in particular the Digital Administration Code of 2005 and the operation “Trasparenza” launched by the Minister Brunetta in 2009, in order to assess how the system recovers constitutional consistency. And so, on the basis of the emergence since the early 90's of the new standard of communication and maximizing the standard of publicity, this work has noticed that the Italian system was marked by an inexorable passing of the torch of transparency instruments, from the right of access to documents, never too loved by the legislator in terms of transparency, to the on-line publication of information on institutional websites of public bodies. It emerged, based on the new possibilities offered by ICT, a model of transparency as a synonym of potential total accessibility. We move from access to documents to any information accessibility, both the one concerning the activities carried out by institutions, both the one relating to employees. Information that is potentially infinite in number, favoured by the slow passage of the Italian administration to digitization. It is “the triumph of transparency?” Not really: the identified risks are many. From the possible information overload, to the risk of its quality: the accumulation does not guarantee the reliability or fact, nor its significance and hence no guarantee on increasing transparency. Legal issues, such as the adversarial relationship with privacy, that are carried by the counterparties, and technological issues; think of the digital divide still suffered from many Italian citizens who have no access to broadband internet. Finally, in the background, the great fundamental question: why the legislator has staked everything on transparency, as a synonym for release of information on the entities in the network, and cut out of the game the right of access? In the opinion of the writer, when you think in terms of high aspirations, who aspire to ethics and, ultimately, to virtuous behaviours, it would be better to proceed by accumulation and never by exclusion.