Focusing on the transparency of the PA also means taking action on corruption. What tools do we have to report possible offenses?
(by Arturo Siniscalchi, Vice President Aidr and Deputy General Manager FormezPA) Transparency and the fight against corruption in public administrations are taking on an increasingly important role. The Transparency Code has integrated and rearranged the provisions regarding the obligations of publicity and dissemination of information by public entities. But not only. Above all, the digital tools for citizens' access to information and data from public offices have been enhanced. And there was, for example, the introduction of civic access to documents, a digital publication obligation by the PA, in addition to free access, like the Freedom of Information Act.
The decree-law 34/2019, concerning growth measures, introduced some provisions on the transparency of public documents. In particular, it is necessary to refer to the Transparency Code (Legislative Decree 33/2013) as a single regulatory body for the provisions on the subject. The Code identifies a wide range of documents and deeds whose publication constitutes an obligation on the part of the PA. These include those relating to the organization, the activities of public administrations regarding public resources, including information on the properties owned and the management of assets and the services offered up to the services provided. Documents, information and data subject to mandatory publication are published for a period of 5 years. To make them accessible, they are included in a special section called "Transparent Administration" which can be found on the homepage of the institutional sites of each PA.
The notion of civic access, for example, provides for the right of anyone to request the documents, information and data subject to mandatory publication from public administrations. In fact, two types of supervision are envisaged to ensure the implementation of transparency measures:
- at a widespread level;
- centrally.
In relation to the first aspect, each administration must identify a person responsible for transparency, which usually coincides with the person responsible for the prevention of corruption envisaged by law no. 6 concerning the “Provisions for the prevention and repression of corruption and illegality in the public administration”.
At central level, the control is entrusted to the National Anti-Corruption Authority which is the holder of inspection powers over the individual administrations. The Authority may order the adoption or removal of unsuitable acts and behaviors.
Among the innovations introduced is the simplification, the new regulation on transparency obligations regarding holders of political offices, thus expanding the number of interested parties. With a view to simplifying procedures, the abolition of the obligation to adopt the three-year plan for transparency and integrity by each administration is emphasized.
But among the priority issues there is undoubtedly the fight against corruption, which should be conducted above all on a substantive, not formal level. Suffice it to say that the mass of rules and administrative procedures now forces the PA to flood the Anac with requests for opinions, creating delays and hardships for companies and citizens. Rather than pursuing only formal requirements, it is necessary to concretely address the problem.
How? There is increasing talk of reporting offenses in the PA, but the right / duty of the public employee to report illegal behavior cannot be ascribed to the simple violation of the obligation of loyalty, as reported in article 2105 of the civil code. Rather, the employee's collaboration is required to bring out illicit or illegitimate facts of collective interest.
A problem that has already been subjected to scrutiny several times by the judiciary but which requires everyone to commit to making the equipment more functional by reducing the bureaucratic burden and spreading digitalisation.
There is therefore the need to strengthen the position of independence in order to appropriately combine legality, impartiality and efficiency in local administrations, in compliance with the strategic guidelines proposed by the government.
This clearly also includes the modernization of personnel policies.
And for the so-called whistleblowing, or reporting of an alleged offense, the corruption prevention system introduced by law 190/2012.
In essence, this is the Anac system for reporting unlawful conduct where public employee means those who want to report offenses of general interest and not of individual interest, of which he has become aware due to the employment relationship, based on the provisions of art. 54 bis of Legislative Decree no. 165/2001 as amended by law no. 30. This also concerns the employee of a public economic entity, or the employee of a private law entity subject to public control pursuant to art. 2017 of the civil code. Furthermore, the whistleblowing discipline also applies to workers and collaborators of companies supplying goods or services that carry out works in favor of the public administration. By registering a specific report on the ANAC portal (www.anticorruzione.it), a unique identification code is obtained, the "key code", to be used to "dialogue" with Anac and to be constantly informed on the processing status of the report sent.
If the Authority deems the report to be well founded within the terms established by determination no. 6 of 28 April 2015 containing the "Guidelines on the protection of public employees who report offenses", may initiate an interview with the person responsible for the prevention of corruption and transparency (RPCT) of the administration subject to report or order the sending the report to the competent institutions, such as the Inspectorate for the Public Service, the Court of Auditors, the judicial authority, the Guardia di Finanza. Clearly the Authority, based on current legislation:
- it does not protect individual rights and interests;
- does not carry out ascertainment / solution of subjective and personal events of the reporting party, nor can it affect them, except indirectly and mediated;
- it cannot take the place of the competent institutions for the matter;
- does not provide legal representation or advice to the whistleblower;
- it does not deal with reports from private entities.
Thanks to the use of an encryption protocol that guarantees the transfer of confidential data, the unique identification code obtained following the report registered on the aforementioned portal allows the reporting party to "dialogue" with Anac in an anonymous and depersonalized way. This also means that the level of confidentiality has increased compared to the previous methods of handling the report.
For this reason, those who have introduced their report after the date of entry into force of law no. 179/2017 through other channels (telephone, ordinary mail, e-mail, certified and non-certified, general protocol), can only use the IT platform. On the other hand, the use of this platform also guarantees greater speed in dealing with the report itself, to guarantee a more effective protection of the whistleblower (whistleblower).
For this, and for other reasons, the future of the PA passes above all to digitization.