Spain, Galicia High Court of Justice, 23 May 2022, Judgement 198/2022

The Court recalled the public nature of the information regarding the number of infections and deaths from Covid-19, or other symptoms compatible with it, among the residents of private care homes. First, it considered that the right to access to information was not just an autonomous right (Art. 105 b SC) but also an instrument at the service of the fundamental right to information (Art. 20.1 d SC). As this right was basically exercised by journalists, their access to information was crucial for the creation of a free public opinion within a democratic society. Thus, journalists did not have ‘more’ right than others to access this kind of information but their right, not just a right in and of itself, but a means inservice of a fundamental right (the right to information), enjoyed further protection. Second, the Court discarded the violation of the right to data protection since the (numerical) information provided did not permit anybody to be identified concretely. For that reason, the rights to honor, privacy, and self-image of the people concerned were not infringed upon. Third, the Court also rejected the alleged violation of the right to honor of the private nursing homes. The Court explained that since the information concerned was provided by public nursing homes, requiring private ones to provide it constituted equal treatment. Otherwise, it would be an opaque action. In addition, since the claimants argued that providing such information could create a negative opinion about their management, the Court explained that this was an unjustified suspicion. Moreover, it recalled that enterprises can make that information public voluntarily with appropriate explanations. Lastly, the claimants argued that the right to access information could be limited when financial interests could be affected. The Court found that no proof was provided that would link the publication of the aforementioned data with the economic well-being of the enterprises. In any case, the public interest in providing that information prevails over private interest (financial reasons) as there is a higher public interest in being informed about the crisis management even in private care homes. The private interests of the latter - which was not founded - cannot be opposed to the right of the people to have information about infections and diseases in nursing homes, data which was, itself, devoid of any negative connotations.