In politics, not everything goes

Following the creation by the Constitutional Court of the Electronic Platform of the Entity for Transparency, members of the Assembly of the Republic and members of the government began to submit, in a centralised manner, the so-called “single declaration”. This document covers all their reporting obligations under Law no. 52/2019, of 31 July, and the Statute of Members of Parliament, in particular with regard to assets, income, shareholdings in companies, functions performed and any situations of incompatibility or impediment.

However, one question remains: can this statement be released publicly after it has been presented?

We all have the right to access administrative information, including information concerning the functioning of State bodies. This constitutional right (Article 268, paragraph 2) is reinforced by the principle of transparency governing the exercise of public office, especially political office. The purpose of making statements public is to prevent situations of conflict of interest and to strengthen citizens' trust in institutions.

However, the same constitutional article expressly recognizes that access to information must be compatible with fundamental rights, such as the right to privacy and the protection of personal data (articles 26 and 35 of our Basic Law), especially with regard to sensitive information, such as bank details, details about real estate or information involving third parties.

Public consultation of the declarations is, however, subject to formal requirements. Any citizen may request consultation, without the right to reproduce them, but it depends on a request with identification of the applicant, which is nothing more than filling in the form made available through the Electronic Platform of the Transparency Entity, from the Public Access area.

If the Transparency Entity considers the consultation request to be insufficiently informative, it will ask the applicant for clarification. The request always runs the risk of being rejected, as a rigorous analysis of the nature of the data, its suitability and purpose is required, limiting any indiscriminate disclosure (Article 17.5 of Law No. 52/2019, Articles 17 to 19 of the General Data Protection Regulation No. 258/2024 and Law No. 58/2019 thereof).

There is no regime of “automatic publication” or “general availability” of the declarations, which denotes reinforced protection of privacy.

Now, the deputies who are part of the working group for registering interests have access, in real time, to the Electronic Platform of the Entity for Transparency and to all the unique declarations presented by their peers to the Assembly of the Republic and by members of the Government, for the purposes of fulfilling the duties and powers provided for in the Statute of Deputies.

In other words, this is access that derives from a “functional duty” for the purposes of verifying delivery, compliance and possible analysis of conflicts of interest, being “restricted to the legal purpose” and covered by the “duty of confidentiality” provided for in article 9 of the Code of Conduct for Members of the Assembly of the Republic and in article 5 of the Rules of Procedure of the Assembly of the Republic.

Anyone who, in the exercise of public or institutional functions, discloses, shares or uses information outside the scope authorized by law or by their functions will violate the duty of functional secrecy, incurring civil and criminal liability. Civil liability, because such acts of indiscretion are likely to cause harm to the holder of the declaration, generating the duty to compensate for violation of personality rights (privacy of private life, honor, image, good name), such as the undue public disclosure of sensitive data (articles 70, 80 and 483 of the Civil Code). Criminal liability, for the practice of the crime of breach of secrecy, punishable by imprisonment of up to one year or a fine of up to 240 days (article 195 of the Criminal Code).

In a democracy, there are rules and members of parliament are subject, like all citizens, to the duties set out in the Constitution. The principle of equality prohibits privileges based on office and unethical conduct and behavior that brings the institution into disrepute must always be avoided. At the very least, this is what happened with the case that is currently plaguing the Prime Minister. In politics, as in life, not everything goes.