El principio de proporcionalidad en el derecho de acceso a la información pública: usos y potencialidades para mitigar la discrecionalidad estatal al invocar una excepción legal

Abstract

The principle of proportionality is a procedure for applying rules on fundamental rights. Although it was born in Germany, today and thanks to the contribution of Robert Alexy, it migrated to other legal systems. Generally, their implementation is approached from the judicial perspective; that is, as a mechanism of constitutional review. This paper addresses the principle of proportionality from another perspective. My intention is to evaluate its effectiveness in the particular field of the right of access to public information and, therefore, applicable within the framework of decisions taken by political power. In this way, and given that for Alexy, the conception of fundamental rights as requirements for optimization is inseparable from the principle of proportionality, I will analyse each of its sub-requirements – suitability, necessity and proportionality in the strict sense – taking into account such characterization. In particular, I will emphasize in "principalism" – recognition of principles and values in constitutions – as a determining element of the examination. Finally, I will conclude that the principle of proportionality presents an adequate argumentative structure to support the exceptions to the right of access to public information that, in light of the principle of maximum disclosure, must be interpreted restrictively.