Question:

How should the administrative agency act when parties want to inspect the file documentation that has already been closed and given to the passage archives (e.g. after ten years)? Is it true that GAPA only gives the right to inspect and copy the file before the administrative procedure is complete? Along with that our administrative agency (holder of public authorization) has no internal legislative acts for dealing with archival materials.

Answer:

According to GAPA the purpose of inspection of the file is the exercise of rights and legally insured interest of parties as determined by various regulations for individual administrative sections. It is one of the core rights of defence, which is an internationally established standard, such as part of fair process after Article 6 of the European Convention on Human Rights or good administration after Article 41 of Charter of Fundamental Rights of the European Union.
It is therefore necessary to interpret these rights in a wider context of possible beneficiaries. As the material legitimacy for inspection of the file is unquestionable, meaning the person has already been acknowledged as a party in the process or has otherwise shown legal interest, the right does not have a time limit (Article 82 of GAPA). It can only be explicitly limited by a sectoral law parent to GAPA, where it is more sensible by the nature of the matter or on a pro-rata basis compared to the protection of other person’s rights (e.g. inspection of the adoption documentation for a limited amount of years after the adoption or until the adoptee is of legal age). However GAPA itself does not determine any time limits, only the question of legitimacy.
Moreover in connection with legal means it is after GAPA specifically justified that parties and other persons with legal interest have the right for inspection following the time limits of the exercise of the right even after the finality and completeness of the matter. Nonetheless a person may request an inspection of the file based directly on the right of the renewal of a proceeding due to the exemption of the accessory participant (see Article 260 of GAPA).
The materials regarding administrative procedures are kept permanently due to external legal effects of decisions upon administrative matters. This follows the directives of the Decree on administrative operations, which is also binding for holders of public authorization (see Article 194 of DAO). Therefore the internal regulation of the administrative agency may only regulate those areas and matters not already defined by GAPA or DAO.
A legitimate person may therefore request an inspection of the file even ten years after the procedure is completed, where the latter notion can be interpreted in different ways - whether the limitation does not exist after the completion of the procedure with the decision at the inferior level or the finality or completeness. In our opinion the only possible limitation would be when the legal effects of the acts in the matter would no longer be in effect and the depositor of the request for inspection would not be able to prove the exercise of other legal interests (i.e. damages) in regards to the actual and legal state of facts of the closed matter. However in such a case the request would not be granted based on the non-existence of predisposed legitimacy and not that the request was made too late.
It should also be emphasized that the administrative agency may run into the same request for the right of inspection using other regulation, bypassing GAPA (see more in Kovač et. al., Upravno-procesne dileme 2: 120 vprašanj o rabi ZUP s sodno prakso in z uvodno študijo, 2012). It is not uncommon, for example, that different administrative agencies participate in judicial proceedings. In such cases the judiciary regulations apply, as well as the Attorneys Act when it comes to demands of attorneys. The use of GAPA is not necessarily meritory when we are dealing with a (predominantly) administrative agency or a part of public administration - it depends on the procedural matter. If the procedural matter is judicial then judicial (procedural) rules must be used, even if one or more phases of the procedure are executed by a non-judicial administrative agency. It also needs to be mentioned that Personal Data Protection Act allows for inspection of one’s own privacy information, and counts as a special regulation. In such cases GAPA is only used when the sectoral legislation does not meaningfully regulate certain procedural matters.

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