Legal Introduction to Openness and Open Public Data

(This is part 1 of the analysis “Open Data for Beginners”, you can find out more here)

Open data is characterized by three factors:

  • Open access, which means that everyone can obtain data without being discriminated against for any reason
  • Database format, which means that data is accessible in bulk and within compatible sets of data
  • Freedom of reuse, which means that everyone can use, reuse, mix, or redistribute data without bureaucratic obstacles[1]

There is common agreement that open data must be implemented, supported, and promoted. It is a responsibility of governments and their agencies, civil society organizations (CSOs), and the business sector. The involvement of the latter seems obvious: according to estimates, the open data market is worth €40 billion to €140 billion annually.[2] Meanwhile, citizens and CSOs are interested in better and more effective access to the information that is produced and held by public authorities and agencies. Access to information improves the operational capacity of CSOs.

The above-mentioned reasons are also truly important for governments. It is the role of public institutions to simplify the life of citizens, contribute to the work of CSOs, and support the business sector, which, in return, will support the state with significant revenue.[3]

Governments also need to implement transparency, which is guaranteed by law in more than 100 countries worldwide[4] and by a large number of international conventions and treaties. Governments also need to be held accountable for their actions and decisions. But one can understand the full potential of open data only when realizing its direct and indirect impact on the mode of governance and the trust of citizens. The effective and democratic state shares its aggregated knowledge on public matters, involving citizens in decision-making processes,[5] and being open to their feedback. The effective and democratic state counters and fights corruption[6] by staying open, transparent, and ready to engage citizens and CSOs in actions that lead to scrupulous management of public funds.

Therefore “openness,” “open data,” or “open government” must not be associated only with its technological aspects. It should be primarily understood as the will of the government to widely disseminate information on issues that may be controversial and in such a manner that society can form its own judgments. A municipality that disseminates the data on the time schedules of buses has not demonstrated much of a commitment to transparency or democracy, but if it publishes the results of public procurement or statistics on the effectiveness of police activities, it has shown that commitment.

It has to be emphasized that

technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.”[7]

However, one has to bear in mind that

while ICT [information and communication technologies] is not a magic bullet when it comes to ensuring greater transparency and less corruption … it has a significant role to play as a tool in a number of important areas.[8]

Being transparent, opening data, and constructing the necessary technological infrastructure to support transparency and accountability should show an honest commitment. The Organization for Economic Co-operation and Development (OECD) warns that

the challenge is not to introduce digital technologies into public administrations; it is to integrate their use into public sector modernization efforts.”[9]

Legal background

Open data is also a legal issue. When trying to define open data, it is also necessary to refer to the legal documents that have established the contemporary viewpoint that considers freedom of information to be part of human rights protection system. The unique nature of the right to information as a human right was already highlighted during the first session of the United Nations in 1946. In Resolution No. 59 on Convening an International Conference on the Right to Information — adopted on December 14, 1946 — delegates stated that

Freedom of information is a fundamental human right and the touchstone of all the freedoms to which the United Nations is consecrated.[10]

This means that someone who wants to exercise the right to education should be able to access data on the effectiveness of schools in the region. The same might apply to exercising the right to health by having access to data on sanitary conditions in specific hospitals.

The U.N. resolution also stipulates that freedom of information is primarily understood as the right to receive information and as the consequence to distribute it freely. This principle regarding distribution of information is also adopted in the International Covenant on Civil and Political Rights.[11] It confirms that open data is not only about granting open access, but also about allowing people to distribute the data to an unlimited number of people. It is not enough to have access to raw crime statistics. Those statistics will be even more useful if someone communicates them in a way that can be better understood by the general public, for example, by visualizing them using a map.

The U.N. Human Rights Committee explicitly specified[12] that access to information must be understood in this context as access to public information held by public authorities and other entities performing public functions, regardless of the format and the source of the information. The manner in which the information is released has significant meaning for phenomenon of the “open data.” It is the responsibility of the state to deliver information in a proactive way. The Council of Europe’s Convention on Access to Official Documents[13] states that

at its own initiative (…), a public authority shall take the necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest.”

This general commitment is followed by numerous, more precise, directions. The Open Government Partnership Declaration[14] obliges its members to

systematically collect and publish data on government spending and performance for essential public services and activities” and “to pro-actively provide high-value information (…).”

The G8 Open Data Charter[15] notes that

“people expect to be able to access information and services electronically when and how they want.

The need for proactive delivery of the information was also recognized by the European Union,[16] which harmonizes legal systems, therefore enabling EU member states to improve the reuse of public information. To facilitate quick access to quantitative and qualitative data, public institutions have to agree that “all official documents are in principle public,” as the Council of Europe’s (CoE) Convention on Access to Official Documents states.

Access to data does have some exceptions. The CoE Convention allows governments to restrict access only on the basis of the “protection of other rights and legitimate interests[17].” Access to data is similar to other human rights: It should be exercised freely unless it may negatively affect other rights or public interests. Opening data sets with information on political parties’ financial supporters might interfere with protecting the right to privacy. Access to data on public expenditures must sometimes yield to the fact that information might be protected by trade secrets, copyrights, or national security interests. But except for the consideration of the impact upon other human rights, only the sky is the limit.


 

[1] This definition inspired by Towards a European Strategy to Reduce Corruption by Enhancing the Use of Open Data. National Research: United Kingdom. Available at http://www.tacod.eu/wordpress/wp-content/uploads/2015/04/National_Research_UK_def.pdf http://www.tacod.eu/wordpress/wp-content/uploads/2015/04/National_Research_UK_def.pdf. (Accessed October 1, 2015.)

[2] Vickery, G., 2013. Review of Recent Studies on PSI Re-use and Related Market Developments. Information Economics. Paris.

[3] A report by Deloitte for the Department for Business, Innovation and Skills in the UK estimated the annual value of time saved to customers through Transport for London’s open data (i.e., access to real-time travel information) at up to £58 million. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198905/bis-13-743-market-assessment-of-public-sector-information.pdf. (Accessed October 1, 2015.)

[4] At http://www.rti-rating.org/country-data, one can find the details and rating of freedom of information legislation in 102 countries worldwide. (Accessed October 1, 2015.)

[5] For this study, participation in decision-making processes means: “the involvement of citizens in a wide range of policymaking activities, including the determination of levels of service, budget priorities, and the acceptability of physical construction projects in order to orient government programs toward community needs, build public support, and encourage a sense of cohesiveness within neighborhoods.” See http://www.unpan.org/DPADM/ProductsServices/Glossary/tabid/1395/language/en-US/Default.aspx. (Accessed October 1, 2015.)

[6] International documents do not generally include a definition of corruption. For the purpose of this study, corruption is defined as “the abuse of public office for private gain,” which is a definition proposed by the World Bank. See http://www1.worldbank.org/publicsector/anticorrupt/corruptn/cor02.htm#define. (Accessed October 1, 2015.) A more expanded definition can be found in the GRECO 1999 Civil Law Convention on Corruption, which is available at http://conventions.coe.int/Treaty/en/Treaties/Html/174.htm (accessed October 1, 2015), where it is stated that “‘corruption’ means requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof.”

[7] Yu, Harlan, and Robinson, David G., 2012. The New Ambiguity of “Open Government.” 59 UCLA L. Rev. Disc. 178.

[8] Strand, C., 2010. Introduction. In C. Strand (Ed.), Increasing Transparency and Fighting Corruption through ICT: Empowering People and Communities (Vol. 8). SPIDER. doi:10.1016/0083-6656(66)90013-4.

[9] Recommendation of the Council on Digital Government Strategies.

[10] Available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/10/IMG/NR003310.pdf?OpenElement (Accessed October 1, 2015.)

[11] Available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. (Accessed October 1, 2015.)

[12] General Comments No. 34 of the Human Rights Committee on Art. 19 of the International Covenant on Civil and Political Rights. Available at http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. (Accessed October 1, 2015.)

[13] Available at http://conventions.coe.int/Treaty/EN/Treaties/Html/205.htm. (Accessed October 1, 2015.)

[14] Available at http://www.opengovpartnership.org/about/open-government-declaration. (Accessed October 1, 2015.)

[15] Available at https://www.gov.uk/government/publications/open-data-charter/g8-open-data-charter-and-technical-annex. (Accessed October 1, 2015.)

[16] Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. Available at http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:02003L0098-20130717. (Accessed October 1, 2015.)

[17] Preamble of the Council of Europe Convention on Access to Official Documents