IN THE INFORMATION SOCIETY
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GREEN PAPER ON PUBLIC SECTOR INFORMATION IN THE INFORMATION SOCIETY |
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Regional Government of Valencia1.- INTRODUCTIONThis document contains a draft response to the Green Paper on Public Sector Information in the Information Society COM (98) 585 – published by the European Commission in February 1999. 2.- INSTITUTIONS REPRESENTED BY THIS DOCUMENTThis response has been endorsed by the following institutions:
Both public authorities are making in the last years very active efforts to involve their citizens in the Information Society. They are alsoorganisations are members of a consortium participating in the Infoville project, which is part of the European Commission’s Information Technology Program. The object of this Project is to develop virtual communities, which are piloted by the Public Sector and promote the development of the Information Society. 3. - TERMS FOR PREPARING THESE RESPONSESThe opinions expressed in this document have been drafted with a view to the following issues:
Any decision regarding policy for Public Sector information must take into account the above points. 3.1. - Basic rights and liberties of citizens Actions taken by European institutions which effect the rights and liberties of European citizens must consider, among other points, the following: The accumulated laws regarding fundamental rights and civil liberties, especially the following documents prepared by the European Council:
Regarding Treaty articles:
EU legislation regarding data protection and specifically:
3.2. - Role of the public administrationThe following should be taken into account when considering the role of Public Administrations – European, national, regional and municipal.
3.3. - Role of the EU regarding the establishment of a common market. The following should be taken into account when considering the role of the European institutions in establishing a common market:
Based on the above, European institutions must never put the objectives of creating a single market above the protection of fundamental rights and liberties, nor can the EU institutions assume more powers than those conferred in the Treaty. The EU must always respect the subsidiary principal as indicated in article 3B of the Treaty of the European Community. 4. - OTHER CONSIDERATIONS RELATIVE TO THE ROLE OF THE PUBLIC SECTOR IN THE CREATION OF THE INFORMATION SOCIETY.4.1. - Information, the Information Society, and economic and social developmentThe institutions supporting this document accept the following regarding the Information Society and the EU.
4.2. - The Role of the Public Administrations in the Information SocietyPublic Administrations are destined to play a fundamental role in the development of the Information Society:
4.3. - Public Sector InformationIn performing its role the Public Sector collects and handles a large amount of information regarding the activities of European citizens and businesses. Leaving aside information related to State security and civil protection – this information can be divided into three categories
4.4. - Consequences, in the Public Sector, of the creation of the Information Society The following should be taken into account regarding the use of information held by the Public Sector:
4.5. - The responsibility of the Public Sector in the creation of the Information Society When considering the responsibility of the Public Sector in the creation of the Information Society the following should be taken into account:
5. - CONTENTS OF THE GREEN PAPER ON PUBLIC SECTOR INFORMATION AND THE INFORMATION SOCIETYOur comments on the ideas put forward by the Commission in the Green paper follow: 5.1. - The position of the European Commission The following observations can be made on the position of the Commission regarding access to Public Administration information:
5.2. - EU action regarding the use of Public Administration information It is worth remembering the following when considering possible EU actions regarding Public Administration information:
6. - RESPONSES TO QUESTIONS RAISED BY THE COMMISSIONAs indicated earlier, it is necessary to distinguish between three types of information:
Future legislative actions by the EU regarding Public Sector information should selectively differ – depending on the type of information in question. The following sections include various comments which may be interesting: 6.1. - Actions regarding rights and fundamental liberties The actions of the EU should be orientated towards enforcing, and if necessary, strengthening legislation related with the protection of Public Administration information associated with the rights and fundamental freedoms of citizens and businesses. The initiatives started by the Commission as a result of the consultations undertaken in relation with the green book should respect Treaty articles regarding rights and civil liberties, as well as the accumulated rights on data privacy as legislated in the respective directives. These initiatives should also be coherent with the work currently being performed by the commission in the field of data protection – in particular the work of the DG XV within the Data Protection Working Party. Additionally, any EU action should take into account the Recommendations of the Council of Europe in this area – which have been endorsed by all EU member States. 6.2. - Actions related to the basic roles of Public Administrations It is necessary to recognise the right, indeed the obligation, of the Public Administrations to use the resources of the Information Society to improve the service offered to citizens and business. In this way the Public Administrations can contribute towards the further development of the Information Society. In the initiatives proposed by the Commission as a result of the Green Paper consultations, it must be made absolutely clear that the Public Administrations have the right to obtain the technical resources necessary to manage, and publish all non-confidential information. This activity can never be considered unfair competition with the Private Sector if the information relates to legitimate Public Sector activities. In this respect the initiatives proposed by the Commission should be unambiguous – in order to prevent the idea taking root that private companies could replace Public Administrations in carrying out their legitimate roles. Nevertheless, it is worth suggesting that the Public Administrations use virtual communities and information networks, in partnership with private institutions, to promote the use by citizens and businesses of the information offered by public bodies. This action will further encourage the growth of an Information Society. To encourage use of this information, the price charged to the user should be nothing – or near nothing. Only when the user intends commercialising the information should a higher, but still reasonable, price be charged. 6-3. - Actions related to information from complementary activities of Public Administrations It would be useful to begin processes to encourage a widespread co-operation between public and Private Sectors in the use of information which is not confidential, or related to the basic role of Public Administrations. The objective will be to ensure the best possible use of this information. It is possible that the information belonging to this category is different in each member State. As a result, the Commission should let each member State decide the best legislative framework for the implementation of any Green paper initiatives. Only in those cases where there is a wide consensus between administrations can harmonisation be applied by means of a directive from the European Parliament and Council. This harmonisation could limit the restrictions which a Public Administration could impose on public access to information, but the harmonisation measure must itself respect the principles of subsidiarity. As mentioned in the Green paper, this applies in the case of environmental information, which is regulated by Directive 90/313/CEE. Prices for this information should be set in accordance with the above paragraph. 7. - ANSWERS TO THE QUESTIONS RAISED BY THE COMMISSIONMany of the questions raised by the Commission have been answered by this document, especially in sections five and six. Nevertheless, this section will add further comments regarding the questions. 1. - Which definition of Public Sector is the most appropriate in your view? What categories of Public Sector information should be used in the debate? Each member State defines the Public Sector differently. In general, the definition should include all activities under the responsibilities of local, regional, national and European Public Administrations and public owned companies, foundations and other institutions. The object of the debate should be to decide how much protection is needed for all the types information handled by the Public Sector. Section 6 of this document analyses this question. 2. - Do different conditions for access to Public Sector information in the member States create barriers at a European level? If so, what elements are concerned: interest requirements, exemption, time, format, or quantity? What solutions can be envisaged? This depends on what is understood by access barriers. It is necessary to distinguish between what are structural measures, protective measures for citizens and businesses, and others that are circumstantial and result from the different administrative procedures in each member State. 3. - Could the establishment of European meta-data (information on the information that is available) help European citizens and businesses in finding their way around Public Sector information throughout Europe? If so, how could this best be realised? What categories of content should directories of Public Sector information resources contain? It is worth making an effort to unify the various access procedures for information open to the public – by introducing common standards or by unifying help and search procedures. 4. - What bearing do different pricing policies have on the access to, and exploitation of, public information? Does this create differences in opportunities for citizens and businesses at a European level? Pricing policy should be left to each Public Administration. It does not seem reasonable to prepare a European pricing scale for information generated by the Public Sector. To encourage free market pricing, and prevent the creation of unfair privileges, it will be necessary to guarantee that businesses can enjoy transparent access to commercially usable information. 5. - To what extent, and under what conditions, could the activities of Public Sector bodies in the information market create unfair competition at European level? In our opinion this question is wrongly phrased and a simple answer could be mistaken. As explained in section 6, exploiting for the Public Sector information generated by the Public Sector cannot represent unfair competition for the simple reason that it has been generated by public resources and under public duties. Instead of analysing possible unfair competition from public bodies; a possible invasion by private companies of the roles assigned to public organisations should be analysed. These companies should wish to acquire and handle the information generated by the Public Sector in its own benefice. Arguments regarding possible unfair competition from a Public Sector which is undertaking its legally assigned responsibilities should not be used to impede the Public Sector from modernising its information technology capabilities. 6. - Do different copyright regimes within Europe represent barriers for exploitation of Public Sector information? Information handled by the Public Sector, by its nature, does not tend to be subject to copyright. Where it is subject to copyright, any subsequent users of the information are generally required to acknowledge the source of the information, rather than to pay a financial charge. However, the over-vigorous commercial exploitation of necessary copyright protection by monopolistic suppliers of essential background information for Public Sector services (e.g. digital mapping for Geographic Information Systems) is a cause for concern 7. - Do privacy considerations deserve specific attention in relation to the exploitation of Public Sector information? In what way could commercial interests justify access to publicly held personal data? and8. - To what extent may the different member States’ liability regimes represent an obstacle to access, or exploitation, of Public Sector information? Given the reasons put forward in this document, specifically in section 5, it is surprising that the Commission asks this 7 and 8 questions and opens the possibility that commercial interests and job creation could be used to justify a lowered level of protection for Public Sector information – and so harming the rights of citizens and businesses. The Commission should remove these questions from the list. The answer to them, as phrased, is a resounding and definitive NO”. 9. - To what extent are the policies pursued by the EU institutions in the field of access and dissemination of information adequate? In what way can they be further improved? European institutions have made an important effort to open access to the information they generate. Nevertheless, the procedures for accessing this information are not uniform. It will be necessary to make a continuing effort to improve access to information generated. Local governments face huge challenges if the aims of the Green book are to be met. There will be especially a large need for education of employees. The EU institutions should consider possibilities to support the member states with this task, for instance by developing methods and support for educational programs. 10. - Which actions should be given priority attention at European level? The European institutions should carefully measure future actions with respect to Public Sector information as they run the risk of colliding with the national powers of the member States and institutions. Existing Treaties do not confer European institutions with powers in these areas, and so the application of the principle of subsidiariness should mean an increase in the protection given to EU citizens and businesses. This view is supported by Directives 95/46/EC and 97/66/EC – as well as the conventions and recommendations of the European Council, which have been endorsed by all EU members. 8. - REFERENCESEuropean Union documentsEuropean Union Treaty Article B The Union shall set itself the following objectives:
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 3b of the Treaty establishing the European Community. Article F
European Communities Treaty Article 3b The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. Article 7a The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 7b, 7c, 28, 57(2), 59, 70(1), 84, 99, 100a and 100b andwithout prejudice to the other provisions of this Treaty. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty. European Union Directives
European Commission Documents
European Council documentsEuropean Council document regarding data protections are available in the following site: http://www.coe.fr/dataprotection
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