info2000 logo GREEN PAPER ON PUBLIC SECTOR INFORMATION
IN THE INFORMATION SOCIETY

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Regional Government of Valencia


1.- INTRODUCTION

This 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 DOCUMENT

This response has been endorsed by the following institutions:

  • Generalitat Valenciana
  • Hampshire County Council

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 RESPONSES

The opinions expressed in this document have been drafted with a view to the following issues:

  • Basic rights and liberties of citizens
  • The role of the Public Administrations
  • The EU and the establishment of a common market

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:

  • European Convention for Protection of Human Rights and Fundamental Freedoms”, 4 November 1950 and its modifications.
  • European Convention for Protection of Individual with regards to Automatic Processing of Personal Data”, 28 January 1981.
  • Recommendation of the Committee of Ministers to Member States for the Protection of Privacy on the Internet”, 23 February 1999

Regarding Treaty articles:

  • articles B y F of the Treaty of the European Union regarding the rights and interests of European citizens, modified by articles 2 and 6 of the Treaty of Amsterdam.
  • Article 129A of the Treaty of the European Communities, and specifically the points regarding consumer protection.

EU legislation regarding data protection and specifically:

  • Directive 95/46/CE of the European Parliament and Council of 24 October 1995 regarding the protection of the citizen with respect to the handling of personal data and the free circulation of this data.
  • Directive 97/66/CE of the European Parliament and Council of 15 December 1997 regarding the handling of personal data and the protection of privacy in the telecommunications sector.
  • The laws of member States regarding data protection when they go beyond EU law in the protection of civil rights and liberties.

3.2. - Role of the public administration

The following should be taken into account when considering the role of Public Administrations – European, national, regional and municipal.

  • Roles assigned to the national, regional and municipal Public Administrations by the Laws of each member State.
  • Roles and powers of the various European administrations as recognised in the european Treaties.
  • Recognition of the requirement of the Public Administrations to fulfil their given roles in the most efficient manner possible – in relation to citizens, companies and institutions.
  • Recognition of the right of Public Administrations – European, national, regional, and local – to provide themselves with the most adequate human and technical resources needed to efficiently fulfil their assigned tasks.

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:

  • Articles 2, 3 y 3.A of the Treaty of the European Community regarding the creation of a common market and monetary union.
  • Article 3.B of the Treaty, specifically: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. ...”
  • Article 7.A of the Treaty, specifically: The Community shall adopt measures with the aim of progressively establishing an internal market........without prejudice to other provisions of this Treaty”.

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 development

The institutions supporting this document accept the following regarding the Information Society and the EU.

  • The urgency of stimulating the creation of the Information Society as a motor of economic growth in the EU.
  • The need to take advantage of the possibilities offered by the Information Society to promote social development in Europe.
  • The need to avoid the possibility that the development of the Information Society could cause an increase in the territorial imbalance in the EU.
  • The obligation of the Public Administrations to participate in the development of the Information Society within the framework of their powers and resources.

4.2. - The Role of the Public Administrations in the Information Society

Public Administrations are destined to play a fundamental role in the development of the Information Society:

  • As a users of information and communications technology for fulfilling their responsibilities and services to citizens and businesses.
  • As promoters of the development and implementation of Information Society applications in the economic and social fabric of the nation, and in co-operation with other social-economic groups.
  • As monitors of the rights and duties of all the groups participating in the development of the Information Society.

4.3. - Public Sector Information

In 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

  • Information regarding the rights and liberties of citizens and companies.
  • Information regarding the basic activities of Public Administrations.
  • Information from other types of non-basic activities undertaken by Public Sector.

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:

  • The creation of the Information Society should never negatively effect the security of the State and its citizens.
  • The creation of the Information Society must never cause a loss in civil rights and fundamental freedoms.
  • The creation of the Information Society should energise and modernise the basic roles of Public Administrations – and in no case should it serve to undermine these roles or call them into question
  • The Information Society should enable the re-consideration of how Public Administrations can best undertake non-basic additional activities.

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:

  • Despite the importance of the role of Public Administrations in developing the Information Society they should not, and cannot, accept sole responsibility for its development.
  • Despite the attractiveness of the idea of being able to access information held by Public Administrations, and the possibilities this presents for the Information Society, it will be necessary to protect and reinforce civil rights and freedoms.
  • The interests of the Private Sector in accessing and using information held by public bodies should never be used as an excuse to reduce their basic role of Public Administrations, or limit their right to modernise – especially in IT resources.
  • It is possible to open a wide-ranging co-operation with the Private Sector regarding access to information in the hands of Public Administrations. The objective of this co-operation should be to contribute to the creation of an Information Society by improving the use of this information, and giving a better service to citizens and business. However, information involving State security, civil rights and freedoms and the basic roles of Public Administrations will not be shared.

5. - CONTENTS OF THE GREEN PAPER ON PUBLIC SECTOR INFORMATION AND THE INFORMATION SOCIETY

Our 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:

  • We consider appropriate to consider the need to use the possibilities offered by information technology to improve the access that citizens and businesses have to Public Administration information.
  • We consider equally appropriate to study the question of what is the best way to use this information to help create the Information Society.
  • It is surprising that the Commission questions the right of the Public Administrations to modernise in order to offer citizens and businesses a more efficient service. The Commission argues that modernising may result in unfair competition with the Private Sector.
  • We consider inadmissible that the Commission suggests the possibility of curtailing the right to privacy, and other fundamental freedoms, by arguing that certain information is valuable for Private Sector interests.
  • We consider also inadmissible that the Commission adds to the above argument by stating that allowing access to information that may infringe privacy rights and other civil liberties could stimulate the economy and generate jobs.
  • Finally, it is inadmissible that the Commission puts economic interests before civil rights – even if this should contribute to the creation of an Information Society.

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:

  • EU institutions have the right to adopt legislative measures aimed at encouraging the single market and, if necessary, harmonising national laws.
  • The EU is obliged to protect the rights and interests of its citizens.
  • The EU is also committed by international Treaties to respecting rights and civil liberties.
  • In all cases the actions of EU institutions must comply with existing Treaties and must never contravene the same Treaties.
  • Any action by the European institutions, especially relative to access to Public Sector information, must maintain the necessary equilibrium between liberties and freedoms in such a way that the accumulated rights of EU and national citizens remain uninfringed.

6. - RESPONSES TO QUESTIONS RAISED BY THE COMMISSION

As indicated earlier, it is necessary to distinguish between three types of information:

  • Information regarding the rights and liberties.
  • Information regarding the basic activities of Public Administrations.
  • Information from other types of non-basic activities undertaken by Public Administrations.

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 COMMISSION

Many 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?

and

8. - 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. - REFERENCES

European Union documents

European Union Treaty

Article B

The Union shall set itself the following objectives:

  • to promote economic and social progress which is balanced and sustainable, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty;
  • to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence;
  • to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union;
  • to develop close co-operation on justice and home affairs;
  • to maintain in full the acquis communautaire and build on it with a view to considering, through the procedure referred to in Article N(2), to what extent the policies and forms of co-operation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.

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

  1. The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy.
  2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
  3. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies

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

  1. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Official journal NO. L 281 , 23/11/1995 P. 0031 – 0050
  2. Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector. Official journal NO. L 024 , 30/01/1998 P. 0001 – 0008
  3. Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment. Official journal NO. L 158 , 23/06/1990 P. 0056 – 0058

European Commission Documents

  1. Data Protection Working Party documents 
    DG XV: Internal Market and Financial Services 
    European Commission 
    http://europa.eu.int/comm/dg15/en/media/dataprot/wpdocs/.htm
  2. ARETE 
    On-line services and data protection and protection of privacy”. First Part of the Study 
    Data Protection Law and On-Line Services: Regulatory responses”. Second Part of the Study 
    Study for the Commission of the European Community – DG XV 
    Brussels, December 1998 
    First Part: http://europa.eu.int/comm/dg15/en/media/dataprot/studies/servint.htm 
    Second Part: http://europa.eu.int/comm/dg15/en/media/dataprot/studies/regul.htm
  3. Euro Lex. 
    Directory of Community Legislation in Force. Analytical register. 
    16 - Science, information, education and culture. 
    16.20 - Dissemination of information 
    http://europa.eu.int/eur-lex/en/lif/reg/en_register_1620.html

European Council documents

European Council document regarding data protections are available in the following site: http://www.coe.fr/dataprotection

  1. . Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 005) as amended by Protocol No. 11 (ETS No. 155) of 11 May 1994
    • Article 8

      • 1. - Everyone has the right to respect for his private and family life, his home and his correspondence.
      • 2. - There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
  2. Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108, the 28 January 1981, Entry into force: 1.10.1985)
  3. Recommendation No. R (99) 5 for the protection of privacy on the Internet ·
  4. Recommendation NR(97) 18 on the protection of personal data collected and processed for statistical purposes (30 September 1997)
  5. Recommendation NR(97) 5 on the protection of medical data (13 February 1997)
  6. Recommendation NR(95) 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services (7 February 1995)
  7. Recommendation NR(91) 10 on the communication to third parties of personal data held by public bodies (9 September 1991)
  8. Recommendation NR(90) 19 on the protection of personal data used for payment and other operations (13 September 1990)
  9. Recommendation NR(89) 2 on the protection of personal data used for employment purposes (18 January 1989)
  10. Recommendation NR(87) 15 regulating the use of personal data in the police sector (17 September 1987)
  11. Recommendation NR(86) 1 on the protection of personal data for social security purposes (23 January 1986)
  12. Recommendation NR(85) 20 on the protection of personal data used for the purposes of direct marketing (25 October 1985)
  13. Recommendation NR(83) 10 on the protection of personal data used for scientific research and statistics (23 September 1983)
  14. Recommendation NR(81) 1 on regulations for automated medical data banks (23 January 1981)
  15. Resolution (74) 29 on the protection of individuals vis-à-vis electronic data banks in the public sector
  16. Resolution (73) 22 on the protection of privacy of individuals vis-à-vis electronic data banks in the private sector

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