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

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Chapter III : Issues linked to access and exploitation of public sector information

The access to public sector information as well as the commercial exploitation of this information entail a whole range of issues that need careful consideration. They vary from the definition of public sector information to issues related to privacy and liability.

The questions that follow each section are for guidance only. Readers are invited to take an open and innovative approach, considering all areas discussed here and other issues which they consider to be of relevance.

III.1 Definitions

Public sector information

A definition of public sector information is important because it will help to determine the scope of the replies to this Green Paper and a possible follow-up.

The definition of public sector varies from one Member State to another. In the laws and discussions on access to public sector information three possible approaches appear to emerge:

  • The functional approach, in which the public sector includes those bodies with state authority or public service tasks 19 .
  • The legalist/institutional approach: only bodies that are explicitly listed in the relevant law(s) have a public sector character.
  • The financial approach, whereby the public sector includes all bodies mainly financed by public funds (i.e. not operating under the normal rules of the market).

Whatever methodological approach will be chosen, the information of public bodies at different levels of government, central, regional and local, shall be taken into consideration.

In all cases, state owned companies operating under market conditions and subject to private and commercial laws are not meant to be covered by either of these definitions.

Types of public sector information

Public sector information may be classified along different lines. A first possible distinction is the one betweenadministrative and non-administrative information. The first category relates to the function of Government and the administration itself and the second category to information on the outside world that is gathered during the execution of public tasks (Geographic Information, information on businesses, on R&D etc.).

Within administrative information a further distinction can be made between information that is fundamental for the functioning of democracy (like laws, court cases, Parliamentary information) and information that does not have such a fundamental character.

Another possible distinction draws a line between information that is relevant for a general public (like Parliamentary information) or for a very limited set of persons that have a direct interest.

From a market perspective, information can be divided according to its (potential) economic value. It should be noted that both administrative and non-administrative information can have a considerable market value.

The above mentioned distinctions may have consequences for the way the different types of information are treated: They can have a considerable bearing on issues like pricing and copyright and touch upon delicate issues like data protection.

Question 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?

III.2 Conditions for access to public sector information

The existence of an access right does not mean automatically unlimited and unconditional access to public sector information. In this regard different Member States and the EU apply different rules and have different practices.

The different conditions for access raise a number of questions that are relevant for both citizens and for the competitiveness of businesses. Views related to both perspectives are welcome.

Existence of an interest

The large majority of national laws do not require a person or company need to have a particular interest as a condition for access to public sector information. However, since this may be the case in certain circumstances, the issue merits discussion.

Exemptions to the right of access

All national regulatory frameworks provide for exemptions to the right of access. Such exemptions may roughly be distinguished in four categories:

  • exemptions in the interest of the state for example relating to national security, public order, economic interests, international relations, legislative procedures, etc. ; these are mostly of exclusive Member State competence.
  • exemptions in the interest of third parties, for example relating to privacy, intellectual property, commercial secrets, judicial procedures, etc.
  • exemptions to protect the decision making process, for example, preliminary or ‘internal use’ of information etc.
  • exemptions to avoid unreasonable costs or workload in the administrations concerned, for example information already published or excessive requests.

Directive 90/313/EEC provides a list of possible exemptions which cover all of the above areas of concern. 20

Exemptions and their interpretation differ to some extent between Member States. Some commentators consider that this may interfere with the ability of companies and citizens to access the information which they need on a pan-European basis.

Time, quantity, format

The emergence of new technologies and faster networks makes issues of time, quantity and format of information less relevant. If information is available over electronic networks instantaneously, citizens can download what they need and when and where they need it.

However, as not all public sector information will be available in electronic format in the foreseeable future, the question remains of how quickly the public authorities should react to requests and how much information they should provide. These issues are related to the need to avoid unreasonable requests and excessive workload.

Time

National access laws vary as to the deadlines set for the public sector to respond to an access request. The French law gives a 2 month deadline, while the Swedish law stipulates a "prompt response". In some cases, there is no reference to time limitsDirective 90/313/EEC gives a two month time limit.

Quantity and Format

The question of whether there should be limits to the quantity of information requested is more complex. In principle, some quantity limitations may be imposed if information in manual format requires an excessive effort to assemble. The need to ensure low cost access for citizens to information needs to be balanced against the need to avoid excessive burdens on the public services. In cases where public sector information is available and can be accessed in electronic format, quantity limitations are more difficult to justify.

In the execution of its primary tasks, the public sector produces a vast amount of raw data. The format of this public sector information may often be unattractive and difficult to access. Having taken this issue into account, many public sector bodies are engaged in tailoring raw data to customer needs.

This also draws the attention to another interesting issue: the right of citizens to have access to the raw data and data at intermediate levels and not just to the data in their final, elaborated form.

Question 2 :

Do different conditions for access to public sector information in the Member States create barriers at European level?

If so, what elements are concerned: requirement of an interest, exemptions, time, format, quantity?

What solutions can be envisaged?

III.3 Practical tools for facilitating access

Citizens and businesses alike can be seen as the ‘clients’ of the information services that are offered by the public sector. The concept of client implies that the needs of citizens and businesses are being taken into account when the services are conceived and that user-friendly search mechanisms are put in place.

The data sets available in the public sector are numerous.

A recent estimate of the number of public databases in the Netherlands alone came up with a figure of some 36.000 21

To help the ‘information clients’ in finding their way in this mass of data it may be necessary to establish meta-data and directories. This leads to the following question:

Question 3 :

Could the establishment of European meta-data (information on the information that is available) help the European citizens and businesses in finding their way in the 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?

III.4 Pricing issues

Unit price for information on business

Pricing as well as pricing models vary enormously in different Member States and in different public sector bodies of the same Member-State. As an example, figure 3 shows the wide range of prices Dun&Bradstreet, a business information provider, must pay when accessing companies registered data and financial statements throughout Europe.

Pricing Models

The 1994 French circular distinguishes between information collection and production costs (which are not charged for) and other costs, such as printing, updating, data retrieval and transmission (which can be charged for). Furthermore it distinguishes between types of information and types of use.

The UK guidelines 1985 DTI guidelines favour a market approach: "Where an established market exists for Government-held tradable information provided by them already, Departments should charge a reasonable market price. In the case of tradable information which has not previously been exploited, contracts may initially be on the basis of charging only for costs incurred over and above those that would be incurred normally in handling the data or information for their own purpose".

The 1989 European Commission Synergy Guidelinesfavour a distribution cost approach: "Pricing policiesmay vary depending on the nature of the information; A price should be established which reflects the costs of preparing and passing it to the private sector, but which does not necessarily include the full cost of routine administration. The price may be reduced if provision of the resulting information service is deemed to be necessary in the public interest".

The US law allows charging for search, duplication and review costs but not for the value added by the publicsector to the raw data. The US public sector should see the adding of value only as a tool to increase efficiency, not as a means for profit making.

In the long run, the current trend to make public sector information increasingly available free of charge on the Internet may have an effect of prices and pricing models.

Studies and discussions have shown that the dual purpose of a public sector information policy - access and exploitation - calls for a pricing policy that should take into account a number of interests:

  • affordable access for all
  • exploitation potential
  • fair competition (treated in the next paragraph)

People interested in consulting

Pricing conditions are in the first place important in the discussion on access. Public information is produced at the expense of taxpayers. The question may therefore be raised whether public organisations have a right to charge for the provision of information. It may be argued, however, that it is usually a small section of the public who wish to use a particular public sector information product and that they should not be subsidised by the rest of the population. In fact, people are willing in certain circumstances to pay for the (information) services offered. Figure 4 clearly shows this.

But pricing should be such that it does not preclude the access for all. In this respect mention should be made of the French initiative to identify categories of public sector information considered to be "essential" in view of the exercise of democratic rights by citizens. In principle, such public sector information is provided for free.

At the exploitation side, it is important that efforts made by the public sector to render information accessible for commercial exploitation are recognised and rewarded. At the same time, if the private sector is to develop competitive products from public sector information, the raw materials must be available to them at a reasonable price.

Pricing is therefore a crucial issue for the exploitation of public sector information by the content industries. It largely determines whether they will find an interest in investing in value added products and services based on public sector information. American companies benefit from the fact that they can obtain US public sector information for free.

An American software firm is about to release a business mapping software product allowing users to find and illustrate points on the map, integrate maps in their documents and identify the trends of their business on the map. The objective is to make it easy for business users in organizations of any size to use maps to make better-informed business decisions. Over 15 million addressed street-level segments are included for all US and worldwide country-level boundaries. The estimated retail price of the product is $109.

As an element of comparison, a German mapinfo company is offering geodata for one German state unit only for a total of 9.728 DM + VAT 16%.

A UK based environmental pressure group has complained after the Ordnance Survey, Britain’s national mapping agency, tried to charge the organisation more than £365.000 for digital mapping base-data of the country.

Question 4:

What impact do different pricing policies have on the access to and exploitation of public sector information?

Does this create differences in opportunities for citizens and businesses at European level?

III.5 Competition

Public sector bodies have cost structures which may differ from those of private businesses. In certain circumstances, it is possible that they offer products at less than the market price, or cross-subsidise other areas of their operations through the sale of information.

Fair competition may thus be adversely affected once public sector organisations offer added-value information products on the market. This may also be the case when exploitation rights or exclusive contracts are ceded to semi-private or private sector bodies. Unfair competition situations may also result from information being released at different speeds to different parties.

National legislation

All Member States enforce some general competition rules. Some legislation specifically deals with competition issues in respect of commercialisation of public sector information. The UK guidelines state that government departments should not aim to compete with the private sector. According to French rules a public body should not directly intervene in the market and may only provide value added information services if this is in line with their legal mission. Divergent application of competition rules in different Members States may create market distortions.

EU competition rules

EU competition rules are determined by articles 85-94 of the EC Treaty. Several competition issues in this field are interrelated:

  • State aid 22 : market distortion through public subsidies should be avoided
  • Abuse of dominant position 23 : access to data not available elsewhere should be under reasonable conditions, on a cost-oriented basis (essential facility doctrine)
  • Agreements between companies 24 ;
  • Monopolies 25 .

In the context of the State aid rules, argued that public information providers may be, under certain circumstances, in competition with the private sector. Public financing could then constitute a state aid 26 that could benefit from certain derogations 27 . Article 6 of the EC Treaty which prohibits discrimination on grounds of nationality is also relevant. Furthermore, the 1989 Synergy guidelines published by the Commission make reference to competition rules.

For competition policy purposes, a distinction is often drawn between information for which only one source exists, which must generally be made available at reasonable conditions, and information which is available from different sources (diversity principle), for which market prices may apply.

Competition is also an essential principle of public procurement. It applies both to publishing contracts (where the public institution pays for publication or subsidises it) and to distribution contracts (in those cases where there are limitations to the number of distributors, in order to reach certain targets, e.g. geographical coverage).

New technologies change fixed and variable costs, new national and multinational players appear on the market which creates opportunities to reduce prices or to increase the distributions targets. This may require changes in procurement policies and in tendering terms.

Question 5 :

To what extent and under what conditions, could activities of public sector bodies on the information market create unfair competition at European level?

III.6 Copyright issues

The Bern Convention (Art. 2 (4)) leaves Member States the freedom to determine the protection to be granted to official texts of a legislative, administrative or legal nature, and their official translations.

The vast majority of Member States have used this provision to exclude these texts from any copyright protection. As to information of a different nature produced by the public sector, most Member States have extended the previous exclusion also to this information material. However, the extent to which copyright is granted to these materials does not limit in itself access by the public to the information.

The public sector has two main reasons to protect its information. In the first place it may be a source of income. This may pose however questions in the field of competition. It may create market distortions between companies in the different Member States that want to reuse the information.

Another reason for public sector bodies protecting their information could be the wish to maintain the integrity of the content. This is relevant in the perspective of liability questions

Question 6 :

Do different copyright regimes within Europe represent barriers for the exploitation of public sector information?

III.7 Privacy issues

Part of the commercially interesting information held by the public sector is of a personal nature, i.e. relates to or allows the identification of individual persons. This is for example the case with respect to population, company, vehicle or credit registers. It also applies to information on medical, employment or social welfare data. Access to such information may be of use to private industry for marketing, research or other purposes. In such cases the right to information needs to be balanced with the individual’s right to privacy. All national access laws show awareness of the need for such a balance.

On 24 October 1995 Directive 95/46/EC 28 was adopted on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This Directive establishes binding rules for both the public and the private sectors and achieves the necessary balance between the principle of access to public sector information and the protection of personal data. It must be fully observed in cases of personal data held by the public sector.

It is up to the public bodies responsible to apply the agreed balances between the need for open access for commercial or other purposes on one hand and the right to privacy on the other, taking into account the principles established by the EC Directive, in particular the principle of purpose limitation. In addition, national supervisory authorities have an important role and courts are expected to decide in cases of dispute.

In the specific case of statistical data, the well-established statistical confidentiality principle reinforces the data protection level. Statistical confidentiality prevents not only access to any other private users but also the transmission of confidential data to administrative bodies other than statistical offices.

The emergence of the Information society could pose new risks for the privacy of the individual if public registers become accessible in electronic format (in particular on-line and on the Internet) and in large quantities.

Question 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?

III.8 Liability issues

Clarity as to the liability issues may have a positive impact on access to and the exploitation of public sector information. In fact, liability may be a reason for the public sector to operate a prudent information policy. If the public body provides information to a requestor directly it could, in principle, be liable (in accordance with national liability laws) for any damages caused to the citizen concerned.

The issue becomes more complex when more than two parties (public body, requester) are involved in the processing and dissemination of information. This is the case, for example, when the public sector has ceded the information to a private company. In that case, public bodies could still be liable for the information provided, unless they have limited this liability by contract.

The more actors are involved, the more difficult it becomes, in cases of conflict, to identify the one who has defaulted or acted unlawfully. Some commentators believe that coordinated European approaches to this issue are particularly important in view of the difficulty of establishing which national law applies in cases involving several countries 29 .

Question 8 :

To what extent may the different Member States’ liability regimes represent an obstacle to access or exploitation of public sector information?

III.9 EU information

As indicated in paragraph I.1 and in annexe 2 of this Green Paper, the EU is developing policies to improve the access to its information and the dissemination of this information. All EU institutions maintain for example a family of WWW sites accessible through one single gateway (http://europa.eu.int) and offering a large amount of information.

It would help these policies if, in reaction to this paper, comments were received on the actions in this field and the way they are perceived. This leads up to the following question.

Question 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 further be improved?

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