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The recent outbreak impacted heavily the daily life and work of millions of citizens around the world.  One of the effects was the suspension of the means of access to public information provided by public authorities.

Analyzing the situation in some European countries, it appears that almost all have taken the decision to suspend or delay the processing of the requests for access or re-use of information.

The emergency situation and the resulting lockdown had the effect to slowing down activities of public bodies; furthermore, some resources and departments were redirected to activities in support of the emergency.

In this scenario, one cannot fail to recognise the difficulties that authorities encounter in keeping a service running at a time when the workforce may be depleted, staff may  work from home and may not be able to access physical files.

The hope is that this will not become the new normal once the emergency is resolved.

Let us see what is the situation in some Member States:

 

 SPAIN

Source : Portal de la transparencia  (https://transparencia.gob.es )

Measures: Reales Decretos 463/2020 and 465/2020 suspended administrative deadlines, with the effect of paralyse the transparency law. Real Decreto 537/2020 lifted the suspension as from 1 June 2020. The activities of civil servants have been reduced and this leads to delays in answering the requests for information.

 

 FRANCE

Source: La Commission d’accès aux documents administratifs (https://www.cada.fr/lacada/faq)

Measures: Law no. 2020-290 of 23 March 2020 and Ordinance no. 2020-306 of 25 March 2020 had the effect to suspend the processing of requests until 25 June 2020.

 

 Portugal

Source; http://www.cada.pt/noticias/covid-19

The state of emergency established on 18 May last, was downgraded to a state of calamity on 30 April. The state of calamity should end on July 1.

The state of emergency has not officially changed access to information. However, the activities of civil servants have been reduced and this leads to delays in answering requests for information.

 

 ITALY

Source : Gazzetta Ufficiale

The "Cura Italia" decree-law of 17 March 2020 (art. 67.3) suspended responses to requests for documentary and civic access until 31 May 2020. The state of emergency is in effect until 31 July 2020.

The activities of public administrations are gradually resuming in compliance with anti-covid measures.

 

 GERMANY

Source: https://fragdenstaat.de/

The decisions by the Chancellor and the Heads of the Federal States of March 12 and 22 which limited civic freedom were prolonged until 3 May 2020.

Due to the complex legal framework concerning the access to information, with overlapping between federal and regional laws, it is difficult to monitor the impact of the anti-Covid measures on the activities of public administrations. The website fragdenstaat.de, a hub for requests of access to information is a good monitoring of the situation. The requests are generally processed but several of them are delayed.

 

 AUSTRIA

Source: https://fragdenstaat.at/

The country published one §(?)Decree on 10 March, an Order of the federal minister for social affairs on 16 March and a Law on 16 March which prohibited assembly and movements of persons. Only the last one is still in force. It allows administrations to prohibit access to certain places to prevent the spread of COVID-19.

As in Germany it is difficult to monitor the impact of the anti-Covid measures on the activities of public administrations. The website fragdenstaat.at, like the German counterpart, gives an idea of the reactivity of public administration; and there do not seem to be any major delays in processing the requests.

 

 BELGIUM

Source: transparencia.be

The Arrêté ministériel portant des mesures d'urgence pour limiter la propagation du coronavirus COVID-19

of 18 March 2020 imposed stringent measures to citizens and manufacturing activities until 5 April 2020. Since that date the measures have been gradually relaxed as you may see in a dedicated website. The impact on access to information was limited to the lockdown period. The recent processed requests collected by trasnparencia.be show that the situation is returning to normal.

 

POLAND

Source: informacjapubliczna.org

Since the beginning of March 2020, the country adopted over time three regulations called anti-crisis 1.0, 2.0 and 3.0. Version 2.0 in particular had the effect to suspend the time limits specified in administrative law provisions, providing a legal basis for the suspension of the right to information timelines. Defrosting took place on 24 May 2020.

 

 CZECH REPUBLIC

Source: https://www.infoprovsechny.cz/

The Government of the Czech Republic declared a state of emergency from 12 March 2020 to 17 May 2020. A public debate followed the reopening of the activities. The requests for access to information seem now regularly processed.

 

 HUNGARY

Source: Decree No. 179/2020

The government declared a national state of emergency on 11 March 2020 for a 15-day period, which was extended for an indefinite period on 31 March. Decree No. 179/2020 issued on 4 May 2020 states that until the termination of the state of emergency, requests for information cannot be submitted in-person or orally and the period for responding to requests is extended to 45 days (instead of 15 days).

 

 ROMANIA

Source: Decree No. 195 of 16 March 2020

Presidential decree No. 195 of 16 March 2020 enacted a state of emergency which expired on 15 May2020.  

The Decree included a provision doubling the amount of time that state institutions have to answer FOI requests.

 

 NETHERLANDS

Source: https://data.overheid.nl/

On 23 March the central government ordered all regions of the Netherlands to adopt emergency decrees, under the law on public health. The Amsterdam-Amstelladn Region published on 2 April 2020 an ordinance which prohibited organizing or participating in meetings, until 1 June 2020. The measures taken had a treasurable impact on the access to information.

 

 SLOVENIA

Source: http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO8183

On 20 March 2020 the country adopted an Act that, among other measures, suspended most deadlines in administrative proceedings including requests for access to information. The Act expired on 1 June 2020.

 

 FINLAND

Source: Government Decision VNK / 2020/31

A Government decision declaring exceptional circumstances entered into force on 16 March 2020.

Here it is reported that the Prime Minister's Office refused a request of the documents of the Corona coordination group headed by Secretary of State on the basis of the Public Access to Information Act.

 

 BULGARIA

Source: balcanicaucaso.org

Bulgaria declared the state of emergency on March 13 2020. The expiry date was on 13 May and it was not extended. Instead, it was agreed to declaring an epidemic situation up to June 14.

The underlying measures appears have not targeted right to information obligations. Nevertheless, the government introduced excessive criminal penalties for “fake news” about the virus, which penalized the media’s ability to inform the public.

 

 

 We know that the access to information is a fundamental right, guaranteed by the Charter of Fundamental Rights of the European Union. We also know that the right to re-use the information coming from public sector bodies has been dealt by the PSI Directive and that in most member states there is a clear separation between the access legal system and the re-use legal system.


However now, with the incoming new PSI Directive renamed as “Open Data and Public Sector Information Directive” does it make sense to keep a clear distinction between the two rights?


The universally accepted definition of Open Data provided by the Open Definition, sounds:

Open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness).”

As you may notice, in the definition the concepts of access and re-use are merged. Instead, in the legal framework of several member states and also in the current PSI Directive there is a relationship of propaedeuticity between the two rights. In other words you cannot re-use information if you do not have access to it.

However, why not consider the right of re-use as embedded into the right of access? Accepting this, there would be a number of benefits, one of them is the fact that the right of re-use would acquire the status of fundamental right.

 

The right of access in the constitutions of the member states

A constitution contains the basic principles and rules of a country. It specifies how a country should be governed and what rights citizens have. 

Having the access right in the constitution is important for the its recognition as a fundamental human right. In this regard, it is interesting to find out in which member states it is included in the constitution.

The table below summarizes the results of an analysis on the constitutional provisions laid down by the member states. The large majority of the countries has the access right included into the constitution.

 

Right of access in the Constitution

Country

Is right of access to information in the Constitution?

Date of first introduction

Note

 

Austria
No
-
Current Austria's Constitution requires public bodies to observe official secrecy.

 

Belgium
Yes
2012
Article 32 of the Constitution of Belgium

 

Bulgaria
Yes
1991
Article 41 of the Constitution of Bulgaria

 

Croatia
Yes
2010
Article 38 of the Constitution of Croatia

 

Cyprus
Yes
1960
1985

 

Czech Republick
Yes
1991
Article 17 of the Charter of Fundamental Rights and Freedoms (separate document from the constitution but with the same legal standing)

 

Denmark
No
-
 

 

Estonia
Yes
1992

 

Finland
Yes
1999
Section 12 of the Constitution of Finland

 

France
Yes
1958
Articles 7 and 34 of the French Constitution

 

Germany
Yes
2012

 

Greece
Yes
2001
Article 5A interpretative clause of the Greek Constitution

 

Hungary
Yes
2011
Article VI (2) of the Fundamental Law of Hungary

 

Ireland
No
-
 

 

Italy
Yes
1947
Indirectly through arts. 21 and 97 of the Italian Constitution

 

Latvia
Yes
1998
Articles 100 of Latvian Constitution

 

Lithuania
Yes
1992

 

Luxembourg
No
-
Country without RTI
law

 

Malta
Yes
1998
Article 41 of Constitution of Malta

Netherlands
Yes
2002
Article 110 of the Dutch Constitution

 

Poland
Yes
1997

 

Portugal
Yes
1989

 

Romania
Yes
1991
Article 31 of the Constitution of Romania

 

Slovakia
Yes
1992
Article 26 (5) and 45 of the Constitution of Slovakia

 

Slovenia
Yes
2006
Article 39 (2) of the Constitution of Slovenia

 

Spain
Yes
1978
Articles 20 and 105 of the col-md-ish Constitution

 

Sweden
Yes
1949
1974

 

United Kingdom
No
-
The country does not have a codified constitution

 

 Conclusion

A merging of the rights of access and re-use of information following the “Open Data” definition could guarantee the acceptance of the re-use right as a fundamental right. By the way, this is what the new name of the PSI Directive seems to suggest.

In the preparatory note of the proposal of the new PSI Directive it is reported that the recast clarifies the relation between Directive 96/9/EC on legal protection of databases and the PSI Directive itself.

Let’see what is the contested subject-matter.

 

In the context of the legal protection of databases, Directive 96/9/EC introduced a particular protection, the sui generis right.
The sui generis right is attributed to the creator of a database, identified as the person who has made significant investments of money, time and work, regardless of the existence of any requirement of creativity or originality of the work. In this way, the database is protected purely in view of the effort and economic risk involved in collecting the information in it.

This right was originally aimed to protect the investment and to discourage any possible extraction and reuse of the contents of the database. This is obviously not in line with the principles of the PSI Directive.

The two directives seem to go in opposite ways: the PSI Directive promotes the idea to make as much public information available for re-use as possible, whilst the Database Directive is trying to limit and control the re-use of information.

In other words, we are looking at some sort of antinomy, where we have two ideas that are in themselves reasonable but contradictory.

 

Why a clarification is important

At first glance it may seem a sophisticated subject and of little use to most people, but it is not so, for several reasons.

Firstly, public sector bodies are tempted to leverage this right in order to deny the re-use of data. Here an example.

Secondly, emerging technologies such as IoT, AI and Big Data are creating a number of new scenarios potentially covered by sui generis protection. Let’s think to situations in which sensors and other devices gather data on a distributed infrastructure (i.e. mobility tracking): they may involve significant investments and therefore the sui generis right could be applied. Other big data use-case may require complete data sets from a multitude of databases, this may infringe the sui generis right.

Thirdly, the forensic practice does not suggest legal certainty as regards the interplay between the two directives.

 

The recast of the PSI Directive: a contribute to the clarification

Original 2003/98/EC PSI Directive contained a reference to the database protection in recital 24.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ( 1 ) and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases ( 2 ). It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents.

It simply stated that the PSI Directive cannot be used against the Database Directive, but it did not help to solve the question since the contrary remained unclear: does the sui generis right affect the obligations in the PSI Directive?

The new PSI Directive proposal, which once adopted will be named “Open Data and Public Sector Information Directive”, seems to have put an end to the dispute.

New point 5 of article 1 removes any doubt about the possibility for the Public sector bodies to invoke the sui generis right:

5. The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents pursuant to this Directive.

The statement is confirmed by recital 53, which substitutes recital 24 of Directive 2003/98/EC:

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular, where public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it in order to prevent or restrict the re-use of data contained in databases.

However, looking at the compromise text agreed with the European Council on 7 November 2018, the concept seems a bit softened.


Point 5 of article 1 is slightly changed:

The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents or to restrict re-use beyond the limits set by pursuant to this Directive.  

Whereas in the wording of recital 53 the explicit reference to the Database directive is deleted.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular,wWhere public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it that right in order to prevent re-use or to restrict the re-use of data contained in databases existing documents beyond the limits set regulated by this Directive.

 

The ongoing evaluation of the Database Directive: a possible alignment

Last year the European Commission published a study in support of the evaluation of the Database Directive. Curiously, it was released on 25 April, the same date of the first publication recast of the PSI Directive and maybe it’s not a coincidence.

In short, the study reported that:

There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost. It makes the EU less competitive than other economies where data research and public is more open.

Then the authors of the study suggest that the removal of the protection of the sui generis right for public bodies including research institutions would be a possibility, but it should be ensured that those which are self-funded and act somewhat as commercial entities are not excluded from the benefit of the sui generis right, as their existence, and with that valuable databases, may be threatened.


Conclusion

The interpretation issues concerning the sui generis right in the context of PSI Directive, will most likely be a thing of the past. The new “Open Data and Public Sector Information Directive” clearly states that the public sector bodies cannot use the sui generis right to prevent or restrict the re-use of documents although the concept was a bit softened in the compromise text agreed with the European Council on 7 November 2018.

As far as the Database Directive is concerned, a recent study in support of the evaluation of the directive suggests deleting the sui generis right with the exclusion of those public sector bodies that rely on this right for their economic survival.

 

Our investigation to figure out how to make PSI requests this time focuses on Denmark. 
This country can be considered as an early adopter of the open data philosophy. Nonetheless, making an access or re-use request does not seem a common practice.

Legal framework

Denmark has a long tradition in terms of access to public sector information. Already in 1866 the country provided a limited right of access to information for parties involved in administrative cases. However, there is no trace of the right of information in the Danish constitution, thus it is regulated by statutory law and by the European Convention of Human Rights. Since the beginning instead there was a clear separation between the re-use framework and the access framework.

As for the access framework, since 1970 the country has a Public Record Act which provided everyone with access to governmental information. The Public Records Act was then improved with Act no. 572 of 19 December 1985.


We have to wait until 2013 to see a new Freedom of Information Act. Act no. 606 of 12 June 2013 was preceded by a long debate, most of the protests regarded the limitation of public access to internal documents regarding political decisions and issues.

As regards the re-use of information framework, Directive 2003/98 on the re-use of PSI was partially implemented by Act on the re-use of public sector information no. 596 of 24 June 2005. The Law was amended by Act no. 551 of 17 June 2008 and the amendment widened the law and included Parliamentary and Court.

The Law currently in force is the Act amending the Act on the re-use of public sector information of 2 June 2014 implementing parts of Directive 2013/37/EU.

Apart from the legal landscape, some initiatives deserve a mention. The first one is the Basic Data Program. Basic Data are a resource that has been produced and gathered throughout the years by the Danish public bodies. They are divided into five categories: Geographic data, Address data, Real Property data, Business Data and Personal Data (CPR).  Basic Data are free to use, for everyone – private companies, public institutions and citizens and easily available via the shared distribution platform, the Data Distributor (https://datafordeler.dk), from where it can safely and easily be used – with respect for personal and sensitive information.

The opendata.dk portal is a collaboration between five municipalities in Denmark (Aarhus, Copenhagen, Vejle, Odense and Central Region Denmark) that was established in 2014. The project aims to function as a national platform for Open Data as well as encourage other municipalities to start working and publishing data on the portal.

The Danish National Archives stores and collects original documents of historical value and makes them available to the public. It is interesting to note that in this case access to data is regulated by the Archives Act.

The Library Open Access Repository (LOAR) is an open data repository established in 2016 as a service for storing and providing access to Danish research data.


In practice

Surprisingly it is very hard to find references on how to address a re-use or access request to a Danish public sector body; neither specific email addresses or forms to fill on their websites.  Also existing Open Data platforms like opendata.dk do not offer support in this regard.

That means one of two things: either all data regarding public sector information are almost freely accessible or making re-use or access requests is not a common practice in Denmark.

The second option seems more likely considering that the legislation does not describe how a request should be formulated, i.e. what information should it contain.  The only recommendation addressed to the re-user is that

Article 4 of Act on the re-use of public sector information no. 596 of 24 June 2005.:
" Requests for re-use shall be submitted to the public sector body that holds the document or data collection or to the bodies which under other legislation administer data collection. “

Ultimately, if you want to obtain data not yet released by a Danish Public Sector, make a request using our PSI Monitor!

Our investigation to figure out how to make PSI requests this time focuses on Poland. The legal framework supporting re-use requests seems accurate although a bit bureaucratic.

Legal framework

The first stone on Polish legislation concerning access to public information is dated 2 April 1997, when the Constitution of the Republic of Poland established the right to public information in Article 61 (1):

A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

Shortly afterwards, on 2001, the Polish parliament approved the Freedom of Information Act (“FOIA”). It stated two important concept: the first one is that any information on public matters constitutes public information and the  second one is that everyone has the right of access to public information without the need to prove any legal or non-legal interest. However, the FOIA also came up with the principle that public information could be limited due to the need to protect classified information.

The Polish classification regime was first regulated with the the Protection of Classified Information Act dated 1999 but it lacked of clarity and functionality and was heavily reformed with the Protection of Classified Information Act of 5 August 2010.

The right to re-use was introduced for the first time with the 2011’s amendment of the Freedom of Information Act; it contained on chapter 2 a re-elaboration of the contents of Directive 2003/98/EC. In addition, it also provided for the creation of a Central Public Repository where placing public information. The details of the repository were defined with the Regulation of the Council of Ministers regarding the Central Public Information Repository of 2014, which was followed by the publication of the portal dane.gov.pl.

Afterwards, Directive 2013/37/EU was transposed through the adoption of the Act of 25 February 2016 on the re-use of public sector information.

In practice

The possibility to make a request for access to information was already foreseen in the first version of the Freedom of Information Act of 2001, but there were no operative guidance on it. With the amendment of 2011, more details have been added indicating, for instance, that the public sector body involved should answer to a request within 20 days. However it is within the Act of 25 February 2016 on the re-use of public sector information that you can find how to formulate a request.


As can be seen, article 21 also includes cases in which the information has already been made available but the conditions for re-use have not been determinated or provided under other access to information laws or the purpose of the re-use is not covered by the terms.
ARTICLE 21 of Act of 25 February 2016 on the re-use of public sector information  

A request for re-use, hereinafter referred to as a ‘request’, shall be submitted if public sector information:
1) has not been made available in the Public Information Bulleting or the central repository;
2) has been made available otherwise than as specified in paragraph 1 and conditions for re-use or charges for re-use have not been determined, or information about the lack of such conditions or charges has not been provided;
3) will be used on the terms other than those specified for this information;
4) has been made available or provided under other acts laying down the rules and procedure for accessing information constituting public sector information.

A request may concern the re-use, in a continuous and direct manner in real time for a period not exceeding 12 months, of public sector information gathered and stored in the IT system of an obliged entity. A request shall include in particular:
1) the name of the public sector body;
2) information about the applicant, including the full name or business name and address to make it possible to send a reply to the applicant or the applicant’s attorney in the manner or form specified in the request;
3) information about the public sector information that will be re-used and, if this public sector information has already been made available or provided, the conditions for re-use as well as the source of making available or providing;
4) information about the purpose of re-use (commercial or non-commercial), including the area of activity in which public sector information will be re-used, in particular goods, products or services;
5) information about the form of preparation of public sector information and, for electronic form, also about the data format;
6) information about the method of providing public sector information, unless it has been made available or provided in a different manner, or about the method of accessing information gathered in an IT system, as referred to in paragraph 2.


The public sector body has 14 days to answer the question; in particular cases the deadline may be extended to a maximum of two months. Articles 23 and 24 specify the available answer options.
ARTICLE 23 1. of Act of 25 February 2016 on the re-use of public sector information
After considering a request, except for a request as referred to in Article 21(2), an obliged entity shall:
1) provide public sector information for re-use without establishing conditions for re-use;
2) provide information about the lack of conditions for re-use if public sector information is held by the applicant;
3) submit an offer containing conditions for re-use or information about the amount of charges for re-use; 4) refuse, by means of a decision, to authorise the re-use of public sector information
ARTICLE 24 1. of Act of 25 February 2016 on the re-use of public sector information
After considering a request as referred to in Article 21(2), an obliged entity shall:
1) submit an offer containing conditions for re-use or information about the amount of charges for re-use, against which an objection cannot be filed;
2) inform the applicant that re-use in the manner specified in the request is impossible;
3) refuse, by means of a decision, to authorise the re-use of public sector information. Article 23(4) and (6) shall apply.


Then the applicant must then complete some formal steps; he has 14 days to accept the answer by the public sector body or to file a complaint.

From a practical point of view, looking at the website of the public sector body owner of the data you want to re-use is the first step. Often you will find a request form to compile; some examples below:

The Supreme Audit Office

Public Information Bulletin

Kielce city

Krakow city

In other cases, you need to have an account on ePUAP service, the Polish nationwide platform for communication of citizens and businesses with public sector bodies.

Anyway, If the bureaucratic details of the law seem complicated and you fear to be mistaken, don’t warry there is a good alternative.

 


The website informacjapubliczna.org has published a complete guide on how to make a request. Together with useful hints, you can find a template for the request, 7 different complaint templates and if all of this would not sufficient you can contact them to have free support.

 

Don’t forget to add your request also into the PSI Monitor repository, this action would ensure a wider exposure of your request at European level and that might contribute to a successful conclusion of the application.

 

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