Administrative Law Obstacles For Accessing and Re-Using PSI Julián Valero-Torrijos

1. Administrative Law Obstacles For Accessing and Re-Using PSI Julián Valero-Torrijos University of Murcia (Spain) julivale@um.es LAPSI Legal Workshop OGDCamp 2011 Warsaw, 21.10.2011

2. Agenda • What is Administrative Law? • Why it may be an obstacle? • Some examples • How can we solve these barriers? Administrative Law Obstacles for Accessing and Re-using PSI

3. Administrative Law??? • Specific regulation for PA in many MS • Main characteristics • significant and unilateral powers to PA (i.e. decisions on access and re-use) • relevant formal guarantees for citizens • What kind of barriers may appear in this field? • formal procedure required for decisions • silence is too usual in some MS (+ answer) • judicial control is too expensive and slow Administrative Law Obstacles for Accessing and Re-using PSI

4. Let’s see some examples! Administrative Law Obstacles for Accessing and Re-using PSI

5. Article 1 Directive 2003/98 Subject matter and scope 1. This Directive establishes a minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodiesof the Member States Administrative Law Obstacles for Accessing and Re-using PSI

6. Definitions For the purpose of this Directive the following definitions shall apply: 1. ‘public sector body’ means the State, regional or local authorities, bodies governed by public law and associations formed by one or several such authorities or one or several such bodies governed by public law; Administrative Law Obstacles for Accessing and Re-using PSI

7. Definitions 2. ‘body governed by public law’ means any body: (a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and (b) having legal personality; and (c) financed, for the most part by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; Administrative Law Obstacles for Accessing and Re-using PSI

8. Public undertakings Whereas (…) 10) The definitions of ‘public sector body’ and ‘body governed by public law’ are taken from the public procurement Directives (92/50/EEC, 93/36/EEC and 93/37/EEC (3) and 98/4/EC (4)). Public undertakings are not covered by these definitions. Administrative Law Obstacles for Accessing and Re-using PSI

9. Are they included? • Public-owned (controlled) companies • when they are not public bodies • but they may have some public advantages • and relevant information • A public body disappears/turns into • a public-owned company • a private company • criteria: when was the information generated Administrative Law Obstacles for Accessing and Re-using PSI

10. Are they included? • Some “atypical” public bodies • public universities • professional associations (bar, medical…) • Foundations controlled by public bodies • Contractors recruited by public bodies • who owns the information? • inclusion clauses compulsory • And citizens/companies who obtained public subsidies for their activities and generated valuable information???? Administrative Law Obstacles for Accessing and Re-using PSI

11. Public task 2. This Directive shall not apply to: (a) documents the supply of which is an activity falling outside the scope of the public taskof the public sector bodies concernedas defined by law or by other binding rules in the Member State, or in the absence of such rules as defined in line with common administrative practicein the Member State in question Administrative Law Obstacles for Accessing and Re-using PSI

12. To access or no to access... Article 1 3. This Directive builds on and is without prejudice to the existing access regimes in the Member States. Recital 9 This Directive does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned […] The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to ocuments. Administrative Law Obstacles for Accessing and Re-using PSI

13. Paper, digital, xml, pdf, xls...? Article 5.1 Public sector bodies shall make their documents available in any pre-existing formator language, through electronic means where possible and appropriate. This shall not imply an obligation for public sector bodies to create or adapt documentsin order to comply with the request, nor shall it imply an obligation to provide extracts from documents where this would involve disproportionate effort, going beyond a simple operation Administrative Law Obstacles for Accessing and Re-using PSI

14. Relevant limitations • Only a general principle • The Directive only establishes a minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodies (art. 1) • Relevant exceptions • data protection, IP… • those issues excluded by Member States • public interest and public security Administrative Law Obstacles for Accessing and Re-using PSI

15. Any ideas? • Transparency: previous and public statement • if the PSBis under re-use rules • which of its activities are not a public task • regular review (i.e. privatization, dynamic markets…) • the UK Guide by the National Archives • PSI Regulatory Bodies • independent status • general competences on access issues (re-use) • LAPSI Policy Recommendation Administrative Law Obstacles for Accessing and Re-using PSI

16. http://www.lapsi-project.eu/ 2nd Public Conference 2nd Award 23rd and 24th January 2012 Brussels Administrative Law Obstacles for Accessing and Re-using PSI