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GREEN PAPER ON PUBLIC SECTOR INFORMATION
IN THE INFORMATION SOCIETY
Annexe 1: Current situation in Member States regarding legislation and policy on access to public sector information.
There is constitutional law (1987/285) of 15.5.1987, which stipulates a general right of access. This constitutes a minimum framework: All officials at the federal, regional or local level entrusted with administrative duties as well as the officials of other public law corporate bodies should impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy. Citizens' access is usually free but in some cases a charge is made covering, inter alia, the reproduction and dissemination costs. Each department defines its commercialisation policy under the control of the Minister responsible, on a case-by-case basis. There are some cases of public and private sector co-operation, in the telecoms, debt recovery, judicial and government information sectors, for example. Belgium
There are laws, at the federal (11.4.1994) and regional level (Flanders 23.10.1991 and 13.6.1996), on civil transparency, providing a general right of access to documents held by a public authority. These laws, however, provide that administrative documents thereby obtained may not be further distributed or used for commercial ends. There is no general law on commercialisation of public sector information. In the context of the civil transparency law, access is given free of charge or at marginal cost. Commercialisation policies are pursued by some government departments on the basis of case-by-case contract relationships. Public and private co-operations have been established, for example in the vehicle registration, statistics and geographic information sector. In the latter sector, however, there have also been cases of litigation involving the relevant state body.
As regards active dissemination, Postbus 3000 distributes information of the Federal government by means of television and radio and by means of advertising in newspapers and magazines. These forms of communication contain pointers to brochures freely available to the public. The brochures hold contact information and additional information on the subjects and the services involved. Furthermore, citizens can obtain additional information via Postbus 3000. Postbus 3000 is a service provided by the Federal Information Service.
As of 24 March 1995, the Federal government maintains an extensive Internet website in four languages (Dutch, French, English and German) at http://belgium.fgov.be. This 'umbrella website' contains pointers to all Federal departments. A wide variety of information is available, such as: general information on Belgium, decisions of the Council of Ministers, useful addresses of governmental organisations and initiatives regarding public sector information. The Communities and Regions also maintain their own websites. These are accessible through the Federal website by means of hyperlinks.
At present the establishment of a call center is being prepared (at Federal level), enabling citizens to submit questions to the government. The Flemish Community is undertaking comparable actions; In the Walloon Region such centre is already in its operational phase.
Under a recommendation of the Council of Europe, As of 1997 the Council of State is under the legal obligation to publish most of its decisions, which are made available by means of CD-ROM and Internet." Denmark
A law is underway to replace two existing freedom of information laws which give a general right of access to government documents. The Bill covers all the society and is close to the EC 95/46 Directive statements. Pilots are planned concerning open public mailing lists ; a standard about electronic publishing is published, and all public publications will gradually be electronically accessible. All public institutions have e-mail and are represented through the Internet. Still more public electronic based self-service possibilities are present. Access to electronic legal data and information is freely available.
As regards citizens access to print documents, the principle is that citizens should only pay for the cost of access which is stipulated to be 10 DKR for the first page and 1 DKR for each additional page. There is no specific law on commercialisation of public sector information although the Info-Society 2000 Programme makes some reference. There has also been a 1992 Ministry of Finance Budget Guide covering the public sector in general and setting "long term average costs" and "fair competition" principles. Since the Danish market for electronic information services is still relatively small, most of the public sector information dissemination, both in print and electronic form, is carried out by the public sector. Some commercial interest has been expressed in the fields of population, company and land registers, law and statistics in which there have been cases of public and private sector co-operation and competition.
A new pricing model concerning sale of public data is now worked into the Budget Guide covering the public sector and decision has been taken on principles about quality of and access to public data and the ongoing development activity. The tendency is that new steps to create the open information society are quickly done. Finland
There is a Publicity of Official Documents Act (83/9.2.1951), providing a general access right to any document prepared and issued by a public authority, as well as any document sent or given to a public authority and in its possession. In 1987 this right was extended to documents produced "by the use of punch marks, magnetisation or other comparable means and intended to be read, listened to or otherwise understood by means of technical devices". The law is currently being revised and modernised. The new law will promote the use of authorities' information matter outside the administration.
The Finnish market and commercialisation situation is otherwise similar to that in Denmark. Private sector interest is still rather small and the main dissemination initiatives are still within the public sector.
A 1995 report "Developing a Finnish Information Society" makes a brief reference to encouraging commercial reuse by the private sector. Pricing policies were established by the 1992 Act on Charging Criteria for the State which distinguishes three types of government goods and services: a) those in the public interest, provided free of charge b) those offered by monopoly bodies, or following a legal requirement, provided at cost price and c) others, provided at commercial price. France
There is a general law on access to administrative documents (part of a wider law concerning relations between the administrations and the public, 78-753/17.7.1978, amended in 1979), which excludes the possibility of reproducing, disseminating or commercially exploiting the documents concerned. Access "in situ" is free of charge, while copying costs are charged to the requester. There is also a Prime Minister's circular of 14.2.1994 concerning the dissemination of public data which establishes some policy principles for the commercialisation of such data, distinguishing between raw data (being freely accessible) and value-added data (in certain cases protected by copyright) and discussing the information dissemination roles of the public and the private sectors including competition and pricing issues.
There is a large private sector participation in the public sector information market. This has been more successful in some areas (geographic, company information) than in others (agricultural, judicial information). There is a policy of providing public concessions to private sector companies which, some commentators feel raises competition issues.
In the Government action programme "Preparing France's entry into the information society" published on 16 January 1998, the French Government announced that "essential public data" will be freely available on the Internet. This initiative recognises that the development of the networks has profoundly changed the traditional distinction between access to public information and its dissemination. Furthermore it stresses the fact that the ability to access public sector information sources is vital to the development of the information market and thus the information industry. Germany
Germany has neither a general access law nor a law on commercialisation of public sector information. A large number of sectoral laws offer access to specific types of information (e.g. administrative complaints, environmental information). Some Länder have constitutional provisions and are in the process of preparing general access laws. Commercialisation practices have been developed by different authorities separately. In some cases (e.g. financial-commercial statistics) there are examples of successful public/private sector co-operation while in others (e.g. company information) there have been difficulties. Pricing policies also differ widely, depending on the legal basis of the request, the public sector agency in question and the intended use of the information. This variety of policies is accentuated by the federal structure of the state. Greece
Greece has a law providing general access (1599/1986), which does not allow for the commercial exploitation of the public sector documents concerned. Although there is no general law or policy concerning commercial dissemination of public sector information, the Ministry of the Interior and Public Administration is working on its legal framework. The electronic information market is very small and the market potential of public sector information has not yet been established (apart from a few exceptions in the cultural, tourism, agriculture and legal fields). Several government bodies are already in a process of developing information systems to make their content accessible both to business and citizens. Ireland
The Freedom of Information Act, 1997, was the first significant piece of legislation that obliged government Departments and Offices to publish details of their information holdings. This Act asserts the right of members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy.
Under the Act, public bodies are required to publish certain information about themselves and also to make available details of their internal rules, procedures, interpretations, etc. used in decision making. Many Departments and Offices publish this information on the Internet. The central purpose of this information is to assist the public in ascertaining the information held by each organisation and how to access it.
In respect of non-personal information, fees may be charged in respect of the time spent in efficiently locating and retrieving records, based on a standard hourly rates. Photocopying charges may also apply. In respect of personal records, copying charges only will apply, save where a large number of records are involved. No charges may apply in respect of the time spent by public bodies in considering requests.
In addition, most government Departments and Offices produce publications relating to their interests. These are generally issued free where it is desirable for purposes of public policy, or are priced on a cost recovery basis.
While there is no general law or policy on the commercialisation of public sector information some organisations (e.g. Land Registry, Ordnance Survey, etc.) market information. Where this happens pricing policy is, in general, market-led with the commercial rate being charged. Commercialisation and public/private sector co-operation occur mainly in the field of law and statistics.
The 1996 report "Information Society Ireland - Strategy for Action" envisages free or low cost access to public databases and information services, coupled with the use of information and communications technologies in the public sector to deliver citizen-centred applications to the public. All newly published government information is to be made available electronically and on paper at the same time from a specified data ; low cost ("lo-call") telephony access to government Departments and Offices has already been introduced and will be enhanced with self-service over the Internet, fax on demand, etc.; government web sites will be developed with a view to increasing interactivity and potential for service-delivery. Italy
There is a general access law (241/7.8.1990), although in many cases access depends on the existence of a legal interest. There is no general law or policy concerning commercialisation of public sector information. Access based on the aforementioned law is free of charge. Pricing policies for commercial purposes differ in the various public sector bodies. Examples of public/private co-operation exist in areas like company information and statistics. In some cases there have been complaints relating to competition rules. Luxembourg
There is neither a general access law nor any general rulings regarding commercial exploitation of public sector information, although a working group has been set up to examine this issue. In practice, when available, public sector information is either given free of charge or at distribution cost price. There are, as yet, no examples of public/private sector co-operation. The tiny size of the market probably discourages strictly national initiatives. Netherlands
There is a Government Information Act (entered into force in 1980, amended in 1992) which compels administrative authorities to disseminate government information actively, and to provide information upon request. There are, however, exemptions from and restrictions to these obligations. These exemptions and restrictions are comparable to those under other general access laws (e.g. exemptions in the interests of the state, third parties and the protection of the decision making process).
The Ministry of the Interior has a co-ordinating role regarding public sector information policy. As yet, there is no general policy on the exploitation or commercial reuse of public sector information. Consequently, administrative authorities set out their own policies. However, steps have been taken towards the development of a general policy.
As a first step the Cabinet issued a memorandum "Towards the accessibility of government information, Policy framework for increasing the accessibility of government information through information and communication technology" in June 1997. The key topic in the memorandum is which public sector information should be made available electronically, who for, why, how and at what price. In the Cabinet's view, so-called basic information of the democratic constitutional state (legislation and regulation, statements by the judiciary courts and parliamentary information) should be made accessible as much as possible since this category of information is generally speaking, public. ICT may be an important instrument in this. Regarding electronic data files of administrative authorities, the Cabinet has noted in the memorandum that a policy needs to be developed governing access to file data, in particular the access by the private sector.
As a follow-up to the memorandum, electronic data files of administrative authorities are currently being examined on type, use, origin of the data and legal status. The aim is to categorise electronic data files in order to develop policy measures for the access to specific types of data files. Such measures are considered necessary since it is unlikely that exploitation or commercial reuse of electronic public sector data files, given their diversity, can be covered by a general rule. Portugal
There is a general access to public sector information law (65/26.8.1993), but no general rules or policies concerning commercialisation. In general, information is charged at the lowest possible price, in view of the public service mission of the public authorities. There is a public citizens access project providing kiosk-type access to specific areas of public sector information, the technical execution of which is to some extent entrusted to the private sector. Some further examples of public/private sector co-operation exist in the company and legal information areas, although the small size of the market and the relative lack of electronic government databases does not encourage such commercial initiatives. Spain
Spain has a general access law (30/26.11.1992) which does not currently apply to computerised information. A legal interest in the requested information is required. A royal decree has recently been adopted regulating the use of electronic information techniques by the central general administrations. Reference is included to the relationship between administration and citizen. Recent studies have shown that information on 34% of public services is accessible to the public, access being provided in certain cases in collaboration with the private sector. There is no general commercialisation policy. Tariffs vary from zero(40% of the cases) to market prices. There are many examples of public/private sector co-operation especially at regional and local level in areas like external trade, finance, culture, education and science while in areas like company information and statistics, co-operation has been either non-existent or unsuccessful. Sweden
Sweden has the oldest access law in the world (the 1766 Freedom of the Press Act, last amended in 1994) giving access to documents kept by a public authority, including electronic documents. All documents drawn up or received by an authority are included. Access to documents is free of charge, although a charge is made for documents over 9 pages. There is no obligation to make available records for electronic data processing in any form other print-outs.
Access can be denied only with reference to a specific clause in legislation demanding secrecy (the Secrecy Act).
In principle, this legislation also covers information held in databases and registers of public authorities. Access to information in data systems and registers are in practice limited to such data that can be extracted and delivered with routine procedures. There are special provisions in the Data Protection Act for a citizen to get information on what data are recorded concerning him/herself in public registers.
A new Personal Data Act will come into force in October 1998. The Act is largely based on the EU directive on protection of personal data. The new legislation does not impinge upon the constitutional right of public access to official documents.
A limited number of larger national databases and public registers are by law authorised to be used for commercial information services (addresses to persons and companies, real estate and land information, vehicle information, etc.).Within the business sector, such information can then be used for value added services. Pricing of the public information is normally based on a cost recovery principle. No other commercial sales of public register information is allowed.
Government and municipal authorities are organising their information resources so that they can provide more information electronically , and not only with reference to the Freedom of Press Act, which presently only guarantees access to documents in paper form, but as a service to the public and to business.
A Committee has been given the task of reviewing the constitutional rules on the public's right of access to official documents from an IT perspective.
The Government IT Bill, passed by Parliament in Spring 1996, outlines the direction in the Government policy for further opening up public sector to electronic access. The Bill stresses the power of IT to strengthen transparency, democracy and to create economic advantages for society, and sets out general guidelines for public and business sector access to information, as well as for the citizens.
In the Government Public Administration Bill of 1998 information service in the public sector is one of the main issues. As a basic principle pricing of public information should be based on recovery of distribution costs. The Government also sets the direction of the further work in this field, including how to define national basic data and how to make information from public registers more easily accessible in electronic form. The authorities whose work is primarily at dealing with companies and individuals should offer electronic services for self-service as a complement to traditional services.
There is a proposal from the Ministry of Justice for renewal of the Legal Data Information System, Rixlex 2000, which is currently subject for consultation. The system has a decentralised structure. Each of the suppliers of information to the system is responsible for the accuracy of the contents of submitted material.
Within the general framework outlined above, a number of practical and legislative activities are continuing to further adapt and develop information management, openness, synergy and liability in the new electronic environment. United Kingdom
There is no law giving a general right of access to information held by central government. A Code of Practice, published in 1994, gives rights of access to information broadly comparable with statutory regimes in other countries. These include a commitment for government departments to voluntarily disclose certain types of information of public interest. The Code is not legally enforceable but is policed by the Parliamentary Ombudsman, who is independent of government. A separate Code of Practice on Openness in UK health services was issued in 1995.
The present Government took office in May 1997 with the clear commitment to a Freedom of Information Act. A White Paper entitled "Your right to know" was published in December 1997, setting out proposals for Freedom of Information legislation which would go significantly beyond the Code of Practice in it's openness requirements.
A draft Freedom of Information Bill is due to be published by the Government in 1999.
The Government has also established an Internet service for government information (at.www.open.gov.uk). All new statutes and statutory instruments are published on the Internet (at www.hmso.gov.uk). There is a right of access to information held by local government (Local Government Act 1985) and to various types of personal information, such as medical records and information held by social services departments.
The Department of Trade and Industry guidelines on Government-Held Tradable Information were first published in 1986 to provide guidance to government departments on making their information available to the private sector. These were last revised in 1990 and, because of recent changes, the Government considers there may now be scope for further revision. They cover issues like identifying the tradable information, costs and charges, contract matters, Crown copyright obligations, security and privacy, liability, competition, non-exclusivity and non-discrimination towards EC service providers.
The development of government executive agencies run on cost recovery lines has reinforced the tendency for Government to make information available in a number of ways, both commercially and non-commercially. The level of charging depends on the type of material and the degree to which it is being sold for commercial re-use.
There have been calls from the private sector for liberalisation of the copyright licensing regime in order to facilitate the non-exclusive licensed reproduction by the private sector of various types of information and the government has announced various initiatives in copyright policy governing reproduction of statutory material and the use of class licences. In the UK, which has the biggest and longest established electronic information market in the E.U., there have been many examples of public/private sector co-operation such as geographic, legal and company information. A Green Paper entitled "Crown Copyright in the Information Age" dealing with access to public sector information, was published in January 1998.
Annexe 2: European Commission action relating to public sector information - The background to this Green Paper
1. Some Milestones
In September 1996, in its resolution on the Commission's Action Plan for the Information Society, the European Parliament requested that new forms of electronic distribution be exploited for the dissemination of public information to all citizens at European and national level.
In October 1996, in its resolution on new policy priorities in the information society, the Industry Council urged Member States to improve access to public information, through the accelerated use of information society tools and partnerships between the public and private sector.
Access to public sector information has been one of the priority issues addressed by the ministerial declaration issued at the conference on Global Information Networks, which took place in Bonn on 6-8 July 1997.
Non-governmental actors have also been encouraging action in this area. A strong request for an access to public information initiative has recently been made by the Information Society Forum (Vienna Declaration of 13-11-1998).
In addition, mention should be made of initiatives that are being undertaken in other international bodies, for instance, the activities of the Council of Europe. 2. Openness of EU institutions
Since the signing of the Maastricht Treaty, the openness of EU institutions has been substantially improved. Considerable efforts have been made to ensure an easier access to the Institutions documents. In 1994 the Commission issued, for example, a decision on public access to Commission documents (decision of 8 February 1994 as modified on 19 September 1996).
In the Amsterdam Treaty the importance of this issue was underlined by the inclusion of a specific provision regarding transparency of the European institutions. A new article has been inserted into the Treaty, stipulating that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the European institutions (Parliament, the Council and the Commission), subject to principles and conditions to be defined in Council legislation and in the rules of procedure of each institution, with a view to the greatest possible openness. In terms of the transparency principle, the Amsterdam Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
The Treaty also states that the Council, when acting in its legislative capacity, is under an obligation to make votes and explanations of vote public.
A user's guide available in print and on the World Wide Web sets out the practical details of the current Commission's access policy (http://europa.eu/en/comm/accdoc/contents.html). 3. An active information dissemination policy
All EU institutions maintain a family of WWW sites accessible through one single gateway (http://europa.eu) and offering a large amount of information.
Within the framework of PRINCE, the information programme for the European citizen, three "Priority Information Actions" have been launched :
The Office for Official Publications of the European Communities (EUR-OP) is the official publisher of the institutions of the European Union. The three principal functions of EUR-OP are editing, technical and administrative support and distribution. EUR-OP, with a number of representatives of European publishing houses, has created a EU - Publishers Forum. Acting on behalf of all the institutions. EUR-OP is to give access to data currently available on databases and is to encourage publishers to use unpublished EU material. EUR-OP has always recommended to the institutions to follow the 1989 Synergy Guidelines of the Commission. The conditions to which the dissemination is subject to vary with the value-added attached to the information. For instance, EUR-Lex displays free of charge the Official Journal for a period of forty-five days following publication and is updated daily in 11 languages with the latest editions of the Official Journal, which are available on the Internet a few hours after the paper version is published.
CELEX is a subscription-based computerised inter institutional documentation system for Union law containing the whole body of European Union law : a flat fee subscription to CELEX is available offering unlimited consumption for ECU 960/year. 4. Background initiatives to the Green Paper
The potential importance of public sector information as a resource first attracted the Commission's attention in the mid 1980s, when, in the context of the IMPACT programme for creating a Community information market and in response to a need perceived by the information industry, it started a consultation process with public and private sector information providers' and users' representatives. In addition, studies were carried out with respect to these issues. Furthermore, the Commission organised a number of preparatory discussions with the help of the Legal Advisory Board (for more information see the LAB Home Page on the European Commission WWW server I*M EUROPE at the address: http://www2.echo.lu/legal/en/labhome.html).
These initiatives resulted in a set of 19 guidelines for 'Improving the Synergy between the Public and Private Sectors in the Information Market'. However, subsequent studies proved that the impact of these guidelines was rather disappointing. In most Member States the guidelines seem to have had little, if any, impact.
The Commission organised a meeting in Stockholm on June 27 and 28, 1996, at which a large number of participants discussed various issues related to this Green Paper. Participants expressed their consensus on the actions undertaken so far (the proceedings are available on request).
The first legislative initiative in this area was the adoption of Directive 90/313/EEC of 23 June 1990 on the freedom of access to information on the environment, providing all legal and natural persons with a right of access to information concerning the environment held by public authorities. Further actions have been taken by the EU in the environment field. In particular the work done by the European Environment Agency should be recalled in that respect. Furthermore, on 25 June 1998, the Presidency of the Council and the Commission have signed the UN/ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters.
Annexe 3: Current situation in the US: the legal framework
The United States have a long experience of active public sector information policy. In 1966 the Freedom of Information Act (FOIA) was enacted. The FOIA was amended in 1996 by the Electronic Freedom of Information Act (EFOIA) which guarantees public access to federal government information electronically.
Government Information Locator Services (GILS) have been set up with a view to ensuring access to federal information by identifying resources relevant to users, describing the information available and assisting in assuring access (see http://www.gils.net/).
Through a number of acts additional to the FOIA (like the Paperwork Reduction Act and the Government in the Sunshine Act and detailed policy documents such as the Office of Management and Budget circular A130) - the US has strongly encouraged the private sector to exploit public sector information commercially.
The 1986 Uniform Freedom of Information Act Fee Schedule and Guidelines issued by the Office of Management and Budget (OMB) deals amongst others with pricing issues. It contains provisions essentially charging for search, duplication and (possibly) review costs but not for the value added by the public sector to the raw data. The US pricing philosophy is that the public sector should see the adding of value only as a tool for its own efficiency purposes, and not as an incentive for profit making. On the other hand, if the private sector is to make a commercially viable product or service, it should be able to add value beyond that added by the public sector and sell it at a profit making price. There is no copyright on government information at federal level.
In the US, the most important reference to competition related issues is made in the 4.1.1995 Paperwork reduction Act, Section 3506, dealing with federal agency responsibilities. It stipulates that:
"each agency shall ensure that the public has timely and equitable access to the agency's public information…"
but also indicates that it should not, except where specifically authorised by statute:
- "establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public;
- restrict or regulate the use, resale, or redissemination of public information by the public;
- charge fees or royalties for resale or redissemination of public information; or
- establish user fees for public information that exceed the cost of dissemination".