Legal aspects of public sector information

The following post is an excerpt from my thesis entitled Linked open data for public sector information.
Public sector information is a subject to jurisprudence based on different sources of law and regulations endowed with legal power. The law relevant for the disclosure of public sector information comes from multiple regulators and as such is a combination of both international law, including conventions or EU directives, and national law [1]. As a result of this state of affairs, the conditions governing public sector information may be composed of rules coming from multiple layers. In effect, the legislation related to public sector information may pose equivocal requirements and ordinances that are difficult to adhere to.
The right to access to public sector information stems from a basic human freedom to seek and impart information. Right to information is enshrined in at least 50 national constitutions [2, p. 62]. Dedicated acts formalizing the right to access to public sector information are established in a large part of countries that acknowledge the freedom of information.
First legal act on the access to public sector information entitled “Freedom of the Press Act” was passed in 1766 in Sweden [2, p. 57]. The right to know what proceedings of the public sector are was recognized as early as 1969 by the Japanese Supreme Court [3]. Other countries followed the suit by establishing the right to know and access to information as a part of the citizen rights. During the following decades the adoption was rather slow and in the middle of 1980s only 11 countries had freedom of information law [4, p. 264]. However, this area experienced a sudden growth of interest paired with an increasing number of countries recognizing the importance of access to information. By 2004 the number of countries that enacted a freedom of information law increased to 59 [Ibid., p. 264].
The prevailing presumption in favour of secrecy has shifted to presumption favouring maximum disclosure and public sector information that is open by default [5, p. 23]. In many countries, the default settings for access to public sector information have changed. Accessing public sector information is no longer perceived as a privilege, it is a right [6, p. 8].
My thesis focuses on the legal situation for public sector information in the European Union and its member countries. The EU legislation is most relevant for the European context, in which the thesis is situated, and which can prove to be a valid model for an official public policy that establishes rules for the domain of public sector information. Thus, the EU legislation would be treated in more detail.

Legislation in the European Union

In the EU, public sector information legislation consists of the directives of the European Commission and their local transpositions that weave the directives’ regulations into state law of the member countries. A key directive covering public sector information is the EU directive on the re-use of public sector information [7]. The directive “establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies” [Ibid., p. 93]. It prescribes public bodies to provide a mechanism for members of the public to request access to information produced by the bodies. The overarching tenet of the directive is non-discrimination, which manifests itself in stipulations including the prohibition of exclusive arrangements that grant exclusive rights to access to a particular entity, or the recommendation for marginal cost charging.
The planned novelization of the directive [8] extends the scope of public sector information to include the information from the cultural heritage sector, such as libraries, archives, and museums. Furthermore, it strives to conflate the right to access with the right to reuse. It brings about a change in the charging models that declares the marginal cost of reproduction as a new default, while requiring public bodies that continue charge extra price to provide a solid explanation for their behaviour. The novelization also deals with the enforcement of the directive and proposes to set up an independent authority to oversee the compliance with the principles of disclosure.

References

1. KOUMENIDES, Christos L.; SALVADORES, Manuel; ALANI, Harith; SHADBOLT, Nigel R. Global integration of public sector information. In Proceedings of the WebSci10: Extending the Frontiers of Society On-line, April 26 — 27^th, 2010, Raleigh (NC), US. Raleigh, 2010.
2. Beyond access: open government data & the right to (re)use public information [online]. Access Info Europe, Open Knowledge Foundation, January 7^th, 2011 [cit. 2012-04-15]. Available from WWW: http://www.access-info.org/documents/Access_Docs/Advancing/Beyond_Access_7_January_2011_web.pdf
3. MENDEL, Toby. Freedom of information: an internationally protected human right. Comparative Media Law Journal. 2003, no. 1. Also available from WWW: http://www.juridicas.unam.mx/publica/rev/comlawj/cont/1/cts/cts3.htm
4. BERTOT, John C.; JAEGER, Paul T.; GRIMES, Justin M. Using ICTs to create a culture of transparency: e-government and social media as openness and anti-corruption tools for societies. Government Information Quarterly. July 2010, vol. 27, iss. 3, p. 264 — 271. DOI 10.1016/j.giq.2010.03.001.
5. LATHROP, Daniel; RUMA, Laurel (eds.). Open government: collaboration, transparency, and participation in practice. Sebastopol: O’Reilly, 2010. ISBN 978-0-596-80435-0.
6. KUNDRA, Vivek. Digital fuel of the 21^st century: innovation through open data and the network effect [online]. President and Fellows of Harvard College, 2012 [cit. 2012-03-15]. Discussion Paper Series, no. D-70. Available from WWW: http://shorensteincenter.org/wp-content/uploads/2012/03/d70_kundra.pdf
7. EU. Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. Official Journal of the European Union. 2003, vol. 46, L 345, p. 90 — 96. Also available from WWW: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:345:0090:0096:EN:PDF. ISSN 1725-2555.
8. EU. Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/98/EC on re-use of public sector information [online]. Brussels, December 12^th, 2011 [cit. 2012-04-30]. COM (2011) 877. 2011/0430/COD. Available from WWW: http://ec.europa.eu/information_society/policy/psi/docs/pdfs/directive_proposal/2012/proposal_directive.pdf