Open Data expert panel discussion, Jelgava, Latvia (February 18th)
A few introductory remarks and open data recommendations.
Rosana Lemut Strle, Info House (Slovenia)
In last decade a lot has been done in the field of personal data protection, no doubt about that. Some credit in that matter must be given to rapidly evolving technology and certain international intelligence affairs like the Wikileaks case and Snowden’s revelations. Due to that most people feel that their privacy and personal data should be better protected. 46 countries has ratified the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data from 1981, better known as the Convention 108. Its rules were transferred into the national laws of the member states. So it is also with the Directive 46/95 of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data within the EU member states. Privacy and personal data of Europeans are protected, at least on the regulatory level.
What kind of rules if any, are on the other hand about the free access, the open data… There is Council of Europe Convention on Access to Official Documents (Convention 205) from 2009. With only 7 ratification it has neither entered into force nor was consequently transposed into national legislation. As for EU, Regulation no 1049/2001 of the European Parliament and of the Council… Well it was put into force in spring of 2001, but it regulates merely public access to European Parliament, Council and Commission documents. There is no EU general politics on access to documents nor on open data – supported by community legislation. Consequently member states are not obliged to allow access to public documents, it is up to national legislation. In a global world different national approaches for free access and open data are not enough to ensure clear rules and with that possibilities to share and use all kinds of data worldwide of at least across Europe.
The Directive 2003/98/EC, known as the PSI Directive entered into force on 31 December 2003 and focuses on the economic aspects of re-use of information rather than on the access of citizens to information. It encourages the Member States to make as much information available for re-use as possible, but it does not apply for documents which are excluded from access by virtue of the access regimes in the Member States. So, re-use is in fact the next step of free access. Without very wide free access to (public) document, which is stated as an obligation not just as a good practice of a state, a re-use can only be of very poor importance (range).
Our Institute, Info House is just currently helping a Slovenian journalist to gain the data on how did Slovenian members of the European Parliament spend their allowances and how did they spend money allocated to them for staffing arrangements – the request was submitted under the Regulation 1049/2001. It is really tough nut to crack – I am not sure, we will succeed at the end. Case is now before the Ombudsman, who holds the data on expenditure of allowances of MPs as personal data, as also the data on allocation of money for staffing arrangements and insist on the demonstration of necessity as stipulated in Regulation (EC) No 45/2001 which regulates the protection of individuals with regard to the processing of personal data by Community institutions and bodies.
We are thus very far from free access and open data (on the EU regulatory level), since there are no general rules on free access and open data, but merely fragments (for example the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, and already mentioned Regulation no 1049/2001 and PSI Directive). I am afraid that merely activism and advocating for open data, will not be sufficient to overcome the present dilemmas regarding open data and privacy or open data and intellectual property. Personal data protection is namely very precisely regulated – especially in comparison to free access and open data. Even the fact that new general regulation is in stagnation does not influence on that. Open data is an idea – a subject of an initiative, personal data protection is a human right and regulated by law.
So my recommendations go towards stronger legislative framework for free access and open data; they might differ depending on whether we are talking of open data in public or private sector. We should first focus on the data in public sector, for those data have already been paid (in one way or another) by taxpayers, so they are entitled to get some benefits in return.
- Advocating for an overall EU Regulation on free access to public documents (with an uniformanda narrowlistof exceptions tofree access, amongst them also privacy and personal data with clear guidance on balancing different rights and interests).
The suggestion is based on my presumption, that in order to follow open data philosophy we need to have a general/overall regulation on free access. In that way we will be able to open every data – at least the data that are held by the public sector. Now, the EU legislation on free access is focused merely on environmental information, on access to the documents held by EU institutions and on the economic aspect of re-use. Contrary to personal data protection and intellectual property there is no EU general legislation on free access. I therefore suggest that free access to documents is regulated uniformly for all member states – in a Directive or even better in a Regulation. It is a bold recommendation, but I believe that only in this way the balancing between different rights is feasible. Otherwise in a collision of an idea of open data and rules on personal data protection, the last will prevail.
- Amending the Regulation 45/2001. The necessity test defined in Regulation 45/2001 is in contradiction with free access to public information. It is namely a demand to prove a legal interest for access to information – probably a proof of the prevailing public interest would be better for balancing right to personal data protection and free access (consequently open data).
- Incentives for publishing data on the Web.
Under the incentives for publishing data on the Web I was thinking on publicly rewarding good practises; for example with some sort of web stamps, that point out best practices on the web sites which follow the open data initiative or other kind of acknowledgements for making the data available on the Web. There is of course open question on who should be the judge on the matter…
Well there is a day in the year for any sort of things (the personal data protection day is on January 28th, and the free access to public documents day is on September 28th). Why don’t we have an open data day and by that a special opportunity to promote the philosophy and to talk about the vast possibilities, connected to open data initiative. I found out that the idea was not new (http://opendataday.org/), but then again nobody in my country talks about it, journalists don’t know about it… so It seems that some promotion is missing and perhaps more networking on the issue in Europe. Perhaps EU should have its own open data day…
The conference was part of the programme of the Latvian Presidency of the Council of the European Union.