JILT 1996 (3) - Maeve McDonagh

Access to Public Information:
A key to Commercial Growth and Electronic Democracy

27th & 28th June 1996
Stockholm

Reviewed by
Maeve McDonagh
University College Cork
m.mcdonagh@ucc.ie

1. Introduction
Day One: 2. Opening Session; 3. National Experience; 4. Facing Dilemmas; 5. Improving Public/Private Sector Synergy
Day Two: 6. The Information Society and democracy; 7. EU Actions; 8. Prospective Reflections; 9. Summing Up
10. Conclusion

Date of publication: 16 July 1996

Last Updated: 30 July 1996

Citation: McDonagh M (1996), 'Access to Public Information: A key to Commercial Growth and Electronic Democracy', Conference Report, 1996 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/elj/jilt/confs/3access/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/mcdonagh/>

1. Introduction

Sweden, with its long tradition of openness of public sector information, was the obvious choice of venue for this conference which was aimed at stimulating debate on access to public sector information in the information society. The conference took place in the context of the INFO2000 programme of the European Commission. The objective of the programme is to stimulate the development of a European multi-media content industry. Access to public sector information is seen as a vital element in the achievement of that objective. As part of the INFO2000 programme, a Green Paper aimed at stimulating public debate on access to information is due for publication in September, the results of which are expected to include proposals for legal measures. The conference afforded the opportunity of exploring the various legal and policy issues arising in relation to access to public sector information which will need to be addressed by the Green Paper. While the aim of the INFO2000 is to stimulate the market for information, the special significance of access to public sector information to participation in the democratic process was also recognised in the conference title.

The conference, which ran over two days, was attended by approximately 300 people, giving some indication of the growing importance of this issue. Delegates came from the United States, Norway, Poland, South Korea, Iran, and all of the EU member states and Institutions. There were six substantive conference sessions.

2. Opening Session

The chef de Cabinet to Commissioner Bangemann, Mr Paul Weissenberg gave the opening speech in which he emphasised the dual role of public sector information. In arguing for access as a democratic imperative, he referred to the possibility of the development of a two tier information society. Indeed concern about the emergence of a society of information 'haves' and 'have-nots' became one of the dominant themes of the conference as a whole. In order to address that problem, Mr Weissenberg asserted the need for a right of access to public information. The need for transparency not only in the member states but also within the institutions of the EU was acknowledged. At the same time, the commercial significance of public information was referred to and in particular the importance of the information content industry as a source of employment. The need to improve the synergy between the public and private sectors was seen as a prerequisite to the development of a strong information market. It was acknowledged that the issues of competition, copyright and privacy would need to be addressed in the formulation of policy on access to public information.

The Swedish Justice Minister, Mrs Lala Freivalds also spoke in the opening session. Her comments were mainly concerned with access to documents of the European Institutions and she referred to the Swedish submission on that issue to the Intergovernmental conference. Perhaps surprisingly, the Minister was restrained on the question of the development of EU standards concerning access to public information at national level. She saw no need to harmonise national rules concerning openness and stated that it must be left to the member states to formulate law and policy in this area at the national level. A note of caution was sounded in relation to accessibility of electronic sources of information both in terms of access to equipment and to education on the use of information technology. The Minister warned that care should be taken that electronic sources of information should not become the reserve of the few.

The Opening Session concluded with a contribution from Mr Alan Donelly, Member of the European parliament. Mr Donelly stressed the need to shift the emphasis in debate on information technology from infrastructural issues such as the liberalisation of communications regulation to the issue of content. He argued that greater attention should be paid to the presentation of information in palatable form and in that regard his reference to the some of the information provided on-line by the EU as impenetrable was greeted by vigorous head nodding on the part of many of the assembled. Mr Donelly argued too that access to public information can be used to combat the crisis of confidence faced by institutions of government both at E.U. and member state level and he advocated the urgent adoption of new rules to deal with the various legal issues concerning access to information in electronic form such as privacy, encryption, ownership of information, freedom of expression and protection of minors. He concluded by urging the EU to take a lead in promoting openness despite opposition from some member states which see openness as a threat to their authority.

3. National Experience

The first substantive session of the conference, which was moderated by Dr Herbert Burkert, Chairman of the Legal Advisory Board, focused on the national experiences of access and dissemination policies in the countries of Sweden, the U.S., the U.K. and France.

Professor Peter Seipel of Stockholm University gave an interesting account of the Swedish experience. He argued that the advent of IT requires a reevaluation not only of the legal concepts concerning access to information but also of the aims of access laws since attempts to adapt existing legal concepts will necessarily lead to policy decisions on the scope and extent of access laws. Prof. Seipel acknowledged that in Sweden there has been a reluctance to provide access to public information for purposes of commercial exploitation. However, efforts have been made to define basic information services and these have culminated in the Information Technology Bill of 1996 which presupposes three basic categories of information namely citizens information, basic social information and commercial information. Legal concepts requiring reinterpretation, it was argued, include not only the definition of document but also issues such as whether accessible units of information must pre-exist and at what stage a public authority can be said to have received information - for example, should access laws apply to all electronic information to which a public authority has access or only to the e-mail messages it has received. Prof. Seipel concluded by remarking that two hundred years of openness may be of limited value if the tradition cannot be rejuvenated to match the new opportunities of the electronic information era.

The next speaker was Mr Robert Gellman, a Privacy and Information Policy Consultant from the U.S. Whilst to most Europeans, the situation in the U.S. concerning to access to public information might appear Utopian, Mr Gellman provided a useful and clearly expressed account of some difficulties in accessing public information in that jurisdiction. These include the fact that because some agencies are required to be self supporting they have to impose heavy access charges. Problems of bureaucratic resistance, technological issues and the difficulty of determining the respective roles of the public and private sectors were also referred to.

Mr John Wreford of HMSO outlined the main issues affecting access to public information in the UK. These were said to include the pricing of information, the formation of agencies with commercial targets, the development of the Open Government initiative and the influence of the freedom of information campaign. Mr Wreford stated that most of HMSO is to become a private company by the end of September. The part which will remain public will have responsibility for licensing copyright and it was suggested that this should result in the licensing regime becoming more liberal since there will no longer be a question of competition between the public and private sectors. In terms of improving access to information, it was stated that the full text of Acts of Parliament are to be published on the Internet and that approval had been obtained for the publication of Hansard there.

The session concluded with a paper on public data dissemination policy in France by Mrs Martine Viallet which indicated that while access rights are well catered legally for there are deficiencies in the area of dissemination of information. There is, for example no general index of documents and the law requiring administrations to publish documents which include interpretations of the law on a regular basis is not evenly complied with.

4. Facing dilemmas

The second session of the conference, which was moderated by Mr Jan Freese of Sweden, addressed a number of issues which may limit access to information. These were privacy (dealt with by Mr Ulf Brühann of DGXV), Copyright (Mr Charles Clark, Copyright Advisor) and secrecy (Mr Ton Beers, Tilburg University). None of the contributors saw the problems posed as insurmountable.

Mr Brühann listed principles of the Data Protection Directive which might be seen as incompatible with freedom of information. These include the purpose limitation principle which gives rise to the question whether the collection by a public authority of data for public access as well as for its own official purposes is in line with the Directive. Other potential sources of conflict referred to were the principle that data should not be kept for a purpose longer than is necessary, limitations on the processing of data and the issue of sensitive data. Despite these difficulties, Mr Brühann concluded that there is no inherent incompatibility between data protection and freedom of information but rather they are both necessary and complementary to enable citizens to participate fully in democratic society. It was conceded, however, there are some matters which need to be resolved, in particular the issue of secondary uses of information for different purposes.

Mr Clark argued strongly that rules of copyright for official material ought to be part of a legislative framework for access. He advocated the use by member states of the option available under Article 2(4) of the Berne Convention to exclude legal texts from copyright.

Mr Beers provided a comparative perspective on laws relating to secrecy. He argued that limitations on the public's right to know be scrutinised with the utmost care and precision.

In an additional item, Mr Daniel Byk of Eurostat gave a presentation which focused on the issues concerning access to statistical information. He argued that while basic statistical data should be freely available, charges should be levied for more specialised statistics.

5. Improving Public/Private Sector Synergy

The next session focused attention on one of the two major themes of the conference, namely the role of access to information in improving the synergy between the public and private sectors in the information market. The session was moderated by Mr Frans De Bruïne of DGXIII.

Mr David Worlock provided a view from the private sector. He pointed to the difficulties faced by database providers in having to deal with 10-15 different sets of regulations relating to access to information within the EU and suggested that the U.S. is a better environment for the development of business databases. He argued passionately in favour of the introduction of a Directive which would deliver non-exclusive, low or no cost access to source data.

Mr Nouel, a French barrister, considered the question of the role of competition law in the commercialisation of data in France. He gave examples of instances of unfair competition between the public and private sectors in France and explained some of the difficulties faced by those who try to challenge such unfair competition. These include reluctance to take on large public sector bodies in legal challenges as well as jurisdictional difficulties.

Professor Henry H. Perritt Jr of Villanova University School of Law contributed a comprehensive paper entitled 'Defining public information management policies: a necessary reengineering of the public sector'. Professor Perritt argued that citizens access to information is best provided through a diversity of channels. He considered the impact of the Internet on access policy and concluded that it would encourage competition by lowering the barriers to entry. He warned against allowing monopolies to develop through the granting of exclusive rights and suggested that the EU should address freedom of information, commercialisation of public sector data and privacy issues together.

The Director General of the Swedish Data Inspection Board, Mrs Anitha Bondestam, was the last speaker of the day. She came to terms with the 'graveyard shift' in admirable fashion by delivering a lively presentation in which she provided some vivid examples of the threat to privacy posed by commercialisation of public sector information. She noted that these practices are particularly incompatible with the purpose limitation principle and queried whether that principle was now obsolete. There followed a lively discussion which included a presumably tongue-in-cheek query from Mr James Michael as to whether privacy of personal information in the public sector can now be regarded as an added value to be provided at a price.

The first day ended with an optional seminar on 'Law and Information in the context of training' which was addressed by Messrs Deberghes and Scharf of the European Commission and Prof. Seipel. The aim of the seminar was to initiate a debate on the training requirements concerning law and information which ought to be targeted by the INFO2000 programme. For those who attended the seminar, the days work concluded at 18.45 leaving delegates exhausted from the effects of information over-load but with just enough energy to attend the very convivial reception hosted by Stockholm City Council in the beautiful City Hall.

6. The Information Society and democracy

The second main theme of the conference, namely the role of access to public information in promoting electronic democracy was dealt with in the first session of the second day. The session was moderated by Mr Aidan White, Chairman of the Information Society Forum Working Group on the 'Basic Social and Democratic Values in the Virtual Community'.

Prof. Yves Poullet of the University of Namur argued in favour of the development of universal information services. The idea of the universal service is to determine minimum standards for information access applicable to all, regardless of means. He argued that the universal service should be defined politically, it should be refined as society progresses and could be provided by private operators without distortion of competition.

Prof. Stefano Rodota of the University of Roma contributed a thought-provoking paper on citizens' participation in an electronic democracy. He argued that the relationship between citizens and institutions of government has changed as a result of developments in technology. Technology can , for example, allow electors to continuously apply pressure to their representatives rather than just on election day. The question was posed however whether developments in technology have made citizens more powerful or rendered them more susceptible to manipulation. The possibility of the emergence of a two speed society was highlighted. Prof. Rodota also pointed to the need to find solutions to the three ps - property, pornography and privacy and he advocated the development of an information bill of rights to resist the powerful forces in the IT industry which are pushing towards more social control. The session ended with a presentation on a practical attempt to enhance democracy through the use of information technology, the Pericles project, which is being run on a pilot phase in 3 cities in Greece, France and Cyprus under the direction of the University of Athens.

7. EU Actions

The second session of the day had as its theme the development of actions concerning access to information at EU level. The moderator was Mrs Charlotte Pitrat and there were two speakers, Mrs Mary Preston who gave a presentation on openness in the context of the EU institutions and Mr Frans De Bruïne who dealt with what to most delegates constituted the most substantive item on the conference programme, namely the prospects for action concerning access to public information at EU level.

Mrs Preston gave a clear overview of developments concerning openness at EU level and reported that the Code of Practice on access to Council and Commission documents had resulted (up to the end of 1995) in the documents requested being handed over in 60% of cases where Council documents were concerned, with the figure for Commission documents being 82%.

Mr De Bruïne set out the agenda for the enhancement of access to public information. He began by looking at the rationale behind the INFO2000 programme. He then considered Europe's competitive position in the global information market and the role of public sector information in the development of that market. He went on to address the forthcoming Green paper, stating that its role would not be to predict the future or to promote particular ideologies or state solutions but rather to address the key questions and to propose policy options building upon diversity. Issues which will be considered in the paper include the definition of public sector information, to what extent there should be a right to public sector information, who should enjoy such rights and in particular whether there should be any barriers to their commercial exploitation. The issues of electronic formats, pricing, whether active obligations concerning dissemination of information should be imposed upon public authorities, the nature and scope of exemptions from access rights, the role of copyright and competition law etc. will also be addressed. In terms of options for action, measures to be considered in the Green paper may range from legislative action through projects to encourage public/private synergy to practical mechanisms to facilitate access and training initiatives. The Green Paper will, according to Mr De Bruïne, be published in late September. In the discussion which followed the obstacle to development of access to public information initiatives at EU level posed by the language problem was articulated strongly. It was suggested that this was an issue which was not sufficiently addressed in the conference programme.

8. Prospective Reflections

The final session of the conference was on the theme of prospective reflections. The moderator was Prof. Jon Bing of the University of Oslo. Mr Ronald Plesser, a U.S. attorney reflected on the U.S. situation and Mrs Ruth Kerry of the UK Centre for Information Systems who is co-director of the G7 Government On-line Project spoke on 'Future information technology and access to information'. She began by considering the information needs of consumers, went on to discuss the various categories of information provider and continued by formulating a number of principles which should be adhered to in the development of integrated information services, such as the need for transparency of information providers - in regard to pricing amongst other issues, the need for not only a single-stop shop but also a non-stop shop for information services, and the need to provide access to information through a variety of means and locations. She then provided details of the Government On-Line project.

9. Summing up

The conference was summed up by Dr Herbert Burkert, Chairman of the Legal Advisory Board of DGXIII. He identified three stages in the conference. The first was the exposure of delegates to the complexity of the questions concerning access to public information including the myriad of legal and policy issues involved, the different types of information concerned, and the various governmental levels at which actions could be taken. The second stage of the conference according to Dr Burkert was a movement towards the identification of a structure within which these issues can be addressed. He referred in particular to the role of the Legal Advisory Board in this process. The third stage was recognition of the need for action which can take place as a result of building on experience, through following the example of other countries such as the U.S. but also of the community institutions or by force. In relation to the latter, Dr Burkert advocated the introduction of a Directive on access to information which would grant every citizen equal access to information and would set out goals for the provision of such leaving the details to the member states.

10. Conclusion

This conference was very successful in bringing to the attention of the large number of delegates the complexity of issues surrounding access to public information. Freedom of information law, copyright, competition law, data protection, the most appropriate roles for the public and private sectors in the provision of access to information and the danger of the development of a two tier information society were amongst the issues raised in the excellent conference papers. Had more time been available for discussion, these issues could have been subjected to a greater degree of debate. The amount of information provided over the two days was vast. This gives rise to criticism of a minor nature. Apart from the Commission speakers, only a handful of speakers used visual aids in making their presentations. Given the number of papers presented and the fact that copies of the papers were not available on the day, visual aids would have been useful. Such deficiencies in the presentation of information were surprising in view of the theme of the conference. Perhaps the under-utilisation of visual aids stemmed from a reluctance to complicate matters from a language point of view, given the use of simultaneous translation services. Overall the conference organisation was excellent and delegates left with their appetites whetted for the publication of the Green Paper. It will face a major challenge in seeking to address the various issues raised in the course of the conference.

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