Inventory
Re-use of Public Sector Information
What is it?
Public bodies gather details about citizens, business enterprises, land use, public decisions, vehicles, food, meteorology, health and most other sectors of society. Such collections of public data, drawing information from across different public services, are increasingly available in electronic databases which, ultimately, may be compatible with each other. Interoperability will make exchanges between databases technically possible, even if that may not be desirable or legally valid from some perspectives. Public sector information is of great value, particularly in an electronic environment. The private sector has therefore a strong interest in this data as it may represent a unique source of certain information, while the public sector also has an interest in its own re-use of this data.
In EU Directive 2003/98/EC on the re-use of public sector information, usually referred to as the ‘PSI Directive’, ‘re-use’ is defined as the use by persons or legal entities of documents held by public sector bodies for commercial or non-commercial purposes other than the initial purpose related to the public task for which the documents were produced. The exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute such re-use.
Why might re-use of PSI be related to barriers to eGovernment?
Certain eGovernment services imply the re-use of information gathered or produced by public administrations, whether that re-use is proposed by the public sector itself or by interested private actors. Although the PSI Directive has an impact on eGovernment by tackling many related issues, it does not eliminate all obstacles concerning the re-use possibilities of PSI and the establishment of a pan-European public information market.
The following are key areas where potential obstacles relating to the re-use of public sector information are being encountered in the current European landscape:
- The PSI Directive leaves to the Member States and their public bodies the determination of whether or not to allow the re-use of public sector information. Hence, there are no guarantees about the re-use of public sector information for citizens and businesses.
- As the Directive bases the re-use system on the access regimes of the Member States, implementation varies between Member States – and sometimes between different governance levels within a nation.
- Data protection rules and/or intellectual property rights (IPR) conditions may prevent the re-use of some documents. Furthermore some documents are excluded from the scope of the PSI Directive (e.g. documents relating to public sector broadcasters and educational and cultural institutions, including museums).
- Competition rules that apply to the public sector must be considered in determining whether public bodies may themselves exploit public sector information.
- Technical matters of significance to re-use effectiveness (e.g. a lack of common standards or formats; insufficiently clear information about ways to access public documents in Member States; and no common guidelines for storing such documents).
- Difficulties arising from the need to cater for several languages.
- A lack of clear harmonization regarding charges for the re-use of public documents.
What is the European context for this area, including legislation, policy statements and institutional arrangements relevant to this topic?
The Commission took its first steps on re-use of PSI in 1989 with the (not binding) ‘Guidelines for enhancing synergy between public and private sectors’, which aimed to strengthen the position of the private sector in the European information market and limiting the role of the public sector bodies to the supply of raw data. In 1998, a second step resulted in the Green Paper (European Commission 1998 ‘Public Sector Information: A Key Resource for Europe’, COM(1998:585) on public sector information). Thereafter, a proposal for a directive was issued that finally resulted in the Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information, usually referred to as the PSI Directive. Currently, the ePSIplus Thematic network (http://www.epsiplus.net/) is supporting the implementation of the PSI Directive for the period leading up to its review in 2008, and provides a practical ‘one-stop shop’ for key information on PSI re-use across Europe.
What is the relationship of re-use of PSI to the seven barrier categories?
Leadership failures: Significant. As the PSI Directive does not impose re-use, the decision to allow the re-use of PSI depends on the policy of each Member State. If there is no global policy about it within a Member State, re-use possibilities only rely on initiatives and willingness of persons holding the regulatory power inside an administrative department or a public entity.
Financial inhibitors: Very significant. Following the PSI Directive charges fixed for the re-use of PSI must be “cost-oriented” and include a “reasonable return on investment” (article 6), but onerous charges can always result from the political choice to allow public sector entities to include also costs of collection and production in the charges imposed for re-using PSI. This is particularly true in areas where competition exists between public interests and private ones.Moreover, the PSI Directive is too imprecise about how to fix charges for the re-use of public documents and how to publicize them to form a basis for consistency across Member States.
Digital divides and choices: Significant. Re-use of public sector information can be hindered by a lack of transparency about re-use possibilities and related practical issues that can benefit or disadvantage different sections of society. Likewise, charging for public sector information can reinforce digital divides as Article 6 of the PSI Directive does not provide sufficient clarity as a harmonizing guideline. To offer information in easily re-useable form, documents need to be provided in formats that can be easily accessed by a wide range of potential users. Article 5 of the PSI Directive suggests a principle of delivery in electronic format “where possible and appropriate”, with no obligation to create or adapt documents nor to provide extracts where this would involve disproportionate efforts. A related potential barrier is the lack of common principles and guidelines for storing PSI, which can act as a barrier to access from certain technical environments.Finally, due to the diversity of its Member States, a major obstacle to eGovernment developments in Europe can be the need to make available public documents in languages of other Member States, in ways that can be understood by citizens/businesses or public bodies of other Member States.
Poor coordination: Very significant. The PSI Directive is substantially limited as a tool for harmonizing regulation of the re-use of public sector information, with no effect on the principle of whether re-use itself should be allowed. As it leaves detailed regulation to the Member States and their public bodies, there is no overall guarantee in the EU regarding such re-use. Other rules regulating specific areas at national, regional or even local level may also have to be taken into account when addressing the question of re-use of PSI in order to develop eGovernment services or products. Moreover, the PSI Directive has not solved the problem of divergences of national legal regimes regarding IPR or the absence of such rights for certain government documents. Likewise, this Directive cannot over-ride the protection of individuals with regard to the processing of personal data as the data protection legal framework has an effect on the re-use of electronic public sector documents, such a barrier can be justified by the concern for protecting other important interests (i.e. the data subject’s interests in controlling data relating to him/herself). In a highly fragmented arena such as the public sector there is also the problem of the difficulty to identify the way to obtain information, the availability of information and the conditions under which such information can be accessed for re-use in every Member State, which increases the ineffectivity of cross-border access to PSI and re-use regimes.
Workplace and organizational inflexibility: Significant. Although the adoption of the PSI Directive has begun to change the situation, a lack of a PSI re-use culture persists in Member States. Some public sector documents are also excluded from the scope of the PSI Directive, such as those for which third parties hold the IPR. In addition, Article 1(2)(a) of the PSI Directive determines that its regime is not applicable to documents that “form part of an activity falling outside the scope of the public task of the public sector bodies”. In applying the PSI Directive, it is very important to determine what a ‘public task’ is and is not. Furthermore, competition between public interests and private ones is an important consideration in relation to PSI re-use. As the difference between raw and added-value data in electronic form is small, public bodies are often tempted to exploit their information to gain revenue for themselves and competition rules will not necessarily prevent them from doing this. It is not so easy to determine when the re-use legislation applies as the article 2(4) of the PSI Directive is not clear about the meaning of “for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced”.
Lack of trust: Significant. The private sector has generally the impression that there is no “independent” counterpart against the all-powerful public bodies regarding the public sector information, as they can unilaterally decide what is or not within their “public task” and totally exclude some re-use. Even if the Article 4(4) of the PSI Directive states that “any negative decision shall contain a reference to the means of redress in case the applicant wishes to appeal the decision”, there is clearly a lack of transparency to simplify the appeal procedures in practice, and private stakeholders have the impression that nothing is done to change that established fact. Moreover, there are often no general guidelines at the national level and specially a lack of awareness regarding the economic opportunities of the re-use of PSI.In the UK, the Office of Public Sector Information (OPSI) is a good example of the re-organization of services to meet the requirements of the PSI Directive: it is an “independent” body which is at the heart of information policy, setting standards and providing a practical framework of best practice for opening up and encouraging the re-use of public sector information. It also has an important role as a regulator of public sector information holders for their information trading activities, and also has the power to investigate complaints against public sector information holders made under the Re-use of PSI Regulations.
Poor technical design: Significant. There are problems of re-usability in relation to documents formats. At the same time, public services should not be expected to support unacceptably high new administrative and financial burdens in order to reformat older documents. There is also the need for conformity to technical open standards to ensure wide accessibility, at least at a technical level.