Private collaboration in the provision of municipal public services: the role of open data

The traditional concept of public services is based on the reserving certain activities to the public sector exclusively because of their being essential for the satisfaction of public interests. As provided for in Article 128.2 of the Spanish Constitution, in order to exclude a particular service from the competition of the private sector it is essential for a regulation having the force of law to provide for this. Thus, the decision on the configuration of a particular activity as a public service and, therefore, on preventing individuals from carrying it out, is reserved for the legislator except, of course, in the cases provided for in the law on public sector contracting.

According to the latter, the contract for management of public services means entrusting public services a person, natural or legal, with the provision of an activity that has been legally assigned to scope of authority of a public administration. Collaboration through this contractual instrument carries an important consequence from the perspective of Open Government, since it requires the conclusion of a procedure for selecting the contractor, who is charged with the provision of the service exclusively, that is, without other subjects being able to carry out such activity in the same territorial area. For this, the legislator contemplates various contractual arrangements - concession, shared management, concertation and mixed economy company - the main feature from the point of view that interests us now is that in all of them a formalized legal relationship is established.

As regards local authorities and, in particular, municipalities, certain activities are considered by the legislature as public services and therefore individuals cannot perform the activity except by virtue of the appropriate contract. Although legally there is provision for the participation of citizens in the affairs of local public life, the fact is that such a measure is implemented through formalized organic and procedural channels: specifically, by creating organizational structures, intervention in plenary sessions, the presentation of popular initiatives, through the process of public information within an administrative procedure, on the occasion of a popular consultation.

Opening-up of data and municipal services

However, opening up data to the public for reuse, whether for commercial purposes or for democratic participation in public affairs, requires a less restrictive approach. In this sense, it is essential to allow and facilitate the public’s collaboration through flexible channels that, leaving aside formalized contracts, facilitate the development of applications and services that serve to achieve greater efficacy - and, why not, efficiency too - in the provision of public services.

Although one might think that this is a purely theoretical approach, the fact is that it has already been tested successfully in various services of municipal competence and has allowed, for example, an improvement in the cleanliness of streets, a reduction in the number of traffic accidents, a rationalisation of works on public roads or simply increased access to information held by the City Council. But the opening-up of data linked to municipal services not only has the advantage of a greater involvement of citizens in the better performance thereof, but can also indirectly contribute to optimizing coordination with other Public Administrations and also internally among the various Departments and municipal bodies. Undoubtedly, apart from the democratic reinforcement of transparency based on openness of data, this type of initiative also allows information to be shared with other public entities and outside of strictly formalized channels, the importance of which cannot be underestimated but rather redirected to the cases in which such formalization has its true meaning.

In the context of increasing telematic interconnections encouraged by smart city projects, a broader vision is needed which ultimately will facilitate the exchange of data related to the provision of public services. Apart from it being possible to develop commercial applications of great utility, the opening-up of data is also a very useful way to strengthen citizen participation, giving it a leading role in accordance with the innovation that is demanded from the public powers with increasing intensity In the context of Open Government. For this it is essential to make a commitment to an institutional project promoted both at political and administrative level, in which co-creation of public services constitutes one of the main areas in which the cooperation of the public outside of the formal procedures typical of public contracting. And in this respect, the initiative launched by the Spanish Federation of Municipalities and Provinces-FEMP is destined to become a benchmark in addressing the opening of data at municipal level.