Public information accessibility according to PSI standards: an enforceable obligation

The reform of the eGovernment, which came into force only a few months ago, is a far-reaching change not only from the point of view of the technological modernization of the administrative management, but also indirectly of the technical and legal conditions according to which information must be available in order to facilitate its re-use.

Indeed, the fact that all Public Administrations must necessarily use electronic means in their management and in the communications with citizens -with the exception of natural persons who are not enforced and who, in their case, do not choose this mean of notification- supposes that the strictly legal dimension of the guarantees and requirements that must be respected rests, ultimately, in the effective compliance with the technical norms that are established as minimum standards to be respected.

This leads, first of all, to the fact that it is essential that the applications used for dossier handling and, in general, for document management are subject to the criteria established in the National Security Scheme, approved by the Royal Decree 3/2010, of 8 January. This obligation has been clearly set for the single electronic file that all Public Administrations must carry out, as expressly required by the Article 17.3 of the Law 39/2015 regarding actions generated in the administrative proceedings and, more broadly, in the Article 46.3 of the Law 40/2015 in relation to any type of administrative action, regardless of whether it is part or not of a formalized record.

Secondly, the references to the criteria established by the National Interoperability Scheme, approved by Royal Decree 4/2010, of 8 January, are also diverse throughout the articles of the aforementioned laws. Nevertheless, a superficial reading of the  Article 156.1 of the Law 40/2015 could lead to the conclusion that its compliance is not mandatory, since this provision uses the term "recommendations" to refer to the content of that Scheme. In that case, this is an erroneous conclusion, since, on the one hand, the legislature itself considers in that provision that administrations must take account of the criteria it establishes and, on the other hand, sets an unequivocal obligation by preventing the Autonomous Communities and Local Entities develop or acquire applications that do not respect the aforementioned National Schemes, as is clear from the second additional provision of Law 39/2015.

Given the legal requirement of the criteria of the National Interoperability Scheme, this obligation must also be affirmed according to the Technical Standard for Interoperability of Re-use of Information Resources. This regulation has been issued under the auspices of ENI in order to "ensure the process of re-use of public information from public administrations, the persistence of information, the use of formats as well as the terms and conditions of suitable use".

Thus, the documentary management applications that are developed or acquired by the Public Administrations to comply with the legislation on eGovernment dictated in 2015 will have to comply with these technical norms. As a result, it would be difficult to justify that Public Administrations are referring to the impossibility of offering access to the information in their possession in an automated way, because it is necessary to treat or re-elaborate it, which could happen in those cases in which the information was linked to natural persons and anonymity was essential.

So, the "disproportionate effort" referred to in the article 5.2 of the Law 37/2007, of November 16, on the re-use of public sector information, as a reason justifying the denial of access to documents and data held by Public Administrations according to the open and machine-readable criteria and standards, must be interpreted in a very restrictive way. Otherwise, the decision to comply with or ignore the technical standards - in particular those related to interoperability - would remain in the hands of each administration simply arguing that it is necessary to re-elaborate the information and, therefore, that treatment entails a disproportionate effort. In other words, currently it can not be conceived that a document management system would be designed without taking into account the requirements of the re-use regulation, in a way that it is taken into account in advance maximising the access to data and, therefore, avoiding the potential legal problems that may exist in the case of the protection of personal data or other legally established limits such as intellectual property.

In the end, if the Public Administrations are legally enforced to comply with the National Interoperability Scheme and its technical standards when developing and contracting applications related to the document management that they have to carry out in the context of the current regulation on eGovernment, the answer to the question initially raised can only be affirmative.