The regulatory framework on the re-use of public sector information: comments for future revision

The European Union has just made public a paper that, several years of the 2013 reform bring in force, proposes how to tackle overcoming the barriers and difficulties that have been detected since. Recognising the important advance that has taken place over the last few years, the Commission highlights that it there is still a significant number of obstacles, in the context of the Digital Single Market Strategy 

With it a process of reflection and evaluation has started that aims to prepare an initiative on accessibility and re-using public information that will be launched over the next few months. It is a revision that, ultimately, each State has to develop according to internal regulations. Only in this way will it be possible to check to what extent these obstacles are truly present in their own context and they could be hampering the effective re-use of public sector information. What are the barriers that are identified in this working paper? 

Regarding the limitations to the subjective scope, the European Commission warns for the need to extend the enforcement of re-use regulations which are projected under three parts:

• Private-legal bodies, at times with a status that gives them autonomy or a certain independence, that they have delegated the execution of their own activities from the public sector. This would be the case of those subjects who, even being under the control or public funding, are a company of foundational nature. But also the bodies with public-legal status that do not concur the demands from article 2.d) of Law 37/2017, that is, that they have been created to satisfy the needs of public interest that are of an industrial or commercial nature.
• The private-legal subjects that, however, carry out a public service activity in name of the administration holder, for example the concessionaries. In relation to these, it should be considered how the information would be accessed directly in their power from the demands and principles of open data. 
• The European Commission considers the possibility of extending regulation to certain data of strictly private subjects, at least when this possibility can result in improving the functioning of policies and public services, expressly citing the case of the Government Statistics Act.

In relation to the conditions to access the information, they highlight three high impact issues on the possibilities of subsequent re-use:

•  It stresses the need to advance the provision of data in real time according to recognised standards. The practical reality of managing documents in the public sector has still not been achieved - except for the highlighted exceptions - the expected level of modernising technology, in a way where the use of paper still enjoys an undeniable implementation.
• From the point of view of the cost to re-users, the 2013 Directive and the transposition in Spain of the rules related to the cost during the 2015 reform involved an important advance in highlighting that the tariffs should be limited “to marginal costs that are incurred for their reproduction, provision and distribution”. The Commission has noted that there is an extended practice that tends to require very high amounts. As anticipated, the Considered 28 of the cited reform of the RISP Directive in 2013, is essential to reinforce guarantees in terms of administrative complaints to effectively and efficiently control the decision adopted by public bodies without needing to raise a long and costly legal process.
• Regarding licences, through those that specify the conditions for re-use, it is emphasised that the diversity of licences clearly cause difficulty which should be addressed in terms of a greater interoperability in legal terms of the conditions considered.

Finally, the European Commission considers to expand the objective scope of regulation on re-use to a strategical scope: the research activity. It is a significant challenge as there is an undeniable plurality of conflicting interests at play, both at an individual level of researchers and institutionally, in terms of the research agencies and funding bodies. 

Despite the important regulatory advances produced over recent years, it is clear that the issue of the legal aspects of re-using information linked to the public sector is not definitively closed, not even after the 2013 reform. Over the next few years we are compelled to reform legislation at a European and state level and to weigh up multiple and different legitimate interests that will not always be aligned.