Open and smart Cities: some legal aspects for a successful relationship

The relationship between Smart Cities and re-use of public sector information is unquestionable, as several reports have shown at both national and international level. From a legal perspective it is necessary to consider certain implications that will not only help resolve potential problems in advance but also facilitate the active participation of both society as a whole and those who use the different public and private services in this type of environment.

Therefore, it is essential to start from the technological reality of Smart City projects, which is characterized by the participation of many different service suppliers. Thus, in the first place we are dealing with municipalities, which have primary responsibility for public service management. This latter can be managed or controlled by local administrations themselves by means of various organisational formulae or by private companies selected through the channels contemplated by legislation on contracting in the public sector.

In addition, the demand for IT connectivity leads to telecommunication companies playing a major role as well as users thereof; with the difference from a legal point of view that it will often be a matter of objects and not people. Moreover, municipal activity is often based on technological services provided by private entities which provide platforms and tools according to the needs of eGovernment - records, files, dossiers... -  many of which are managed from the cloud (cloud computing).

For some years, there has been a growing demand that gives rise to a very significant impact from the perspective of social innovation on which technological innovation is based. In particular, any modernization initiative must be aligned with Open Government budgets of and, in particular, with a sound commitment to transparency according to technology standards that facilitate the re-use of information, strengthening both social participation at all stages and in all forms of public action - design, planning, execution, control...- and public-private collaboration. An equally important aspect but certainly more complex from the contractual perspective.

Taking all these issues into account, the aim of modernization in the management of Smart City projects cannot be raised for the sole purpose of complying with a certain law, as has been happening with the 2007 regulation on e-government and, perhaps, as could happen again with the reform proposed in October 2015 of the legal regime of the public sector and of common administrative procedure. This is a danger that, from the perspective of the re-use of information, presents a particularly important challenge as regards the implementation of the obligations deriving from the regulation on transparency, which could be simply limited to the creation of portals unconnected to the singularities claimed by any open data initiative.

In fact, the regulatory framework mentioned above does not take into account the peculiarities of Smart Cities. This leads to a number of dysfunctions and barriers that may end up becoming a brake on social, civic and business expectations for provision of services based on the re-use of information. In particular, it should be emphasized that municipal authorities are not the only entities that have to provide the data they have generated and managed in reusable formats, but that this requirement must be also extended at least to:

• Other public bodies such as national and regional administrations because otherwise fragmentation in some relevant sectors - culture, tourism, transport, environmental protection… - can become a nearly definitive obstacle.
• Public service suppliers which have to offer access to the information they manage directly and without local intermediation. It is imperative to overcome the constraints of the model established by the regulation on transparency for these cases as regards the obligation to provide information.
• Entities in charge of providing technological support to administrative management which are, after all, dealing with information owned by local administrations. Therefore it is the local authorities that have to establish the conditions for accessibility through the corresponding contractual documents.
• And, last but not least, the private stakeholders in charge of offering communication services who beyond any technical consideration carry out activities, commercial or not, that could be important depending on the sector the Smart City projects refer to.

This last requirement as regards the private sector is, without doubt, an important innovation, because, from the perspective of the subjective scope of those rules, its participation is not even contemplated.

Therefore, this shows the need to adopt a broader approach than simple compliance with the legislation in order to be truly committed to modernization - it would be more precise to say innovation - of the services delivered to society, in this case for the purpose of Smart Cities.

Consequently, in an environment where different stakeholders may have very different and possibly conflicting interests, access to information should not only be considered without restrictions but also on a basis of equality for all regardless of their legal status and nationality, thus complying with the demanding regulation on exclusive rights introduced by the European Union after the reform in 2013. Otherwise the minimum conditions will not exist for Smart Cities to be really open.

In a context conditioned by an excessively regulatory and inflexible view such as exists in many administrative areas, an unavoidable question arises: Are we really prepared to face these challenges?