Transparency and re-use of public sector information: two complementary views from the legal perspective?

As has been rightly highlighted, there is a tendency to use in a general manner concepts based on openness and data management and, also to link this to the need to strongly promote transparency and therefore, the democratic character of public institutions as well as the need to invest in technological innovation in order to make progress in controlling deviant behaviour. Moreover, the existence has been mooted of a direct relationship between participation and the openness of Government from the perspective of freedom of access to information in environments where ICTs are called to play a leading role to the extent that they help achieve those goals.

Nevertheless, at least from the standpoint of Law, there are certain important differences and an attempt will be made to clarify these in order to facilitate the implementation of the regulatory framework for each of the informative treatments. Although it is necessary to admit as an inexcusable premise that Open Government must be based on transparency as one of its main axes, this principle in itself cannot state unequivocally that data can be reused according to the criteria specific to open data. In this regard it needs to be pointed out that, from the legal point of view, in Spain there is no legal definition that uses this concept, so the analysis must be redirected to the regulatory framework on re-use of public sector information. Thus, one may discuss to what extent the forecasts thereof approach the open data model since they contemplate the possibility of setting charges for the provision of documents for re-use.

Although the regulation on transparency and access to public sector information establishes a clear obligation for active publicity through the websites of public institutions, which must be carried out in a clear, structured and understandable way, this only establishes a mere preference for reusable formats, without specifying the scope of that principle. In fact, as regards accessibility of information, the legislator is clear in stating that information disseminated under the legislation on transparency shall not only be accessible but also free, this requirement being incompatible with charging fees as mentioned above.

Even from the point of view of the relationship with the final beneficiaries -the public- in the case of the regulation on re-use the purpose of access is not the information itself but, on the contrary, the services provided by a third party - the so-called re-user agent in the national regulation - based on the data provided by public entities, so that they can even charge their customers for the added value provided by such services.

In conclusion, the different aims provided for by the two policy frameworks have an important consequence in terms of the possibilities for using the data and its limits. In this regard, the fact that certain data are published under the legislation on transparency does not involve by itself a tacit authorization for its re-use under the regulation of this last informative treatment, as shown by the existence of an administrative system for re-use which is based on the need for a license or even a prior authorization for the corresponding application and processing of an administrative procedure. Even, from the perspective of protection of personal data, there may be sufficient legal protection for the publication of information related to individuals under the law of transparency, which in no way means that treatment for re-use purposes is lawful.

However, it is unquestionable that the possibility of re-use of public sector information requires prior accessibility according to certain technical parameters and, in this sense, the regulation on transparency can contribute greatly to achieving shared goals. Therefore, taking into account the current -and advanced- technological context in which the activity of the public sector operates with the implementation of eGovernment, it seems that the time has come to address a joint regulation of both subjects committed to determinedly promoting transparency from the perspective of the re-use of information. Or, considering that the activity in which the data is generated is publicly funded, should we say instead from the perspective of open data? The debate is assured.