Reuse of Public Sector Information: Looking at the European Commission’s New Directive

By Maja Lubarda, Legal Advisor to the Information Commissioner of Slovenia

Have you ever needed information on fastest, cheapest, most convenient form of transportation to get you from the airport to your hotel? Don’t you just love that app that tells you which neighborhood is safest or where the richest people live? How about getting information on which restaurant was fined for inappropriate sanitary measures (you don’t want to eat there!)? All of this is possible thanks to reuse of information, produced by public sector bodies (public sector information). Right now it’s one of the hottest topics in the EU legal and political arena.

It's been over a year since the European Commission adopted a new Directive on reuse of public sector information.  Member States now have until August 2015 to implement it and are having great difficulty doing so. The Directive introduces many major changes in this field and its’ implementation will require substantial legislative changes in many Member States.
The EU has never adopted legislation to harmonize access to public sector information (except access to environmental data), However, reuse has become one of top priorities on EU's digital agenda. While the original 2003 Directive  merely suggested PSI be available for reuse, the new amending Directive now finally obliges member states to make PSI available for reuse. This means that member states must provide for reuse of all content that can be accessed under national access to documents laws. The main reason for such promotion of PSI reuse lies in economics. Namely, the EU has been struggling to catch up with the US economic growth and one way to facilitate economic growth is to mandate PSI reuse. According to the Vickery study, the aggregate direct and indirect economic impacts from PSI applications and use across the whole EU economy is estimated to be of the order of EUR 140 billion annually, while the aggregate direct and indirect economic benefits for the EU economy, arising out of easier access, improved infrastructure and lower barriers could be approximately EUR 200 billion (1.7% of GDP) in 2008. It is no wonder that the EU wishes to exploit this potential for economic growith. Moreover, while the main reasoning behind introducing the right to reuse is mostly connected with economic aspects, mandating the right to reuse also enhances transparency. Harmonizing conditions on the right to reuse also harmonizes the conditions on the right to access of information.

Among other relevant changes are limiting the costs that public sector bodies can charge for reuse, expanding the scope of the Directive to certain cultural institutions (libraries, museums and archives), requiring member states have strong enforcement mechanisms and inviting states to provide PSI available in machine-readable and open formats.

As many other directives, the new reuse Directive will most probably be implemented very differently in individual member states. This is also due to the public sector bodies’ “cultural” differences in member states. A good example is in enforcement mechanisms. While there is a strong need for strict enforcement rules in Slovenia, this might not be true for countries such as Norway or the UK. While in Norway and UK, public sector bodies are happy to provide their information proactively to be accessed and reused making enforcement of the right to reuse almost redundant, in Slovenia, the mentality is often quite opposite. Many Slovenian public sector bodies still consider the information they produce as their own property and don’t quite grasp the concept of it being made public. Consequently, they often oppose issuing PSI to the applicant upon request, even when there are no legal reasons for rejection. It would be difficult to see them going a step further and allowing the public to reuse the information they have gathered or produced. It is, therefore, going to be quite a challenge explaining to public sector bodies that they are now obliged to proactively provide all the PSI they’ve gained within their public tasks - and not just in any format, but in an open, machine-readable one!  Persuading them to fulfill the five-star criteria for published data to be considered open data, given the fact that this is not a prerequisite by law, seems at this point almost impossible. 

Nevertheless, weighing the possible positive results of opening up the public sector and the efforts that will be necessary to achieve this goal, problems become challenges that the EU member states should look forward to facing. One should keep in mind that indeed, Rome wasn’t built in a day and neither will be the new European digital data empire.