1998 PSI a Key Resource for Europe

EUROPEAN COMMISSION

COM(1998)585

PUBLIC SECTOR INFORMATION : A KEY RESOURCE FOR EUROPE

GREEN PAPER ON PUBLIC SECTOR INFORMATIONIN THE INFORMATION SOCIETY

TABLE OF CONTENTS

Introduction: The issue 1

Chapter I : Why is public sector information a key resource for Europe? 3

I.1 Importance of access for European citizens 3

I.2 Public sector information: Opportunities for economic growth and employment 5

Chapter II : The Information Society and the public sector 8

II.1 Electronic Government 8

II.2 Electronic Government and public sector information 9

II.3 Electronic access for all? 10

Chapter III : Issues linked to access and exploitation of public sector information 11

III.1 Definitions 11

III.2 Conditions for access to public sector information 11

III.3 Practical tools for facilitating access 12

III.4 Pricing issues 13

III.5 Competition issues 14

III.6 Copyright issues 15

III.7 Privacy issues 16

III.8 Liability issues 16

III.9 EU information 17

Concluding remarks 18

List of questions 19

Annexe 1: Current situation in Member States regarding legislation and policy on access to public sector information. 20

Annexe 2: European Commission action relating to public sector information The background to this Green Paper 26

Annexe 3: Current situation in the US: the legal framework 28

1The issue

1. Public sector information1 plays afundamental role in the proper functioning of theinternal market and the free circulation of goods,services and people. Without user-friendly andreadily available administrative, legislative,financial or other public information, economicactors cannot make fully informed decisions.

2. Public information in Europe is oftenfragmented and dispersed and so in manyinstances it is less clear than intended. Thissituation is mainly due to differing nationallegislation2 on the ways information can beaccessed and exploited, and to various practiceswhich hamper the availability of data. The issueat stake is not that Member States shouldproduce more information, but that theinformation which is already available to thepublic should be clearer and more accessible topotential users.

3. The ready availability of public information isan absolute prerequisite for the competitivenessof European industry. In this respect, EUcompanies are at a serious competitivedisadvantage compared to their Americancounterparts, which benefit from a highlydeveloped, efficient public information system atall levels of the administration.3 The timelyavailability of public sector information is alsoincreasingly important to further the networkedeconomy and valorise its economic potential.

4. In Europe the issue is particularly crucial toSMEs, which have fewer resources to devote toan often difficult search for fragmentedinformation. Ultimately, this has a negativebearing on job creation. The same goes for thedifficulties European content firms encounter incomparison to their American counterparts asfar as the exploitation of public sectorinformation is concerned.

5. Moreover, in todays economy and society inwhich the Euro fosters the integration process,the fact that EU citizens and consumers cannotmake better use of public information availablein other EU Member States is something of ananachronism. In effect, this situation constitutesa challenge to the rights of citizens under the ECTreaties.

1 The definition of the public sector is an issue for discussionand is further analysed in Chapter III. However, state-ownedcompanies operating under market conditions and subject toprivate and commercial considerations are clearly not meantto be covered by this Green Paper.2 See summary of legislation in Annexe 13 Since the Freedom of Information Act was enacted in1966, the US government has pursued a very active policy ofboth access to and commercial exploitation of public sectorinformation. This has greatly stimulated the development ofthe US information industry. Annexe 3 gives a picture of thecurrent legal framework in the US.

6. Whereas the increasing use of electronicmedia to store and to disseminate public sectorinformation can serve to improve this situation,this has also tended to magnify still further thedifferences that already exist between MemberStates. Certain Member States have begun toexamine the effects of new technologies on thepublic service and in particular on access to andexploitation of public sector information.4

7. This topic is also important for theenlargement of the EU, where candidateMember States will have to adapt their legalsystems and public services to comply with therequirements of the EU membership. Betteraccess to public sector information willcontribute to this process.

8. The need for launching a concerted debateat the European level is now more clear andurgent than ever. The objective of this GreenPaper is to undertake a broad publicconsultation involving all the actors concernedwith a view to examining the main issues atstake and also to triggering a political discussionat European level. The Green Paper draws onthe results of an extensive preliminaryconsultation process that started in June 1996and has involved representatives from theMember States, from citizens and users groupsand from the private sector and more specificallythe information industry. All those consultedconsidered it appropriate to launch a debate onthis issue.

9. The subjects addressed in the Green Paperwere drawn from the results of this extensiveconsultation. The reactions to this Green Paperand to the questions it poses will guide futureaction on this issue. It is clear that furtherdiscussion and an exchange of best practice willbe necessary with the Member States and theother key actors.

10. Some issues may require technicalsolutions; some may be dealt with by improvingadministrative procedures; others will requirepolitical solutions. Depending on the results ofthe public consultation process, proposals foraction could be formulated by the Commissionto improve the situation at European level inspecific fields. Such proposals will, of course,only be considered where consistent with thesubsidiarity and proportionality principles. Thetype and intensity of any response must belimited to what is necessary to achieve theobjectives of the Treaties.

11. Nothing in this Green Paper, nor in anyfuture action which it might lead to, should be

4 e.g. The UKs Freedom of Information White Paper, theDutch memorandum Towards the Accessibility ofGovernment Information and the French Action ProgrammePreparing Frances entry into the Information Society

2seen as an attempt to prejudice national rulesgoverning the system of property ownership, northe role of any public body in the MemberStates.

All interested parties, both from the public andprivate sectors, are strongly encouraged toprovide their views on the issues raised in thisdocument. The Commission would be pleasedto provide additional background information onexisting Commission or national access to publicinformation policies upon request. Answers,comments and requests should be sent to thefollowing address before 1st June 1999 European Commission Attn. Mr. Huber Head of Unit DG XIII/E-1 Btiment EUROFORUM Office 1174 Rue Alcide de Gasperi L-2920 Luxembourg E-mail address: [email protected] Hard copies of all submissions will be madeavailable at the conclusion of the consultation,unless a request for confidentiality is received. AWeb site has been opened for the posting ofboth the Green Paper and submissions receivedat the address: http://www.echo.lu/legal/en/access.html

3Chapter I : Why is public sector information akey resource for Europe?

I.1 Importance of access for EuropeancitizensTaking advantage of EC rights12. The EC Treaty has conferred a number offundamental freedoms on EU citizens. Thereare, however, considerable practicaldifficulties that can prevent people fromexercising those rights. These difficulties resultprimarily from a lack of transparency forcitizens, employers and administrations at alllevels.5

13. In many cases, the information may bespread over different databases or informationpoints of local administrations. A bettertransparency of public sector information cantherefore strengthen the rights conferred by theEC Treaty by improving the practical conditionsfor their application.

14. The existence of different languages inEurope will continue to hamper to some extentEU-wide access to public sector information.However, the provision of a multilingualinformation could be facilitated in particularthrough the use of ICT-technologies.6

15. Access to public sector information isessential for the mobility of both workers andcategories like students and retired peoplewithin the EU. A better knowledge ofopportunities, circumstances and procedures incountries throughout Europe can help them tomake more informed choices about mobility andto take full advantage of the right to move toanother EU country.

16. The following example shows that efforts arebeing made at European level to improveinformation flows, thus enhancing mobilityperspectives for individual workers within theEuropean Union.

5 See for example the Single Market Scoreboard of May1998, p.14ff.6 The language engineering activities in FrameworkProgramme IV and V for R&D address the technologicalaspects of this issue. The R&D-actions are complementedby the market oriented MLIS programme: multiannualprogramme to promote the linguistic diversity of theCommunity in the Information Society, O.J. N L306,28.11.1996, p. 40.

The European Commission has created, together withthe Member States the EURES Network, with thesupport of the EUs Interchange of Data betweenAdministrations (IDA) programme. This networkaims to interconnect job vacancy databases in everyEuropean country to a common European network.This system not only provides job-seekers with joboffers, but also with other relevant information thatthey will need to work in another EU country. At thesame time it gives employers the chance to seek theskills they need Europe-wide.http://europa.eu.int/jobs/eures/

17. Access to public sector information goesbeyond mobility issues. It also has an impact onthe way citizens can take advantage of theinternal market. Lack of information onadministrative procedures or on prices, qualityand safety conditions of products is one of thebarriers that prevent consumers from buyinggoods and enjoying services from other MemberStates. It is, for example very difficult to obtaininformation on importing right-hand drivevehicles (or left-hand, as appropriate) from theBritish Isles to the Continent or vice-versa.7Another example is the field of taxation, wheretaxpayers find it enormously difficult to obtain fullinformation on international tax arrangements.8

18. At the Cardiff European Council, aprogramme was launched called Dialogue withCitizens and Business. This Communityprogramme is a follow-on to the Citizens Firstinitiative. It addresses citizens and businessalike in an effort to encourage greaterawareness of the opportunities offered by theSingle Market. A better access to public sectorinformation is extremely important in thisrespect.

Participation in the European integrationprocess19. A Citizens Europe will only come about ifcitizens are to participate effectively in thebuilding of the European Union. Suchparticipation implies that they are well informedon issues related to the functioning of the EUand its activities. Access to information at bothEuropean and national level can greatly facilitatethis.

7 Listening to Citizens; The difficulties that people face inexercising their rights within the Single European Market.8 Ibidem. This report contains more example where lack ofinformation makes life difficult for European citizens thatexercise their internal market rights.

4 In the last elections of the European Parliament thelack of information on new election rights ofEuropean citizens had a negative influence:participation of non-national voters in their MemberState of residence was relatively low and only onenon-national candidate was elected in her MemberState of residence.9

20. Indeed, an adequate access to informationof and on the European Union can largelybenefit the European integration process. Theconclusions of the Cardiff European Councilhave therefore once more stressed theimportance of the need to bring the EuropeanUnion closer to the citizens by making it moretransparent and closer to everyday lifethrough the EUs committment to allowing thegreatest possible access to information on itsactivities.10 This is a concern for the EU andthe Member States together since a significantpart of the information related to the EuropeanUnion activities is actually held at national level.It seems thus important that European citizenshave a right of access not only to documentsheld by the Institutions, but also to EU-relatedinformation, in the broadest sense, available inthe Member States.

21. To enhance the transparency of EU-actionfor European citizens, the Treaty of Amsterdamhas firmly anchored their right to accessdocuments of the European Parliament, Counciland Commission in the EC Treaty.11 Theprovisions are particularly important insupporting the democratic process and inincreasing the understanding of the Europeanintegration. They are an important step, giventhat a considerable number of the complaintslodged to the European Ombudsman deal withtransparency and the access to information

22. The EU institutions pursue an active policyin the field of dissemination of information onits functioning and the issues within its

9 See the Second report of the European Commission onCitizenship of the Union, COM/97/230 final.10 Conclusions of Cardiff Council, 15/16 June 199811 New article 191a of the EC Treaty provides that :1. Any citizen of the Union, and any natural or legal person

residing or having its registered office ina Member State,shall have a right of access to European Parliament,Council and Commissiondocuments, subject to theprinciples and the conditions to be defined in accordancewithparagraphs 2 and 3.

2. General principles and limits on grounds of public orprivate interest governing this right of access todocuments shall be determined by the Council, acting inaccordance with the procedure referred to in Article 189bwithin two years of the entry into force of the Treaty ofAmsterdam.

3. Each institution referred to above shall elaborate in its ownRules of Procedure specific provisions regarding accessto its documents."

Declaration no. 17 attached to the Maastricht Treaty hadalready prepared the field for this development.

responsibility. Annexe 2 gives an overview of theinitiatives in this field. The EUR-Lex website isone example.

EUR-Lex displays, for example, free of charge theOfficial Journal for a period of forty-five daysfollowing publication, the Treaties, the legislation inforce and the case-law. It is updated daily in 11languages with the latest editions of the OfficialJournal. These are available on the Internet a fewhours after the paper version is published.

http://europa.eu.int/eur-lex

23. In spite of these efforts many Europeancitizens would like to have more information onthe EU. There is obviously a growing interest forEU-issues that have an impact on citizens lives.

68% of the surveyed persons need or would like moreinformation on the European Union. Europeans wantto know in particular more on their rights as citizensof the Union (49%), on the Single currency (45%)and on employment (42%), issues that are allabsolute priorities for the European Union

Source : Euro barometer n49,September 1998.

24. Another aspect of a Citizens Europe is abetter access to information on other MemberStates. It will contribute to citizens knowledge ofother European countries, which in its turn can

Fig.1 :Desire to know more about the EU

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25

32

24

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12

24

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54

62

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44

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EU15

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% Real need to know more% Would like to know more% Happy with present knowledge

Source : Eurobarometer 49, 1998

5arouse a greater interest in the Europeanintegration process. To this end public sectorbodies in the different Member States couldmake information with an interest for non-nationals more accessible to them.

I.2 Public sector information: Opportunitiesfor economic growth and employment

Why is access to public sector informationimportant for businesses ?25. Access to public sector information in thedifferent Member States is a necessity to takeadvantage of the existing possibilities for alltypes of businesses operating in more thanone Member State.

26. The information relevant to business is inthe first place of an administrative nature. Atthe moment it is still hard to get hold of a fullpicture of the rights, duties and procedures thatallow a company to operate without difficulties inother European countries.

58% of companies think that it is likely that access toinformation would enable them to expand theiractivities within the European Union. For instance,66% of firms identified their need for preciseinformation about administrative procedures. 25% ofcompanies think that the persistence of obstacles totrade and business activities could be attributed to alack of information about EU rules.

Source : Single Market Scoreboard, October 1998

27. The lack of administrative informationparticularly harms the SMEs that do not havethe means to find pieces of information that areoften dispersed.

28. But also information of a non-administrative nature can be extremelyimportant for the decisions of firms. Statistical,financial and geographic information are someexamples. This information plays a key role forbusinesses in all sectors of activity in particularwhen defining business strategies, marketingdecisions, export or investment plans. Quick andeasy access to such information helpsbusinesses to make informed choices. A lack ofinformation may considerably delay decisions ontransborder operations.

29. The relevant business informationthroughout Europe as collected by theChambers of Commerce is for example notreadily available. An initiative at European levelhas been taken to improve the situation in thisfield (see the box below).

EBR II Project

The European Business Register project has beenestablished because the absence of a fully integratedinformation service on European Companies is apotential threat to the effective operation of theSingle European Market.

Aim of the project is to ensure that basic informationon all companies in Europe is available throughoutEurope without barriers due to differingtechnologies, languages, registration systems,networks etc

The EBR that is funded under the EUs TelematicsApplications Programme (TAP) has become fullyoperational in December 1998 and now allowselectronic access to business data of 10 EU MemberStates plus Norway. Http://www.ebr.org

30. Also statistical information on Europeanmarkets and economic trends is in many casesnot timely available. This problem is howeverrather linked to the collection of nationalstatistics (differing national methodologies,deadlines for submission to Eurostat, quality ofindicators, decrease burden for SMEs, ) thanto the issue of access per se.

31. The absence of accessible public sectorinformation may create a competitivedisadvantage for the foreign firms comparedwith local firms that can draw upon their ownexperience on the local situation. This is, forexample true for insurance services that largelydepend on specific local information on risks etc.

32. It also has a negative effect on companiesthat, by their nature, have a transnationalvocation. International transport companiesoffering their services throughout Europe are anexample of this. Accurate local information -geographic information, traffic information andinformation on the weather amongst others- , isimportant for their daily operations.

33. Both administrative and non-administrativeinformation are also relevant for publicprocurement12. Transparency of Governmentaction in this field is a prerequisite to theachievement of a real internal market. Access toinformation on the local situation is necessary tomake the rules work efficiently and to optimisefair chances for all firms involved. Since theinformation at stake is not always transparent,public procurement is often in practice still anational affair notwithstanding EU legislation.

34. Another example where the absence oftransparency of the information leads to

12 The Special sectorial report on public procurement,November 1997, illustrates the importance of access toinformation for this issue. See the report on EuropeanCommission, DG XV web site at the addresshttp://europa.eu.int/comm/dg15/en/publproc/

6negative results at European level, is patentinformation. The European Patent Officeestimates that every year more than 18 billionEuro is spent on research that has been donebefore. Better accessibility of information on thestate of the art of research, could decrease thisamount.

Esp@cenet

Together with the Member States of the EuropeanPatent Organisation and the European Commission,the European Patent Office has launched a newservice called esp@cenet, which is accessible via theInternet. The main aim of this new service is toprovide users with a readily accessible source of freepatent information (over 30 million patentdocuments). It also aims to improve awareness atnational and international level, in particular amongsmall and medium-sized enterprises, of the kind ofinformation that is publicly accessible.http://www.european-patent-office.org/

35. The conclusion that access to publicsector data is highly relevant for businessesthroughout Europe is backed by the recentReport Managing Change of the High levelGroup on economic and social implications ofindustrial change.13 It indicates as an immediatepriority to enhance competitiveness by fullyopening the European market intelecommunications and data services, and toincrease freedom of access to government andother state owned data.

Public sector information: A potential tofurther explore and exploit36. The public sector, by nature of its size andscope of activities, represents the biggestsingle information content resource for thecreation of value-added information content andservices. Studies have shown that the bulk ofcommercial information services in the EUinformation market consists of services in areaswhere the public sector holds very importantresources.

37. Figure 2 clearly shows that public sectorinformation is a key resource for a very largepart of information services being either thecore subject (government/political information,legal information) or an essential raw material(company profile, patent information, scientific,technical and medical STM- information, etc.).

13 Managing change, High level group on economic andsocial implications of industrial change, Final Report,November 1998. The Special European Council ofLuxembourg (21-22 November 1997) invited this Group toanalyse industrial changes in the EU and to look at ways ofanticipating and dealing with change and its economic andsocial effects.

38. Public sector information is therefore aprime information content, essential to theinformation industry and a key enabler forelectronic commerce applications14.

39. The information content industry is growingat an impressive rate and some four millionpeople are employed in the content sector inEurope15. Much of this growth will be withinSMEs trying to exploit the potential to manageand add-value to information. The emergenceand development of these highly dynamiccompanies need to be fostered in particular, asthey are essential for the creation of new jobsin the 21st century.40. The European information industry iscompeting in a global market. During thepreparatory process that has led to this GreenPaper, European information industryrepresentatives have strongly and repeatedlyexpressed their concerns about the competitivedisadvantage of European publishers vis--vistheir counterparts.41. Better possibilities for the exploitation ofpublic sector information could partlyredress this situation and would lead to newopportunities for job creation. In the US thefavourable conditions for this type of exploitationhas already boosted the information industries.

14 For a further analysis on recent trends and critical roles ofcontent and the content industry within the networkeconomy, see CONDRINET Study (CONtent and CommerceDRIven Strategies in Global NETworks), October 1998,commissioned by the European Commission and conductedby Gemini Consulting, at http://www2.echo.lu/condrinet/ 15 European Information Technology Observatory, 1998,Content data include media, publishing, marketing andadvertising sectors.

Other7%

Travel, tourism

1%

Gvt./political information

15%

Further business

8%

STM6%

Patent information

1%

Legal information

4%

Company profiles

24%

Finance34%

Fig.2 : Revenues of electronic information services in the European Economic Area by subject area

Source : MS Study of the markets for electronic information services in the EEA, 1994

(Total revenues in 1994 : 5517 MECU)

742. There are hardly any rules in Europe onconditions for exploitation of public sectorinformation by the private sector. Guidelinesfor the synergy of Public and Private Sectors inthe Information Market were published by theCommission in 1989. Similar guidelines wereproduced by the UK Department of Trade andIndustry in 1985. In 1994, a French PrimeMinisters circular was published and aMemorandum of Understanding was adopted bythe Dutch government in 1997.

43. Although these are good initiatives, there isno clear and consistent set of principlesthroughout Europe. This lack of clear andconsistent principles means that Europeanindustry finds itself in a competitivedisadvantage vis a vis its US competitors. Insome cases this has lead to leading Europeancompanies investing in products based on USpublic sector information.

The British/Dutch Reed Elsevier plc group, hasacquired the US based LEXIS-NEXIS company, aleading provider of online information services andmanagement tools for a variety of professionals (1.4billion documents in more than 8,692 databases, 1.5million subscribers, 1200 employees world wide).They are amongst others specialised in legalinformation.

44. Pilot projects within the European INFO2000programme16 have shown that private partnersare interested in cross-border collaborationwith public sector bodies to exploit publicsector information and that there is a realpotential to be further explored and exploitedat European level.

The EU potential as shown by INFO 2000 call forproposals

In 1998, in the framework of the INFO2000programme, the European Commission invitedproposals for shared-cost pilot, or exploratoryprojects. The objective of the Call was to make theinformation resources held by the public sector morereadily available for exploitation in Europeanmultimedia content services

A total of 141 proposals was received by the closingdate. The total cost of work proposed amounted to109.7 MECU, and the total EU contributionrequested came to 50.6 MECU. The over subscriptionof the Call was, therefore, in the order of 7, given theindicative budget resource of 7 MECU.

45. In some cases, the commercial reuse ofpublic sector information may however raisequestions as to the boundaries and limitationson the roles of the different actors. Onceprivate sector interests enter the market for

16 INFO2000 programme (Council decision of 20 May 1996,O.J. N L 129, 30.5.1996, p. 24)

public information the safeguarding of accessfor all citizens may become more difficult. At thesame time, if the public sector adds value to itsown information, launching commercialinformation products onto a hitherto privateinformation market, the issue of faircompetition may be raised.46. These issues and possible obstacles atEuropean level to the exploitation of publicsector information will be addressed in chapterIII.

8Chapter II : The Information Society and thepublic sector47. The discussion on public sector informationshould be seen in the context of the emergingInformation Society. The new Information andCommunication Technologies are quicklychanging the ways public sector bodies operate.which makes a timely debate on public sectorinformation all the more important.II.1 Electronic Government48. The emerging Information Society, largelydriven by an ever increasing and pervasive useof information and communication technologiesis more and more affecting the public sector.Administrations follow the example of the privatesector and benefit from the enormous potentialof these technologies to improve their efficiency.This development is often labelled ElectronicGovernment and covers both the internal andexternal application of Information andCommunication Technologies (ICT) in the publicsector.

49. The importance of this development isincreasingly acknowledged in many countriesaround the world. In Europe experiments arebeing conducted at all levels of government -local, regional, national and European - toimprove the functioning of public servicesconcerned and to extend their interaction withthe outside world.

50. Indeed, the use of Information andCommunication Technologies does not onlysmoothen public administration internaloperations, but also strongly supports thecommunication between differentadministrations as well as the interaction withcitizens and businesses. This is one of the keyelements of Electronic Government: it bringspublic sector bodies closer to citizens andbusinesses and leads to better public sectorservices. At EU level programs like IDA and theactions within Framework Programme V for R&Daddressing Administrations enhance theprogress in this field.

51. Electronic government services cangenerally be distinguished according to the threemain functions they serve.

Information services to retrieve sorted andclassified information on demand (e.g. WWWsites).

Communication services to interact withindividuals (private or corporate) or groups ofpeople (e.g. via e-mail or discussion fora).

Transaction services to acquire products orservices on line or to submit data (e.g.government forms, voting).

Table 1 gives an overview of possible servicesand their application areas.

Table 1

A typology of Electronic Government services

Information services Communication services Transaction services

Everyday life Information on work,housing, education, health,culture, transport,environment, etc.

Discussion for a dedicatedto questions of everydaylife ;

Jobs or housing bulletinboards

e.g. ticket reservation,course registration

Tele-administration Public service directory

Guide to administrativeprocedures

Public registers anddatabases

e-mail contact with publicservants

electronic submission offorms

Political participation Laws, parliamentarypapers, politicalprogrammes, consultationdocuments

Background information indecision making processes

Discussion for a dedicatedto political issues

e-mail contact withpoliticians

referenda

elections

opinion polls petitions

Source: Institute of Technology Assessment, Austrian Academy of Sciences and Centre for Social, Background Paper to theInformation Society, Bringing Administration Closer to the Citizens Conference, November 1998 (organised by the Centre for Social

Innovation on behalf of the Information Society Forum/Work Group 5/Public Administration).

952. Transaction services are generally seen asthe future of electronic government, since formshave a key role in all administrative processes.In a recent German Delphi study, transactionservices were regarded by the expertsinterviewed to become reality in the next tenyears. It is estimated that in the US already 40percent of all forms of the public administrationare available electronically. This way of dealingwith government can considerably lower theadministrative burden for citizens andbusinesses alike.

The TESS (Telematics for Social Security) project,funded under the IDA programme, aims atsimplifying and accelerating administrativeprocedures in order to ensure citizens access to theirrightful social security benefits. The objective is toreplace paper forms for information provision byelectronic exchange. The two major areas currentlyaddressed by TESS are old age pensions (to ensurethat migrant workers get the pensions due to them)and to facilitate reimbursement of sickness benefits inkind (in case the Member State where the benefit inkind was advanced is different to that where theperson is insured).

53. Reengineering public services may requiresubstantial investments by government bodiesat all levels as well as a change in culture.However the results are worth it. Electronicgovernment leads to a public service thatperforms better and is closer to the citizens.

54. The EU is itself involved in considerablereengineering efforts to benefit from thepossibilities offered by electronic government.Transactions with and information to citizens willhave an ever increasing electronic character.One example: before long the Commission willbe able to handle electronic project proposalswithin the Fifth Framework Programme forResearch and Development. Legal barriers atEU level have to be solved to turn thesetransactions into reality.

55. One aspect of Electronic Government that isoften forgotten is its potential impact on theinformation market. By applying newtechnologies and innovative concepts, publicauthorities at all levels of government can havea role as a driver of the Information Society.The Report on job opportunities in theInformation Society17 presented to the ViennaEuropean Council of December 1998 has oncemore stressed this role of governments. Theirexample as a leading edge customer willconvince citizens and businesses to adopt newtechnologies themselves and will invite the ICT-industries to explore new pathways.

17 Job opportunities in the Information Society: Exploitingthe potential of the information revolution COM (1998) 590final.

II.2 Electronic Government and public sectorinformation56. The use of new technologies canconsiderably increase the efficiency of thecollection of information. It gives public bodiesthe possibility to share available informationwhen this is in conformity with data protectionrules, rather than duplicating its collection fromcitizens and businesses. This can notablyreduce the administrative burden on citizensand business, and in particular SMEs.

57. At the same time, sharing information leadsto better informed public bodies, that haveaccess to all data relevant for their functioning.In the EU context, more and more information isexchanged between Member States in areaslike customs, agriculture, environment, health,statistics, etc.

58. The electronic revolution also has a majorimpact on the accessibility and disseminationof information. The Internet has a hugepotential as a platform where citizens andbusiness can easily find public sectorinformation. All Member States in the EU aretaking advantage of this potential.

59. As part of their dissemination policies, theEU-institutions increasingly use the possibilitiesoffered by the Internet. They maintain a family ofweb sites offering a large amount of informationon the EU and its activities.

60. More and more people find their way tothese web sites, which is shown by the followingexample: In September 1998 almost 7 million ofCommission documents were consultedelectronically, more than double the number ofconsultations of September 1997.

61. The new technologies will also allow theprovision of information and services in a moreintegrated form. Such integration is especiallydesirable where a specific information neednecessitates contacts with a number of differentadministrative bodies. This objective goes underthe name of one stop service or one stopshopping. The europa.eu.int website forms asingle access point for information on all EUinstitutions.

62. The digitisation of public sector informationfacilitates not only access, but also possibilitiesfor its exploitation. A better access toinformation together with its digital format makesit easier to combine data from different sources.This will allow for the creation of new informationproducts that have public sector information astheir raw material.

63. The digitisation process makes thedifferences that exist between public sectorbodies in Europe in terms of access andexploitation of public sector information morevisible and more relevant. These differences

10

create barriers to the full use of the opportunitiesoffered by the new technologies and make adebate on public sector information at Europeanlevel all the more necessary.

II.3 Electronic access for all?64. Our societies are moving towards a situationwhere everyone has access to the newelectronic tools. The penetration of Internet ishappening at a much faster pace than thepenetration of other information tools like thetelephone or television earlier this century.Nevertheless it will take time until ageneralised access is realised.65. Dissemination of public sector informationon the Internet does not automatically imply thatall citizens have an equal access to it.Substantial differences exist in access to thetools of the Information Society(computers/modems etc.) and the ability to usethem. In this context the Report on jobopportunities in the Information Society18stresses that the access to such tools and theskills to use them are prerequisites for jobcreation and need to be prioritised.

66. This observation points to the need ofinvesting in infrastructures that provideaccess for all to the electronic networks.Libraries seem to be particularly fit to fulfil thispublic role, but other possibilities should also beexplored.

Infocid

In Portugal a network of Cyber-kiosks has beeninstalled throughout the country to give citizensaccess to the Internet and in particular to informationon the public sector. The global, integratedmultimedia Infocid system, gives access togovernment information on a wide range of subjectslike employment and training, education, the Lawand Courts, housing etc.

http://www.infocid.pt/

67. In addition this point stresses the importanceof investment in Information andCommunication Technology-skills. Lackinginvestment may lead to a society fundamentallysplit between people that can and people thatcannot use the new information tools. Severalprojects at European level already address thisproblem, tackling it at the base.

18 Job opportunities in the Information Society: Exploitingthe potential of the information revolution COM (1998) 590final.

EUN - The European Schoolnet

The aim of the project, funded by the Task Force"Educational Multimedia" and coordinated by theSOCRATES programme, is to establish a Europeanschool information network the EuropeanSchoolnet as a multimedia and communicationplatform at the services to schools in Europe and as aframework for collaboration at a European levelamong national educational authorities, universitiesand industry to develop ICT in schools as regardscontent, pedagogical approaches and technology.

http://www.eun.org/

68. Improved skills will in the long run also leadto a better use of public sector information.More informed, computer-literate citizens andbusinesses will ask for more and betterinformation and will act as an incentive for thepublic sector to provide better informationservices and for the information industry tocreate more value-added information productsand services.

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Chapter III : Issues linked to access andexploitation of public sector information69. The access to public sector information aswell as the commercial exploitation of thisinformation entail a whole range of issues thatneed careful consideration. They vary from thedefinition of public sector information to issuesrelated to privacy and liability.

70. The questions that follow each section arefor guidance only. Readers are invited to take anopen and innovative approach, considering allareas discussed here and other issues whichthey consider to be of relevance.

III.1 Definitions

Public sector information71. A definition of public sector information isimportant because it will help to determine thescope of the replies to this Green Paper and apossible follow-up.

72. The definition of public sector varies fromone Member State to another. In the laws anddiscussions on access to public sectorinformation three possible approaches appear toemerge:

The functional approach, in which thepublic sector includes those bodies withstate authority or public service tasks19.

The legalist/institutional approach: onlybodies that are explicitly listed in therelevant law(s) have a public sectorcharacter.

The financial approach, whereby the publicsector includes all bodies mainly financed bypublic funds (i.e. not operating under thenormal rules of the market).

Whatever methodological approach will bechosen, the information of public bodies atdifferent levels of government, central, regionaland local, shall be taken into consideration.

In all cases, state owned companies operatingunder market conditions and subject to private

19 Directive 90/313/EEC on the freedom of access toenvironment information excludes from the definition ofpublic sector, bodies acting in a judicial or legislativecapacity. It provides that national, regional or local publicauthorities having responsibilities and holding informationrelating to the environment should place this information atthe disposal of any natural or legal person requesting it,regardless of whether that person has a legal interest. As itspurpose is to promote the protection of the environment,commercial issues are not addressed. Specific provisions ofthis Directive are referred to in appropriate sections ofChapter II. Any actions resulting from this Green Paper willnot prejudice access to information concerning theenvironment as provided for by this Directive, which willpossibly be reviewed in 1999, nor the relevant acquiscommunautaire.

and commercial laws are not meant to becovered by either of these definitions.

Types of public sector information73. Public sector information may be classifiedalong different lines. A first possible distinction isthe one between administrative and non-administrative information. The first categoryrelates to the function of Government and theadministration itself and the second category toinformation on the outside world that is gatheredduring the execution of public tasks (GeographicInformation, information on businesses, on R&Detc.).

74. Within administrative information a furtherdistinction can be made between informationthat is fundamental for the functioning ofdemocracy (like laws, court cases,Parliamentary information) and information thatdoes not have such a fundamental character.75. Another possible distinction draws a linebetween information that is relevant for ageneral public (like Parliamentary information)or for a very limited set of persons that have adirect interest.76. From a market perspective, information canbe divided according to its (potential) economicvalue. It should be noted that bothadministrative and non-administrativeinformation can have a considerable marketvalue.

77. The above mentioned distinctions may haveconsequences for the way the different types ofinformation are treated: They can have aconsiderable bearing on issues like pricing andcopyright and touch upon delicate issues likedata protection.

Question 1 : Which definition of public sector is the mostappropriate in your view?

What categories of public sector informationshould be used in the debate?

III.2 Conditions for access to public sectorinformation78. The existence of an access right does notmean automatically unlimited and unconditionalaccess to public sector information. In thisregard different Member States and the EUapply different rules and have different practices.

79. The different conditions for access raise anumber of questions that are relevant for bothcitizens and for the competitiveness ofbusinesses. Views related to both perspectivesare welcome.

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Existence of an interest80. The large majority of national laws do notrequire a person or company need to have aparticular interest as a condition for access topublic sector information. However, since thismay be the case in certain circumstances, theissue merits discussion.

Exemptions to the right of access81. All national regulatory frameworks providefor exemptions to the right of access. Suchexemptions may roughly be distinguished in fourcategories:

exemptions in the interest of the state forexample relating to national security, publicorder, economic interests, international relations,legislative procedures, etc. ; these are mostly ofexclusive Member State competence.

exemptions in the interest of third parties, forexample relating to privacy, intellectual property,commercial secrets, judicial procedures, etc.

exemptions to protect the decision makingprocess, for example, preliminary or internaluse of information etc.

exemptions to avoid unreasonable costs orworkload in the administrations concerned, forexample information already published orexcessive requests.

Directive 90/313/EEC provides a list of possibleexemptions which cover all of the above areasof concern.20

82. Exemptions and their interpretation differ tosome extent between Member States. Somecommentators consider that this may interferewith the ability of companies and citizens toaccess the information which they need on apan-European basis.

Time, quantity, format83. The emergence of new technologies andfaster networks makes issues of time, quantityand format of information less relevant. Ifinformation is available over electronic networksinstantaneously, citizens can download whatthey need and when and where they need it.

84. However, as not all public sector informationwill be available in electronic format in theforeseeable future, the question remains of howquickly the public authorities should react torequests and how much information they shouldprovide. These issues are related to the need toavoid unreasonable requests and excessiveworkload.

20 See footnote 19, p 11

Time

85. National access laws vary as to thedeadlines set for the public sector to respond toan access request. The French law gives a 2month deadline, while the Swedish lawstipulates a prompt response. In some cases,there is no reference to time limits. Directive90/313/EEC gives a two month time limit. Quantity and Format

86. The question of whether there should belimits to the quantity of information requested ismore complex. In principle, some quantitylimitations may be imposed if information inmanual format requires an excessive effort toassemble. The need to ensure low cost accessfor citizens to information needs to be balancedagainst the need to avoid excessive burdens onthe public services. In cases where public sectorinformation is available and can be accessed inelectronic format, quantity limitations are moredifficult to justify.

87. In the execution of its primary tasks, thepublic sector produces a vast amount of rawdata. The format of this public sector informationmay often be unattractive and difficult to access.Having taken this issue into account, manypublic sector bodies are engaged in tailoring rawdata to customer needs.

88. This also draws the attention to anotherinteresting issue: the right of citizens to haveaccess to the raw data and data at intermediatelevels and not just to the data in their final,elaborated form.

Question 2 :Do different conditions for access to publicsector information in the Member States createbarriers at European level?

If so, what elements are concerned: requirementof an interest, exemptions, time, format,quantity?

What solutions can be envisaged?

III.3 Practical tools for facilitating access89. Citizens and businesses alike can be seenas the clients of the information services thatare offered by the public sector. The concept ofclient implies that the needs of citizens andbusinesses are being taken into account whenthe services are conceived and that user-friendly search mechanisms are put in place.90. The data sets available in the public sectorare numerous.

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A recent estimate of the number of public databasesin the Netherlands alone came up with a figure ofsome 36.000 21

To help the information clients in finding theirway in this mass of data it may be necessary toestablish meta-data and directories. This leadsto the following question:

Question 3 :Could the establishment of European meta-data(information on the information that is available)help the European citizens and businesses infinding their way in the public sector informationthroughout Europe?

If so, how could this best be realised?

What categories of content should directories ofpublic sector information resources contain?

III.4 Pricing issues91. Pricing as well as pricing models varyenormously in different Member States and indifferent public sector bodies of the same

Member-State. As an example, figure 3 showsthe wide range of prices Dun&Bradstreet, abusiness information provider, must pay whenaccessing companies registered data andfinancial statements throughout Europe.

21 BDO Consultants, Electronische bestanden van hetbestuur, 1998

Pricing Models

The 1994 French circular distinguishes betweeninformation collection and production costs (whichare not charged for) and other costs, such asprinting, updating, data retrieval and transmission(which can be charged for). Furthermore itdistinguishes between types of information and typesof use.

The UK guidelines 1985 DTI guidelines favour amarket approach: "Where an established marketexists for Government-held tradable informationprovided by them already, Departments shouldcharge a reasonable market price. In the case oftradable information which has not previously beenexploited, contracts may initially be on the basis ofcharging only for costs incurred over and abovethose that would be incurred normally in handlingthe data or information for their own purpose".

The 1989 European Commission SynergyGuidelines favour a distribution cost approach:"Pricing policies may vary depending on the natureof the information; A price should be establishedwhich reflects the costs of preparing and passing it tothe private sector, but which does not necessarilyinclude the full cost of routine administration. Theprice may be reduced if provision of the resultinginformation service is deemed to be necessary in thepublic interest".

The US law allows charging for search, duplicationand review costs but not for the value added by thepublic sector to the raw data. The US public sectorshould see the adding of value only as a tool toincrease efficiency, not as a means for profit making.

92. In the long run, the current trend to makepublic sector information increasingly availablefree of charge on the Internet may have aneffect of prices and pricing models.

93. Studies and discussions have shown thatthe dual purpose of a public sector informationpolicy - access and exploitation - calls for apricing policy that should take into account anumber of interests:

affordable access for all

exploitation potential

fair competition (treated in the nextparagraph)

0 2 4 6 8 10

E

NL

I

P

Dk

A

D

F

S

UK

EURO

Registered data Financial Statements

Fig.3 : Unit Price for information on business indifferent countries

(Source : Dun & Bradstreet Europe, 1998

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Figure 4: People interested in consulting from home, via a computer, local town or council services in order to get

documents

0

10

20

30

40

50

60

70

B DK D GR E F IRL I L NL A P FIN S UK EU15

%

Interested Willing to pay

Source : Eurobarometer 47

94. Pricing conditions are in the first placeimportant in the discussion on access. Publicinformation is produced at the expense oftaxpayers. The question may therefore be raisedwhether public organisations have a right tocharge for the provision of information. It may beargued, however, that it is usually a small sectionof the public who wish to use a particular publicsector information product and that they shouldnot be subsidised by the rest of the population. Infact, people are willing in certain circumstancesto pay for the (information) services offered.Figure 4 clearly shows this.

95. But pricing should be such that it does notpreclude the access for all. In this respectmention should be made of the French initiativeto identify categories of public sector informationconsidered to be essential in view of theexercise of democratic rights by citizens. Inprinciple, such public sector information isprovided for free.

96. At the exploitation side, it is important thatefforts made by the public sector to renderinformation accessible for commercialexploitation are recognised and rewarded. At thesame time, if the private sector is to developcompetitive products from public sectorinformation, the raw materials must be availableto them at a reasonable price.

97. Pricing is therefore a crucial issue for theexploitation of public sector information by thecontent industries. It largely determines whetherthey will find an interest in investing in valueadded products and services based on publicsector information. American companies benefitfrom the fact that they can obtain US publicsector information for free.

An American software firm is about to release abusiness mapping software product allowing users tofind and illustrate points on the map, integrate mapsin their documents and identify the trends of theirbusiness on the map. The objective is to make it easyfor business users in organizations of any size to usemaps to make better-informed business decisions.Over 15 million addressed street-level segments areincluded for all US and worldwide country-levelboundaries. The estimated retail price of the productis $109.

As an element of comparison, a German mapinfocompany is offering geodata for one German stateunit only for a total of 9.728 DM + VAT 16%.

A UK based environmental pressure group hascomplained after the Ordnance Survey, Britainsnational mapping agency, tried to charge theorganisation more than 365.000 for digital mappingbase-data of the country.

Question 4:What impact do different pricing policies have onthe access to and exploitation of public sectorinformation?

Does this create differences in opportunities forcitizens and businesses at European level?

III.5 Competition98. Public sector bodies have cost structureswhich may differ from those of privatebusinesses. In certain circumstances, it ispossible that they offer products at less than themarket price, or cross-subsidise other areas oftheir operations through the sale of information.

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99. Fair competition may thus be adverselyaffected once public sector organisations offeradded-value information products on the market.This may also be the case when exploitationrights or exclusive contracts are ceded to semi-private or private sector bodies. Unfaircompetition situations may also result frominformation being released at different speeds todifferent parties.

National legislation

100. All Member States enforce some generalcompetition rules. Some legislation specificallydeals with competition issues in respect ofcommercialisation of public sector information.The UK guidelines state that governmentdepartments should not aim to compete with theprivate sector. According to French rules a publicbody should not directly intervene in the marketand may only provide value added informationservices if this is in line with their legal mission.Divergent application of competition rules indifferent Members States may create marketdistortions.

EU competition rules

101. EU competition rules are determined byarticles 85-94 of the EC Treaty. Severalcompetition issues in this field are interrelated:

State aid 22: market distortion through publicsubsidies should be avoided

Abuse of dominant position 23: access to datanot available elsewhere should be underreasonable conditions, on a cost-orientedbasis (essential facility doctrine)

Agreements between companies 24;

Monopolies 25.

102. In the context of the State aid rules,public information providers may be, undercertain circumstances, in competition with theprivate sector. Public financing could thenconstitute a state aid26 that could benefit fromcertain derogations27. Article 6 of the EC Treatywhich prohibits discrimination on grounds of

22 article 9223 article 8624 article 8525 article 9026 within the meaning of Article 92(1)27 not only under Articles 92(2) and 92(3) (categoriesof aid that are or may be considered compatible with thecommon market), but also under Article 90(2) if theundertaking is entrusted with a service of general economicinterest. In the latter case, all of the conditions of Article 90(2)would have to be fulfilled : the undertaking must be entrustedwith a service of general economic interest ; the amount ofthe aid must not exceed the net cost of ensuring the serviceof general economic interest ; and the development of trademust not be affected to such an extent as would be contraryto the interests of the Community.

nationality is also relevant. Furthermore, the1989 Synergy guidelines published by theCommission make reference to competitionrules.

103. For competition policy purposes, adistinction is often drawn between information forwhich only one source exists, which mustgenerally be made available at reasonableconditions, and information which is availablefrom different sources (diversity principle), forwhich market prices may apply.

104. Competition is also an essential principleof public procurement. It applies both topublishing contracts (where the public institutionpays for publication or subsidises it) and todistribution contracts (in those cases where thereare limitations to the number of distributors, inorder to reach certain targets, e.g. geographicalcoverage).

105. New technologies change fixed andvariable costs, new national and multinationalplayers appear on the market which createsopportunities to reduce prices or to increase thedistributions targets. This may require changes inprocurement policies and in tendering terms.

Question 5 :To what extent and under what conditions, couldactivities of public sector bodies on theinformation market create unfair competition atEuropean level?

III.6 Copyright issues106. The Bern Convention (Art. 2 (4)) leavesMember States the freedom to determine theprotection to be granted to official texts of alegislative, administrative or legal nature, andtheir official translations.

107. The vast majority of Member States haveused this provision to exclude these texts fromany copyright protection. As to information of adifferent nature produced by the public sector,most Member States have extended the previousexclusion also to this information material.However, the extent to which copyright is grantedto these materials does not limit in itself accessby the public to the information.

108. The public sector has two main reasonsto protect its information. In the first place it maybe a source of income. This may pose howeverquestions in the field of competition. It maycreate market distortions between companies inthe different Member States that want to reusethe information.

109. Another reason for public sector bodiesprotecting their information could be the wish to

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maintain the integrity of the content. This isrelevant in the perspective of liability questions

Question 6 :Do different copyright regimes within Europerepresent barriers for the exploitation of publicsector information?

III.7 Privacy issues110. Part of the commercially interestinginformation held by the public sector is of apersonal nature, i.e. relates to or allows theidentification of individual persons. This is forexample the case with respect to population,company, vehicle or credit registers. It alsoapplies to information on medical, employment orsocial welfare data. Access to such informationmay be of use to private industry for marketing,research or other purposes. In such cases theright to information needs to be balanced with theindividuals right to privacy. All national accesslaws show awareness of the need for such abalance.

111. On 24 October 1995 Directive95/46/EC28 was adopted on the protection ofindividuals with regard to the processing ofpersonal data and on the free movement of suchdata. This Directive establishes binding rules forboth the public and the private sectors andachieves the necessary balance between theprinciple of access to public sector informationand the protection of personal data. It must befully observed in cases of personal data held bythe public sector.

112. It is up to the public bodies responsible toapply the agreed balances between the need foropen access for commercial or other purposeson one hand and the right to privacy on the other,taking into account the principles established bythe EC Directive, in particular the principle ofpurpose limitation. In addition, nationalsupervisory authorities have an important roleand courts are expected to decide in cases ofdispute.

113. In the specific case of statistical data, thewell-established statistical confidentiality principlereinforces the data protection level. Statisticalconfidentiality prevents not only access to anyother private users but also the transmission ofconfidential data to administrative bodies otherthan statistical offices.

114. The emergence of the Informationsociety could pose new risks for the privacy ofthe individual if public registers becomeaccessible in electronic format (in particular on-line and on the Internet) and in large quantities.

28 O.J. N L281, 23.11.1995, pp. 31-50

Question 7 :Do privacy considerations deserve specificattention in relation to the exploitation of publicsector information?

In what way could commercial interests justifyaccess to publicly held personal data?

III.8 Liability issues115. Clarity as to the liability issues may havea positive impact on access to and theexploitation of public sector information. In fact,liability may be a reason for the public sector tooperate a prudent information policy. If the publicbody provides information to a requestor directlyit could, in principle, be liable (in accordance withnational liability laws) for any damages caused tothe citizen concerned.

116. The issue becomes more complex whenmore than two parties (public body, requester)are involved in the processing and disseminationof information. This is the case, for example,when the public sector has ceded the informationto a private company. In that case, public bodiescould still be liable for the information provided,unless they have limited this liability by contract.

117. The more actors are involved, the moredifficult it becomes, in cases of conflict, to identifythe one who has defaulted or acted unlawfully.Some commentators believe that coordinatedEuropean approaches to this issue areparticularly important in view of the difficulty ofestablishing which national law applies in casesinvolving several countries29.

Question 8 :To what extent may the different Member Statesliability regimes represent an obstacle to accessor exploitation of public sector information?

III.9 EU information118. As indicated in paragraph I.1 and inannexe 2 of this Green Paper, the EU isdeveloping policies to improve the access to itsinformation and the dissemination of thisinformation. All EU institutions maintain forexample a family of WWW sites accessible 29 The proposal for a directive on certain legal aspects ofelectronic commerce in the Internal market submitted by theCommission on 18 November 1998 recognises the need toclarify the responsibility of on-line service providers fortransmitting and storing third party information (i.e. whenservice providers act as intermediaries) in the context ofcommercial communications. To eliminate the existing legaluncertainty and to bring coherence to the differentapproaches that are emerging at Member State level, theproposal establishes a mere conduit exemption and limitsservice providers liability for other intermediary activities.

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through one single gateway (http://europa.eu.int)and offering a large amount of information.

119. It would help these policies if, in reactionto this paper, comments were received on theactions in this field and the way they areperceived. This leads up to the followingquestion.

Question 9 :To what extent are the policies pursued by theEU institutions in the field of access anddissemination of information adequate?

In what way can they further be improved?

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Concluding remarks120. The lack of transparency of public sectorinformation throughout Europe forms asubstantial barrier for citizens and business alikethat want to exercise the rights granted by the ECTreaty and benefit of the advantages of theinternal market.

121. At the same time the Europeaninformation industry is faced with a plethora ofdifferent laws and practices which theCommission believes may be preventing themfrom fully exploiting Europes informationpotential.

122. Subject to the responses to this GreenPaper and, in particular, comments on theregulatory or other barriers and obstacles whichmay hinder the possibilities for access andexploitation of public sector information,consideration can be given to what, if any,response may be required at European level.

123. Such response could for exampleaddress:

Legislation (e.g. need for recommendations,guidelines or binding measures).

Information exchange throughout Europe,allowing public bodies to learn from eachothers experiences.

Awareness raising at all levels (citizens,business and administrations) concerning theexisting information sources.

Demonstration and pilot projects allowingthe spread of technologies supporting newinformation services and experiments withnew models of public/private partnerships.

Education and Training initiativesenhancing the information managementcapacities of administrations and individuals.

124. Comments are invited on these possiblefields for action or concerning any other type ofmeasures felt to be appropriate.

Question 10 :Which actions should be given priority attentionat European level?

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List of QuestionsThe following list recapitulates the questions raised in Chapter III.

1 Which definition of public sector is the most appropriate in your view? What categories of public sector information should be used in the debate?

2 Do different conditions for access to public sector information in the Member States createbarriers at European level?

If so, what elements are concerned: requirement of an interest, exemptions, time, format,quantity?

What solutions can be envisaged?

3 Could the establishment of European meta-data (information on the information that isavailable) help the European citizens and businesses in finding their way in the public sectorinformation throughout Europe?

If so, how could this best be realised?

What categories of content should directories of public sector information resources contain?

4 What bearing do different pricing policies have on the access to and exploitation of publicinformation?

Does this create differences in opportunities for citizens and businesses at European level?

5 To what extent and under what conditions, could activities of public sector bodies on theinformation market create unfair competition at European level?

6 Do different copyright regimes within Europe represent barriers for exploitation of publicsector information?

7 Do privacy considerations deserve specific attention in relation to the exploitation of publicsector information?

In what way could commercial interests justify access to publicly held personal data?

8 To what extent may the different Member States liability regimes represent an obstacle toaccess or exploitation of public sector information?

9 To what extent are the policies pursued by the EU institutions in the field of access anddissemination of information adequate?

In what way can they further be improved?

10 Which actions should be given priority attention at European level?

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Annexe 1: Current situation in Member States regarding legislation and policy on access topublic sector information.

Austria

There is constitutional law (1987/285) of15.5.1987, which stipulates a general rightof access. This constitutes a minimumframework: All officials at the federal,regional or local level entrusted withadministrative duties as well as the officialsof other public law corporate bodies shouldimpart information about matters pertainingto their sphere of competence in so far asthis does not conflict with a legal obligationto maintain secrecy. Citizens access isusually free but in some cases a charge ismade covering, inter alia, the reproductionand dissemination costs. Each departmentdefines its commercialisation policy underthe control of the Minister responsible, on acase-by-case basis. There are some casesof public and private sector co-operation, inthe telecoms, debt recovery, judicial andgovernment information sectors, forexample.

Belgium

There are laws, at the federal (11.4.1994)and regional level (Flanders 23.10.1991 and13.6.1996), on civil transparency, providinga general right of access to documents heldby a public authority. These laws, however,provide that administrative documentsthereby obtained may not be furtherdistributed or used for commercial ends.There is no general law oncommercialisation of public sectorinformation. In the context of the civiltransparency law, access is given free ofcharge or at marginal cost.Commercialisation policies are pursued bysome government departments on the basisof case-by-case contract relationships.Public and private co-operations have beenestablished, for example in the vehicleregistration, statistics and geographicinformation sector. In the latter sector,however, there have also been cases oflitigation involving the relevant state body.

As regards active dissemination, Postbus3000 distributes information of the Federalgovernment by means of television andradio and by means of advertising innewspapers and magazines. These forms ofcommunication contain pointers tobrochures freely available to the public. Thebrochures hold contact information andadditional information on the subjects andthe services involved. Furthermore, citizenscan obtain additional information via

Postbus 3000. Postbus 3000 is a serviceprovided by the Federal Information Service.

As of 24 March 1995, the Federal governmentmaintains an extensive Internet website in fourlanguages (Dutch, French, English andGerman) at http://belgium.fgov.be. This'umbrella website' contains pointers to allFederal departments. A wide variety ofinformation is available, such as: generalinformation on Belgium, decisions of theCouncil of Ministers, useful addresses ofgovernmental organisations and initiativesregarding public sector information. TheCommunities and Regions also maintain theirown websites. These are accessible throughthe Federal website by means of hyperlinks.

At present the establishment of a call center isbeing prepared (at Federal level), enablingcitizens to submit questions to the government.The Flemish Community is undertakingcomparable actions; In the Walloon Regionsuch centre is already in its operational phase.

Under a recommendation of the Council ofEurope, As of 1997 the Council of State isunder the legal obligation to publish most of itsdecisions, which are made available by meansof CD-ROM and Internet."

Denmark

A law is underway to replace two existingfreedom of information laws which give ageneral right of access to governmentdocuments. The Bill covers all the society andis close to the EC 95/46 Directive statements.Pilots are planned concerning open publicmailing lists ; a standard about electronicpublishing is published, and all publicpublications will gradually be electronicallyaccessible. All public institutions have e-mailand are represented through the Internet. Stillmore public electronic based self-servicepossibilities are present. Access to electroniclegal data and information is freely available.

As regards citizens access to print documents,the principle is that citizens should only pay forthe cost of access which is stipulated to be 10DKR for the first page and 1 DKR for eachadditional page. There is no specific law oncommercialisation of public sector informationalthough the Info-Society 2000 Programmemakes some reference. There has also been a1992 Ministry of Finance Budget Guidecovering the public sector in general and setting"long term average costs" and "fair competition"principles. Since the Danish market forelectronic information services is still relativelysmall, most of the public sector information

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dissemination, both in print and electronicform, is carried out by the public sector.Some commercial interest has beenexpressed in the fields of population,company and land registers, law andstatistics in which there have been cases ofpublic and private sector co-operation andcompetition.

A new pricing model concerning sale ofpublic data is now worked into the BudgetGuide covering the public sector anddecision has been taken on principles aboutquality of and access to public data and theongoing development activity. The tendencyis that new steps to create the openinformation society are quickly done.

Finland

There is a Publicity of Official DocumentsAct (83/9.2.1951), providing a generalaccess right to any document prepared andissued by a public authority, as well as anydocument sent or given to a public authorityand in its possession. In 1987 this right wasextended to documents produced "by theuse of punch marks, magnetisation or othercomparable means and intended to be read,listened to or otherwise understood bymeans of technical devices". The law iscurrently being revised and modernised. Thenew law will promote the use of authoritiesinformation matter outside theadministration.

The Finnish market and commercialisationsituation is otherwise similar to that inDenmark. Private sector interest is stillrather small and the main disseminationinitiatives are still within the public sector.

A 1995 report "Developing a FinnishInformation Society" makes a brief referenceto encouraging commercial reuse by theprivate sector. Pricing policies wereestablished by the 1992 Act on ChargingCriteria for the State which distinguishesthree types of government goods andservices: a) those in the public interest,provided free of charge b) those offered bymonopoly bodies, or following a legalrequirement, provided at cost price and c)others, provided at commercial price.

France

There is a general law on access toadministrative documents (part of a widerlaw concerning relations between theadministrations and the public, 78-753/17.7.1978, amended in 1979), whichexcludes the possibility of reproducing,disseminating or commercially exploiting thedocuments concerned. Access "in situ" isfree of charge, while copying costs are

charged to the requester. There is also a PrimeMinister's circular of 14.2.1994 concerning thedissemination of public data which establishessome policy principles for the commercialisationof such data, distinguishing between raw data(being freely accessible) and value-added data(in certain cases protected by copyright) anddiscussing the information dissemination rolesof the public and the private sectors includingcompetition and pricing issues.

There is a large private sector participation inthe public sector information market. This hasbeen more successful in some areas(geographic, company information) than inothers (agricultural, judicial information). Thereis a policy of providing public concessions toprivate sector companies which, somecommentators feel raises competition issues.

In the Government action programmePreparing Frances entry into the informationsociety published on 16 January 1998, theFrench Government announced that essentialpublic data will be freely available on theInternet. This initiative recognises that thedevelopment of the networks has profoundlychanged the traditional distinction betweenaccess to public information and itsdissemination. Furthermore it stresses the factthat the ability to access public sectorinformation sources is vital to the developmentof the information market and thus theinformation industry.

Germany

Germany has neither a general access law nora law on commercialisation of public sectorinformation. A large number of sectoral lawsoffer access to specific types of information(e.g. administrative complaints, environmentalinformation). Some Lnder have constitutionalprovisions and are in the process of preparinggeneral access laws. Commercialisationpractices have been developed by differentauthorities separately. In some cases (e.g.financial-commercial statistics) there areexamples of successful public/private sector co-operation while in others (e.g. companyinformation) there have been difficulties. Pricingpolicies also differ widely, depending on thelegal basis of the request, the public sectoragency in question and the intended use of theinformation. This variety of policies isaccentuated by the federal structure of thestate.

Greece

Greece has a law providing general access(1599/1986), which does not allow for thecommercial exploitation of the public sectordocuments concerned. Although there is nogeneral law or policy concerning commercialdissemination of public sector information, the

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Ministry of the Interior and PublicAdministration is working on its legalframework. The electronic informationmarket is very small and the marketpotential of public sector information has notyet been established (apart from a fewexceptions in the cultural, tourism,agriculture and legal fields). Severalgovernment bodies are already in a processof developing information systems to maketheir content accessible both to businessand citizens.

Ireland

The Freedom of Information Act, 1997, wasthe first significant piece of legislation thatobliged government Departments andOffices to publish details of their informationholdings. This Act asserts the right ofmembers of the public to obtain access toofficial information to the greatest extentpossible consistent with the public interestand the right to privacy.

Under the Act, public bodies are required topublish certain information about themselvesand also to make available details of theirinternal rules, procedures, interpretations,etc. used in decision making. ManyDepartments and Offices publish thisinformation on the Internet. The centralpurpose of this information is to assist thepublic in ascertaining the information held byeach organisation and how to access it.

In respect of non-personal information, feesmay be charged in respect of the time spentin efficiently locating and retrieving records,based on a standard hourly rates.Photocopying charges may also apply. Inrespect of personal records, copyingcharges only will apply, save where a largenumber of records are involved. No chargesmay apply in respect of the time spent bypublic bodies in considering requests.

In addition, most government Departmentsand Offices produce publications relating totheir interests. These are generally issuedfree where it is desirable for purposes ofpublic policy, or are priced on a costrecovery basis.

While there is no general law or policy onthe commercialisation of public sectorinformation some organisations (e.g. LandRegistry, Ordnance Survey, etc.) marketinformation. Where this happens pricingpolicy is, in general, market-led with thecommercial rate being charged.Commercialisation and public/private sectorco-operation occur mainly in the field of lawand statistics.

The 1996 report Information Society Ireland Strategy for Action envisages free or low costaccess to public databases and informationservices, coupled with the use of informationand communications technologies in the publicsector to deliver citizen-centred applications tothe public. All newly published governmentinformation is to be made availableelectronically and on paper at the same timefrom a specified data ; low cost (lo-call)telephony access to government Departmentsand Offices has already been introduced andwill be enhanced with self-service over theInternet, fax on demand, etc.; government websites will be developed with a view to increasinginteractivity and potential for service-delivery.

Italy

There is a general access law (241/7.8.1990),although in many cases access depends on theexistence of a legal interest. There is nogeneral law or policy concerningcommercialisation of public sector information.Access based on the aforementioned law isfree of charge. Pricing policies for commercialpurposes differ in the various public sectorbodies. Examples of public/private co-operationexist in areas like company information andstatistics. In some cases there have beencomplaints relating to competition rules.

Luxembourg

There is neither a general access law nor anygeneral rulings regarding commercialexploitation of public sector information,although a working group has been set up toexamine this issue. In practice, when available,public sector information is either given free ofcharge or at distribution cost price. There are,as yet, no examples of public/private sector co-operation. The tiny size of the market probablydiscourages strictly national initiatives.

Netherlands

There is a Government Information Act(entered into force in 1980, amended in 1992)which compels administrative authorities todisseminate government information actively,and to provide information upon request. Thereare, however, exemptions from and restrictionsto these obligations. These exemptions andrestrictions are comparable to those underother general access laws (e.g. exemptions inthe interests of the state, third parties and theprotection of the decision making process).

The Ministry of the Interior has a co-ordinatingrole regarding public sector information policy.As yet, there is no general policy on theexploitation or commercial reuse of publicsector information. Consequently,administrative authorities set out their own

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policies. However, steps have been takentowards the development of a generalpolicy.

As a first step the Cabinet issued amemorandum Towards the accessibility ofgovernment information, Policy frameworkfor increasing the accessibility ofgovernment information through informationand communication technology in June1997. The key topic in the memorandum iswhich public sector information should bemade available electronically, who for, why,how and at what price. In the Cabinets view,so-called basic information of the democraticconstitutional state (legislation andregulation, statements by the judiciary courtsand parliamentary information) should bemade accessible as much as possible sincethis category of information is generallyspeaking, public. ICT may be an importantinstrument in this. Regarding electronic datafiles of administrative authorities, theCabinet has noted in the memorandum thata policy needs to be developed governingaccess to file data, in particular the accessby the private sector.

As a follow-up to the memorandum,electronic data files of administrativeauthorities are currently being examined ontype, use, origin of the data and legal status.The aim is to categorise electronic data filesin order to develop policy measures for theaccess to specific types of data files. Suchmeasures are considered necessary since itis unlikely that exploitation or commercialreuse of electronic public sector data files,given their diversity, can be covered by ageneral rule.

Portugal

There is a general access to public sectorinformation law (65/26.8.1993), but nogeneral rules or policies concerningcommercialisation. In general, information ischarged at the lowest possible price, in viewof the public service mission of the publicauthorities. There is a public citizens accessproject providing kiosk-type access tospecific areas of public sector information,the technical execution of which is to someextent entrusted to the private sector. Somefurther examples of public/private sector co-operation exist in the company and legalinformation areas, although the small size ofthe market and the relative lack of electronicgovernment databases does not encouragesuch commercial initiatives.

Spain

Spain has a general access law(30/26.11.1992) which does not currentlyapply to computerised information. A legal

interest in the requested information is required.A royal decree has recently been adoptedregulating the use of electronic informationtechniques by the central generaladministrations. Reference is included to therelationship between administration and citizen.Recent studies have shown that information on34% of public services is accessible to thepublic, access being provided in certain casesin collaboration with the private sector. There isno general commercialisation policy. Tariffsvary from zero(40% of the cases) to marketprices. There are many examples ofpublic/private sector co-operation especially atregional and local level in areas like externaltrade, finance, culture, education and sciencewhile in areas like company information andstatistics, co-operation has been either non-existent or unsuccessful.

Sweden

Sweden has the oldest access law in the world(the 1766 Freedom of the Press Act, lastamended in 1994) giving access to documentskept by a public authority, including electronicdocuments. All documents drawn up orreceived by an authority are included. Accessto documents is free of charge, although acharge is made for documents over 9 pages.There is no obligation to make availablerecords for electronic data processing in anyform other print-outs.

Access can be denied only with reference to aspecific clause in legislation demandingsecrecy (the Secrecy Act).

In principle, this legislation also coversinformation held in databases and registers ofpublic authorities. Access to inf