Rights of Access to Public Sector Information

Mireille Van Eechoud, Katleen Janssen

Abstract

The reliance on national access norms is an important feature of the EU’s re-use framework. It impacts the kinds of policy choices that can be expected to be effective in stimulating commercial and non-commercial re-use of public sector information by private actors (businesses, civil society organizations, individual citizens, etc.). In this paper we assess in more detail the relationship between the PSI Directive and (statutory) rights of access and duties to disclose information under national laws and European law (the latter especially in the area of environmental law).

The conclusion is that despite the fact that access to information is increasingly recognized internationally as a fundamental right the nuts and bolts of it will remain squarely a national affair for the foreseeable future, with the exception of access to environmental information. This makes it especially important that EU reuse policies and instruments enable public sector bodies in Member States to work within their existing access infrastructure, in terms of local divisions of competences, procedures and control over pro-active dissemination of information. If the requirements imposed under EU re-use law do not align with local freedom of information laws, it may produce a negative effect on transparency. Not only that, it may also adversely affect conditions for fostering (commercial) re-use.

At the same time, it is worth keeping in mind that documents that are public under freedom of information laws are not necessarily of interest to re-users, especially since the request procedures under such laws are not geared to the supply of (dynamic) datasets.

The relationship between access regimes and re-use rules is still poorly understood on many levels, notably the type of rights/obligations on access that exist which are especially relevant to re-use, and whether these are accompanied by procedures that meet the specific needs of re-users. Having a better understanding of this will allow identification of the most promising areas for re-use and help prioritize EU action at the interface of access and re-use.

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