Further use of public sector information: Problems of implementation of Law 3348/2006
Law 3348/2006 "on the re-use of public sector information and the regulation of issues of the Ministry of the Interior, Public Administration and Decentralization" incorporated Directive 2003/98 / EC into the Greek legal order. The aim of the latter is to create an information market based on public sector information, which, given the volume of information available to the latter, assumes significant economic value.
In an article in the Journal of Commercial Law Review 2006 (p. 909 et seq.), We pointed out the following problems of law enforcement:
I. The general framework
The general principle of the Directive that it should be possible to re-use documents held by public sector bodies for commercial or non-commercial purposes where permitted (Article 3 of the Directive) has been transferred to Article 2 of the Directive 3448/2006, which provides for public sector bodies to ensure that documents held by them can be re-used for commercial or non-commercial purposes in accordance with the terms of this law.
The law regulates the conditions for access to public information in Article 3 and does not refer directly to the legislation regulating this access, ie to the provisions of article 5 of law 2690/1999 and article 16 of law 1599 / 1986. However, it is possible to apply these provisions in parallel, such as in the case where the request for further documents relates to private documents kept by the public services, the applicant must prove that he has a specific legal interest (Article 5 § 2 of Law 2690/1999).
The right to request documents for re-use for commercial or non-commercial purposes is anyone who wishes to make use of documents held by public sector bodies if he submits a request in writing or in electronic form to the service he has issued or has in the possession of the document, in accordance with Article 5 of Law 3448/2006. It is not necessary, therefore, to assume a legal interest or to grant a 'reasonable interest', which is a prerequisite for access to administrative documents, in accordance with Article 5 of Law 2690/1999.
As in the Directive, and according to Law 3448/2006, public sector bodies are not obliged to provide documents by electronic means, except where possible and appropriate (Articles 2 (b) and 6 (1) of Law 3448/2006, Articles 3 (b) and 5 (1) of the Directive). It further clarifies that the relevant provisions do not grant any third party the right to require the public sector body to produce specific types of documents for the purpose of their re-use (Article 6 § 2). Paragraph 3 of the same article provides for a 'very obvious' restriction, according to which the content of the documents should not be altered or distorted in any way, and that reference should be made to the source of origin their date of last update.
Critical issues, of course, for the operation of the re-use system are the authorization process and the charging of fees. Law 3448/2006 states in Article 7 that public sector bodies may allow the unconditional re-use of documents or impose conditions through licensing or other means, including the charging of fees. While the conditions are determined by decision of the competent Minister, the amount of the fees, where these are imposed, is determined by a joint decision of the competent Minister and the Minister of Economy and Finance.
These arrangements reiterate the provisions of Article 8 of the Directive and contain authorization to regulate re-use licenses; however, they lead to a case-by-case approach to this issue and there is a lack of clear policy on this issue.
In the present case, it would certainly be useful to make use of the option provided for in Article 7 § 2 of the Act, whereby it should be ensured, where possible, that standard licenses are available in digital form and electronically processed, and adaptation to address specific cases. By generalizing the use of standard licenses, we could lead to a single and transparent licensing system, corresponding to the UK-based system where clicks and use licenses are used to which users access through of the Internet and for which, with the exception of value added licenses, no costs are imposed.
At the same time, provision should be made for Article 10, which provides for measures to facilitate the search for documents, including in particular the drawing up and distribution of lists of the main electronic documents and the centralization of the relevant information, associated with decentralized directories.
As regards the principles governing the charging of charges for re-use of documents, Article 8 § 1 of Law 348/2006 reiterates the provisions of Article 6 of the Directive and states that if fees are levied, the total revenue from the re-use of documents must not exceed the cost of collection, production, reproduction and dissemination, including a reasonable return on investment made by the public operator concerned, taking into account also the possible costs for further processing in accordance with Article 3 2. According to a corresponding rule of the Directive, fees are calculated on the basis of the costs incurred during the relevant accounting period and in accordance with the accounting principles applicable to the public sector entities concerned.
Thus, in the matter of charging, the Greek legislator adopted the Community provision accepting the possibility of using the information from the Administration. However, here too, the arrangements are not clearly defined, leaving it to the discretion of the Administration to impose fees, while there is no accounting separation between the main activity of the public body and the issue of documents for re-use, without which it will be extremely difficult to calculate of the return on investment made by the relevant public body in each specific case.
Both the issue of charging and licensing require the adoption of regulatory acts to enforce the relevant provisions of the law, which will streamline licensing and charging policy on the re-use of public documents sector. The above law has the character of a quasi-framework law, at least as far as the two aspects of the re-use of information are concerned.
Restrictions on the right to re-use information
Public sector bodies may refuse to dispose of the documents in their possession for re-use, based on the exceptions to the scope of Law 3448/2006 contained in Article 3. These exceptions are based on the corresponding exceptions of Article 1 § 2 et seq. of the Directive and concern (Article 3 § 1): (a) documents the award of which does not fall within the public purse of the public sector bodies concerned, as defined by the applicable provisions; ) documents for which third parties or entities of d (c) documents to which access is excluded in accordance with Article 5 §§ 3 and 5 of Law 2690/1999 as well as any other relevant provision, in particular for reasons relating to the National security,
Furthermore, paragraph 2 of the same article provides for a reservation in favor of the legislation on the protection of personal data (Law 2472/19970), the provisions of which should be applied in the case where the public sector documents also contain personal data, which must , in addition, be subjected to special treatment to be eliminated.
The scope of the exemptions is broadened in relation to the corresponding exceptions to the Directive, since the Greek legislator has taken into account the current regime of access to public information and the relevant restrictions. The legislative, however, development of the exemptions is not perfect; for example, Article 3 § 1 of Article 3 (1) includes the reservation on the case where third parties or the State have intellectual or industrial property rights; c) reference is made to paragraph 5 of Article 5 of Law 2690/1999, which also provides for a reservation on the existence of corresponding rights.
Regarding the existence of intellectual or industrial property rights of the State, it has already been pointed out that the State and the legal entities governed by public law may be private entities only in their function as fiscus and not when they act as bodies of public authority. Based on this distinction, it will be determined whether public sector entities have exclusive rights to their information or databases and if they are therefore entitled to reject the requests for re-use of the relevant data. However, the rights of third parties in the documents held by public sector entities, such as public officials or lawyers, remain intact. potential beneficiaries or co-holders of intellectual property rights or patent holders.
The issue also arises with regard to the provision of Article 5 § 3 Law 2690/1999, which provides for an exception to the right of access to documents, inter alia where the document relates to the private or family life of a third party. At the time provided in paragraph 2 of Article 3 of Law 3448/2006 that data protection legislation is applicable when re-using information, the introduction of an additional privacy restriction makes it more difficult for the person submitting it re-use request. In particular, it should be borne in mind that the prohibition in Article 5 § 3 of Law 2690/1999 is absolute and therefore has caused significant interpretative problems.
It is accepted in theory that this absolute prohibition is not in accordance with the Constitution, since it is incompatible with the principles of practical harmonization and proportionate balancing of opposing rights (access to public documents and the right to privacy) therefore, deprives the constitutional right of Articles 10 § 3 and 5a § 1 of the Constitution. . Therefore, a restrictive interpretation of the provision of Article 5 § 3 Law 2690/1999 is required. In particular, it must be accepted that the reference to private or family life concerns the inviolability of private life, which is the legal good protected by Article 9 § 1 § 2 of the Constitution and which is narrower than the right to the protection of personal data constitutionally enshrined in Article 9a of the Constitution.
It is also worth noting that in the case of educational, research and cultural institutions for which the use of the information they hold is particularly crucial to the financing of their operation, an exemption is provided for from the disposal obligation for re-use - but these exceptions are removed where this is permitted by the general legislation or the legislation governing the body in question. In the latter case, the provisions of Law 3448/2006, such as charging principles and conditions for re-use, will apply.
In an article in the Journal of Commercial Law Review 2006 (p. 909 et seq.), We pointed out the following problems of law enforcement:
I. The general framework
The general principle of the Directive that it should be possible to re-use documents held by public sector bodies for commercial or non-commercial purposes where permitted (Article 3 of the Directive) has been transferred to Article 2 of the Directive 3448/2006, which provides for public sector bodies to ensure that documents held by them can be re-used for commercial or non-commercial purposes in accordance with the terms of this law.
The law regulates the conditions for access to public information in Article 3 and does not refer directly to the legislation regulating this access, ie to the provisions of article 5 of law 2690/1999 and article 16 of law 1599 / 1986. However, it is possible to apply these provisions in parallel, such as in the case where the request for further documents relates to private documents kept by the public services, the applicant must prove that he has a specific legal interest (Article 5 § 2 of Law 2690/1999).
The right to request documents for re-use for commercial or non-commercial purposes is anyone who wishes to make use of documents held by public sector bodies if he submits a request in writing or in electronic form to the service he has issued or has in the possession of the document, in accordance with Article 5 of Law 3448/2006. It is not necessary, therefore, to assume a legal interest or to grant a 'reasonable interest', which is a prerequisite for access to administrative documents, in accordance with Article 5 of Law 2690/1999.
As in the Directive, and according to Law 3448/2006, public sector bodies are not obliged to provide documents by electronic means, except where possible and appropriate (Articles 2 (b) and 6 (1) of Law 3448/2006, Articles 3 (b) and 5 (1) of the Directive). It further clarifies that the relevant provisions do not grant any third party the right to require the public sector body to produce specific types of documents for the purpose of their re-use (Article 6 § 2). Paragraph 3 of the same article provides for a 'very obvious' restriction, according to which the content of the documents should not be altered or distorted in any way, and that reference should be made to the source of origin their date of last update.
Critical issues, of course, for the operation of the re-use system are the authorization process and the charging of fees. Law 3448/2006 states in Article 7 that public sector bodies may allow the unconditional re-use of documents or impose conditions through licensing or other means, including the charging of fees. While the conditions are determined by decision of the competent Minister, the amount of the fees, where these are imposed, is determined by a joint decision of the competent Minister and the Minister of Economy and Finance.
These arrangements reiterate the provisions of Article 8 of the Directive and contain authorization to regulate re-use licenses; however, they lead to a case-by-case approach to this issue and there is a lack of clear policy on this issue.
In the present case, it would certainly be useful to make use of the option provided for in Article 7 § 2 of the Act, whereby it should be ensured, where possible, that standard licenses are available in digital form and electronically processed, and adaptation to address specific cases. By generalizing the use of standard licenses, we could lead to a single and transparent licensing system, corresponding to the UK-based system where clicks and use licenses are used to which users access through of the Internet and for which, with the exception of value added licenses, no costs are imposed.
At the same time, provision should be made for Article 10, which provides for measures to facilitate the search for documents, including in particular the drawing up and distribution of lists of the main electronic documents and the centralization of the relevant information, associated with decentralized directories.
As regards the principles governing the charging of charges for re-use of documents, Article 8 § 1 of Law 348/2006 reiterates the provisions of Article 6 of the Directive and states that if fees are levied, the total revenue from the re-use of documents must not exceed the cost of collection, production, reproduction and dissemination, including a reasonable return on investment made by the public operator concerned, taking into account also the possible costs for further processing in accordance with Article 3 2. According to a corresponding rule of the Directive, fees are calculated on the basis of the costs incurred during the relevant accounting period and in accordance with the accounting principles applicable to the public sector entities concerned.
Thus, in the matter of charging, the Greek legislator adopted the Community provision accepting the possibility of using the information from the Administration. However, here too, the arrangements are not clearly defined, leaving it to the discretion of the Administration to impose fees, while there is no accounting separation between the main activity of the public body and the issue of documents for re-use, without which it will be extremely difficult to calculate of the return on investment made by the relevant public body in each specific case.
Both the issue of charging and licensing require the adoption of regulatory acts to enforce the relevant provisions of the law, which will streamline licensing and charging policy on the re-use of public documents sector. The above law has the character of a quasi-framework law, at least as far as the two aspects of the re-use of information are concerned.
Restrictions on the right to re-use information
Public sector bodies may refuse to dispose of the documents in their possession for re-use, based on the exceptions to the scope of Law 3448/2006 contained in Article 3. These exceptions are based on the corresponding exceptions of Article 1 § 2 et seq. of the Directive and concern (Article 3 § 1): (a) documents the award of which does not fall within the public purse of the public sector bodies concerned, as defined by the applicable provisions; ) documents for which third parties or entities of d (c) documents to which access is excluded in accordance with Article 5 §§ 3 and 5 of Law 2690/1999 as well as any other relevant provision, in particular for reasons relating to the National security,
Furthermore, paragraph 2 of the same article provides for a reservation in favor of the legislation on the protection of personal data (Law 2472/19970), the provisions of which should be applied in the case where the public sector documents also contain personal data, which must , in addition, be subjected to special treatment to be eliminated.
The scope of the exemptions is broadened in relation to the corresponding exceptions to the Directive, since the Greek legislator has taken into account the current regime of access to public information and the relevant restrictions. The legislative, however, development of the exemptions is not perfect; for example, Article 3 § 1 of Article 3 (1) includes the reservation on the case where third parties or the State have intellectual or industrial property rights; c) reference is made to paragraph 5 of Article 5 of Law 2690/1999, which also provides for a reservation on the existence of corresponding rights.
Regarding the existence of intellectual or industrial property rights of the State, it has already been pointed out that the State and the legal entities governed by public law may be private entities only in their function as fiscus and not when they act as bodies of public authority. Based on this distinction, it will be determined whether public sector entities have exclusive rights to their information or databases and if they are therefore entitled to reject the requests for re-use of the relevant data. However, the rights of third parties in the documents held by public sector entities, such as public officials or lawyers, remain intact. potential beneficiaries or co-holders of intellectual property rights or patent holders.
The issue also arises with regard to the provision of Article 5 § 3 Law 2690/1999, which provides for an exception to the right of access to documents, inter alia where the document relates to the private or family life of a third party. At the time provided in paragraph 2 of Article 3 of Law 3448/2006 that data protection legislation is applicable when re-using information, the introduction of an additional privacy restriction makes it more difficult for the person submitting it re-use request. In particular, it should be borne in mind that the prohibition in Article 5 § 3 of Law 2690/1999 is absolute and therefore has caused significant interpretative problems.
It is accepted in theory that this absolute prohibition is not in accordance with the Constitution, since it is incompatible with the principles of practical harmonization and proportionate balancing of opposing rights (access to public documents and the right to privacy) therefore, deprives the constitutional right of Articles 10 § 3 and 5a § 1 of the Constitution. . Therefore, a restrictive interpretation of the provision of Article 5 § 3 Law 2690/1999 is required. In particular, it must be accepted that the reference to private or family life concerns the inviolability of private life, which is the legal good protected by Article 9 § 1 § 2 of the Constitution and which is narrower than the right to the protection of personal data constitutionally enshrined in Article 9a of the Constitution.
It is also worth noting that in the case of educational, research and cultural institutions for which the use of the information they hold is particularly crucial to the financing of their operation, an exemption is provided for from the disposal obligation for re-use - but these exceptions are removed where this is permitted by the general legislation or the legislation governing the body in question. In the latter case, the provisions of Law 3448/2006, such as charging principles and conditions for re-use, will apply.
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