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Our investigation to figure out how to make PSI requests this time focuses on Denmark. 
This country can be considered as an early adopter of the open data philosophy. Nonetheless, making an access or re-use request does not seem a common practice.

Legal framework

Denmark has a long tradition in terms of access to public sector information. Already in 1866 the country provided a limited right of access to information for parties involved in administrative cases. However, there is no trace of the right of information in the Danish constitution, thus it is regulated by statutory law and by the European Convention of Human Rights. Since the beginning instead there was a clear separation between the re-use framework and the access framework.

As for the access framework, since 1970 the country has a Public Record Act which provided everyone with access to governmental information. The Public Records Act was then improved with Act no. 572 of 19 December 1985.


We have to wait until 2013 to see a new Freedom of Information Act. Act no. 606 of 12 June 2013 was preceded by a long debate, most of the protests regarded the limitation of public access to internal documents regarding political decisions and issues.

As regards the re-use of information framework, Directive 2003/98 on the re-use of PSI was partially implemented by Act on the re-use of public sector information no. 596 of 24 June 2005. The Law was amended by Act no. 551 of 17 June 2008 and the amendment widened the law and included Parliamentary and Court.

The Law currently in force is the Act amending the Act on the re-use of public sector information of 2 June 2014 implementing parts of Directive 2013/37/EU.

Apart from the legal landscape, some initiatives deserve a mention. The first one is the Basic Data Program. Basic Data are a resource that has been produced and gathered throughout the years by the Danish public bodies. They are divided into five categories: Geographic data, Address data, Real Property data, Business Data and Personal Data (CPR).  Basic Data are free to use, for everyone – private companies, public institutions and citizens and easily available via the shared distribution platform, the Data Distributor (https://datafordeler.dk), from where it can safely and easily be used – with respect for personal and sensitive information.

The opendata.dk portal is a collaboration between five municipalities in Denmark (Aarhus, Copenhagen, Vejle, Odense and Central Region Denmark) that was established in 2014. The project aims to function as a national platform for Open Data as well as encourage other municipalities to start working and publishing data on the portal.

The Danish National Archives stores and collects original documents of historical value and makes them available to the public. It is interesting to note that in this case access to data is regulated by the Archives Act.

The Library Open Access Repository (LOAR) is an open data repository established in 2016 as a service for storing and providing access to Danish research data.


In practice

Surprisingly it is very hard to find references on how to address a re-use or access request to a Danish public sector body; neither specific email addresses or forms to fill on their websites.  Also existing Open Data platforms like opendata.dk do not offer support in this regard.

That means one of two things: either all data regarding public sector information are almost freely accessible or making re-use or access requests is not a common practice in Denmark.

The second option seems more likely considering that the legislation does not describe how a request should be formulated, i.e. what information should it contain.  The only recommendation addressed to the re-user is that

Article 4 of Act on the re-use of public sector information no. 596 of 24 June 2005.:
" Requests for re-use shall be submitted to the public sector body that holds the document or data collection or to the bodies which under other legislation administer data collection. “

Ultimately, if you want to obtain data not yet released by a Danish Public Sector, make a request using our PSI Monitor!

In the preparatory note of the proposal of the new PSI Directive it is reported that the recast clarifies the relation between Directive 96/9/EC on legal protection of databases and the PSI Directive itself.

Let’see what is the contested subject-matter.

 

In the context of the legal protection of databases, Directive 96/9/EC introduced a particular protection, the sui generis right.
The sui generis right is attributed to the creator of a database, identified as the person who has made significant investments of money, time and work, regardless of the existence of any requirement of creativity or originality of the work. In this way, the database is protected purely in view of the effort and economic risk involved in collecting the information in it.

This right was originally aimed to protect the investment and to discourage any possible extraction and reuse of the contents of the database. This is obviously not in line with the principles of the PSI Directive.

The two directives seem to go in opposite ways: the PSI Directive promotes the idea to make as much public information available for re-use as possible, whilst the Database Directive is trying to limit and control the re-use of information.

In other words, we are looking at some sort of antinomy, where we have two ideas that are in themselves reasonable but contradictory.

 

Why a clarification is important

At first glance it may seem a sophisticated subject and of little use to most people, but it is not so, for several reasons.

Firstly, public sector bodies are tempted to leverage this right in order to deny the re-use of data. Here an example.

Secondly, emerging technologies such as IoT, AI and Big Data are creating a number of new scenarios potentially covered by sui generis protection. Let’s think to situations in which sensors and other devices gather data on a distributed infrastructure (i.e. mobility tracking): they may involve significant investments and therefore the sui generis right could be applied. Other big data use-case may require complete data sets from a multitude of databases, this may infringe the sui generis right.

Thirdly, the forensic practice does not suggest legal certainty as regards the interplay between the two directives.

 

The recast of the PSI Directive: a contribute to the clarification

Original 2003/98/EC PSI Directive contained a reference to the database protection in recital 24.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ( 1 ) and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases ( 2 ). It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents.

It simply stated that the PSI Directive cannot be used against the Database Directive, but it did not help to solve the question since the contrary remained unclear: does the sui generis right affect the obligations in the PSI Directive?

The new PSI Directive proposal, which once adopted will be named “Open Data and Public Sector Information Directive”, seems to have put an end to the dispute.

New point 5 of article 1 removes any doubt about the possibility for the Public sector bodies to invoke the sui generis right:

5. The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents pursuant to this Directive.

The statement is confirmed by recital 53, which substitutes recital 24 of Directive 2003/98/EC:

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular, where public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it in order to prevent or restrict the re-use of data contained in databases.

However, looking at the compromise text agreed with the European Council on 7 November 2018, the concept seems a bit softened.


Point 5 of article 1 is slightly changed:

The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents or to restrict re-use beyond the limits set by pursuant to this Directive.  

Whereas in the wording of recital 53 the explicit reference to the Database directive is deleted.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular,wWhere public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it that right in order to prevent re-use or to restrict the re-use of data contained in databases existing documents beyond the limits set regulated by this Directive.

 

The ongoing evaluation of the Database Directive: a possible alignment

Last year the European Commission published a study in support of the evaluation of the Database Directive. Curiously, it was released on 25 April, the same date of the first publication recast of the PSI Directive and maybe it’s not a coincidence.

In short, the study reported that:

There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost. It makes the EU less competitive than other economies where data research and public is more open.

Then the authors of the study suggest that the removal of the protection of the sui generis right for public bodies including research institutions would be a possibility, but it should be ensured that those which are self-funded and act somewhat as commercial entities are not excluded from the benefit of the sui generis right, as their existence, and with that valuable databases, may be threatened.


Conclusion

The interpretation issues concerning the sui generis right in the context of PSI Directive, will most likely be a thing of the past. The new “Open Data and Public Sector Information Directive” clearly states that the public sector bodies cannot use the sui generis right to prevent or restrict the re-use of documents although the concept was a bit softened in the compromise text agreed with the European Council on 7 November 2018.

As far as the Database Directive is concerned, a recent study in support of the evaluation of the directive suggests deleting the sui generis right with the exclusion of those public sector bodies that rely on this right for their economic survival.

 

A new chapter of our series of articles on how to make a request in the EU member states: the situation in Finland.

Legal framework

The prodrome of the opening of government information in Finland is dated 1999 when the Act on the Openness of Government Activities (621/1999) was promulgated. Furthermore, a separate Decree on the Openness of Government Activities and on Good Practice in Information Management provided guidelines for government officials working with information management and FOI issues.

However the development of an open policy received a boost in 2011 when the Finnish government announced a proposal for a decision on the availability of digital data in public administration that stated that the datasets must be openly available and reusable on unified, clear and equal terms, free of charge.
The first significant national datasets were opened in May 2012 when the National Land Survey opened its terrain data. In 2016, Decree of the Ministry of Finance (607/2016) on the provision of some common electronic support services for the administration established that an open information and interoperability web service should be created; shortly followed the publication of the national open data portal Avoindata.fi.

 

 A useful resource of the Avoindata.fi portal is the Open Data Guide, which contains instructions, tips and other hints to consider when applying data, whether you are a re-user, a data provider or a software developer.

 

Always in 2016, the government approved a proposal of the Ministry of Transport and Communications to increase the utilization of large data sets in business.

In 2017, at the Digital North conference, the ministers from the Nordic and Baltic regions signed a declaration to integrate their digitalization efforts in order to support the free movement of data and to put in place the EU digital single market in the Nordic-Baltic region.

In the meantime, another important initiative took place in the Helsinki Region: the Helsinki Region Infoshare (HRI) service, published in March 2011, which is a web portal for a fast and easy access to open data sources between the cities of Helsinki, Espoo, Vantaa and Kauniainen. It also provides a form to make data requests; here you can find all the requests received since 2012.

As for the science data, the AVAA platform for publishing open research data deserves a mention.

In practice

Although there is no official centralized service to which re-use requests of data not yet publicly available can be addressed and apart from the above-mentioned HRI service, you can leverage several initiatives at city and region level.

 

The Oulu City Data Portal includes 83 downloadable datasets divided into 12 categories. and provides a form to send data requests.

Also the city of Tampere offers its portal: tampere.fi contains 114 datasets divided into the same categories as above and provides this form.

Both portals share the same appearance and functionality. As for the management of the data requests, they undertake, where possible, to have the requests delivered to the data owner.


Lounaistieto
is a regional information service regarding Southwest Finland with open datasets, statistics and a rich map service; there is no specific form for data requests but you can use the contact page to ask support.

The six cities behind DataBusiness.fi (Helsinki, Espoo, Vantaa, Tampere, Turku and Oulu) are collectively opening their data resources as widely as possible to create a collaborative working environment for producers and utilisers of data. They offer free business and development services including education and training, academic collaboration etc. Use their contact page to ask support.

The avoindata.net platform is a question & answer website that you can use for your data requests (through this form). Although it might be similar other free services around Europe, like whatdotheyknow.com, fragdenstaat.de, Data.overheid.nl etc., it does not redirect your request to the public sector body concerned but you can anyway receive useful tips from the community.

As a general rule, to address a re-use request to a Finnish public sector body, it is worth to have a look at its website; sometimes you can download a module to be compiled and sent to the mail address indicated. An example here.

In the other cases, you have to create the request following the basic rules written in the Act on the Openness of Government Activities, Section 13, Requesting a document:
  - the request must clearly indicate which documents are needed.
  - The person requesting the information does not need to clarify his identity or justify his request unless this is necessary for the exercise of the discretionary power of the authority or to ascertain whether the applicant has the right to be informed of the content of the document.

Afterwards,  you can send the request directly to the public sector body or let PSI Monitor do it for you: register to psimonitor.eu, click on add your request and fill the form.

Our investigation to figure out how to make PSI requests this time focuses on Poland. The legal framework supporting re-use requests seems accurate although a bit bureaucratic.

Legal framework

The first stone on Polish legislation concerning access to public information is dated 2 April 1997, when the Constitution of the Republic of Poland established the right to public information in Article 61 (1):

A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

Shortly afterwards, on 2001, the Polish parliament approved the Freedom of Information Act (“FOIA”). It stated two important concept: the first one is that any information on public matters constitutes public information and the  second one is that everyone has the right of access to public information without the need to prove any legal or non-legal interest. However, the FOIA also came up with the principle that public information could be limited due to the need to protect classified information.

The Polish classification regime was first regulated with the the Protection of Classified Information Act dated 1999 but it lacked of clarity and functionality and was heavily reformed with the Protection of Classified Information Act of 5 August 2010.

The right to re-use was introduced for the first time with the 2011’s amendment of the Freedom of Information Act; it contained on chapter 2 a re-elaboration of the contents of Directive 2003/98/EC. In addition, it also provided for the creation of a Central Public Repository where placing public information. The details of the repository were defined with the Regulation of the Council of Ministers regarding the Central Public Information Repository of 2014, which was followed by the publication of the portal dane.gov.pl.

Afterwards, Directive 2013/37/EU was transposed through the adoption of the Act of 25 February 2016 on the re-use of public sector information.

In practice

The possibility to make a request for access to information was already foreseen in the first version of the Freedom of Information Act of 2001, but there were no operative guidance on it. With the amendment of 2011, more details have been added indicating, for instance, that the public sector body involved should answer to a request within 20 days. However it is within the Act of 25 February 2016 on the re-use of public sector information that you can find how to formulate a request.


As can be seen, article 21 also includes cases in which the information has already been made available but the conditions for re-use have not been determinated or provided under other access to information laws or the purpose of the re-use is not covered by the terms.
ARTICLE 21 of Act of 25 February 2016 on the re-use of public sector information  

A request for re-use, hereinafter referred to as a ‘request’, shall be submitted if public sector information:
1) has not been made available in the Public Information Bulleting or the central repository;
2) has been made available otherwise than as specified in paragraph 1 and conditions for re-use or charges for re-use have not been determined, or information about the lack of such conditions or charges has not been provided;
3) will be used on the terms other than those specified for this information;
4) has been made available or provided under other acts laying down the rules and procedure for accessing information constituting public sector information.

A request may concern the re-use, in a continuous and direct manner in real time for a period not exceeding 12 months, of public sector information gathered and stored in the IT system of an obliged entity. A request shall include in particular:
1) the name of the public sector body;
2) information about the applicant, including the full name or business name and address to make it possible to send a reply to the applicant or the applicant’s attorney in the manner or form specified in the request;
3) information about the public sector information that will be re-used and, if this public sector information has already been made available or provided, the conditions for re-use as well as the source of making available or providing;
4) information about the purpose of re-use (commercial or non-commercial), including the area of activity in which public sector information will be re-used, in particular goods, products or services;
5) information about the form of preparation of public sector information and, for electronic form, also about the data format;
6) information about the method of providing public sector information, unless it has been made available or provided in a different manner, or about the method of accessing information gathered in an IT system, as referred to in paragraph 2.


The public sector body has 14 days to answer the question; in particular cases the deadline may be extended to a maximum of two months. Articles 23 and 24 specify the available answer options.
ARTICLE 23 1. of Act of 25 February 2016 on the re-use of public sector information
After considering a request, except for a request as referred to in Article 21(2), an obliged entity shall:
1) provide public sector information for re-use without establishing conditions for re-use;
2) provide information about the lack of conditions for re-use if public sector information is held by the applicant;
3) submit an offer containing conditions for re-use or information about the amount of charges for re-use; 4) refuse, by means of a decision, to authorise the re-use of public sector information
ARTICLE 24 1. of Act of 25 February 2016 on the re-use of public sector information
After considering a request as referred to in Article 21(2), an obliged entity shall:
1) submit an offer containing conditions for re-use or information about the amount of charges for re-use, against which an objection cannot be filed;
2) inform the applicant that re-use in the manner specified in the request is impossible;
3) refuse, by means of a decision, to authorise the re-use of public sector information. Article 23(4) and (6) shall apply.


Then the applicant must then complete some formal steps; he has 14 days to accept the answer by the public sector body or to file a complaint.

From a practical point of view, looking at the website of the public sector body owner of the data you want to re-use is the first step. Often you will find a request form to compile; some examples below:

The Supreme Audit Office

Public Information Bulletin

Kielce city

Krakow city

In other cases, you need to have an account on ePUAP service, the Polish nationwide platform for communication of citizens and businesses with public sector bodies.

Anyway, If the bureaucratic details of the law seem complicated and you fear to be mistaken, don’t warry there is a good alternative.

 


The website informacjapubliczna.org has published a complete guide on how to make a request. Together with useful hints, you can find a template for the request, 7 different complaint templates and if all of this would not sufficient you can contact them to have free support.

 

Don’t forget to add your request also into the PSI Monitor repository, this action would ensure a wider exposure of your request at European level and that might contribute to a successful conclusion of the application.

 

The PSI Directive is a legal instrument allowing for the implementation of a horizontal policy that aims to facilitate the re-use of public sector information. However, it is not the only one. There are other directives, regulations and proposals for regulation which provide rules for the re-use of information in specific sectors. One of them regards the multimodal infomobility.

EU-wide multimodal infomobility

In the framework of the Intelligent Transport Systems (ITS) across Europe,  the main reference for which is the ITS Directive (Directive 2010/40/EU), an important role is played by multimodal infomobility. When passengers have to combine different transport modes to reach a destination, they face difficulties such as route planning, ticketing and payments.

Over the years, the European Commission has integrated the ITS Directive with some delegated acts dealing with specific aspects of infomobility:

Commission Delegated Regulation (EU) No 305/2013  about the interoperable EU-wide eCall,

 Commission Delegated Regulation (EU) No 885/2013  about safe and secure truck parking,

 Commission Delegated Regulation (EU) No 886/2013  about road safety-related minimum universal traffic information,

 Commission Delegated Regulation (EU) No 962/2015  about road and traffic data by road authorities,

Commission Delegated Regulation (EU) No 2017/1926  about EU-wide multimodal travel information services.

 

In particular, Commission Delegated Regulation (EU) No 2017/1926 foresees that by 1 December 2019 the EU Member States will have to communicate to the European Commission the actions put in place to set up the national access points to multimodal infomobility and the modalities of their functioning.

 These national access points have to constitute a single point of access for users to the static travel and traffic data and historic traffic data of different transport modes. The provision of dynamic real-time travel and traffic data is left as an option.

 

Consequently, travel and traffic data provided by the national access points have to be considered reusable open data. The conditions for the reuse are described in article 8 point 1 and 4.
In short, they shall be accurate and up to date, accessible for re-use on a non-discriminatory basis and may be subject to a license agreement provided that the restrictions are minimal and the costs reasonable.

ARTICLE 8 of the Commission Delegated Regulation (EU) No 2017/1926  

The travel and traffic data listed in the Annex and the corresponding metadata including information on the quality thereof shall be accessible for exchange and reuse within the Union on a non-discriminatory basis, through the national or common access point and within a time-frame that ensures the timely provision of travel information services. They shall be accurate and up to date. [Point 1]

The terms and conditions for the use of the traffic and travel data provided through the national access point may be determined through a licence agreement. Those conditions shall not unnecessarily restrict possibilities for reuse or be used to restrict competition. Licence agreements, whenever used, shall in any event impose as few restrictions on reuse as possible. Any financial compensation shall be reasonable and proportionate to the legitimate costs incurred of providing and disseminating the relevant travel and traffic data. [Point 4]

What are the travel and traffic data?

Traffic and travel information is everything that allows a traveller to obtain door-to-door information for well-informed travel decisions (pre-trip) as well as information during the journey (on-trip). Annex I of the Delegated Regulation provides for three levels of service.

 

Level of service 1, which shall be set up within 1 December 2019, includes static travel data as shown in the table.

 
 
 
 

Level services 2 and 3 have to be accomplished by 2020 and 2021.

 

New opportunities for the re-users

Re-users can play a productive role in the development of a traveller information service at European, national and local level. These opportunities are interesting and the legal framework to support them is in place.

The PSI Directive provides the general framework for the conditions governing re-use of public sector documents in order to ensure fair, proportionate and non-discriminatory conditions for the re-use of such information whereas article 8 of 2017/1926 Delegated Regulation of 31 May 2017 reinforces the concepts of the multimodal mobility information.

The availability of public data on mobility, traffic and transport will surely bring new business opportunities to light but they will have to be in line with the public urban mobility policy; this is why the Delegated Regulation allows the use of Licence agreements for the mobility data.

Possible applications and services may vary from the assessment and improvement of the quality of the infomobility data to the evaluation of the efficiency of the activities of the operators, from the comparison of fare data to integrated ticketing, from the analysis of historic data to the prevention of accidents and so on.

Where we are?

The process of setting up of the National Access Points is progressing at different speeds depending on the country. According to the official list:

20 countries have already set up their RTTI National Access Points as required by Delegated Regulation 962/2015 (where RTTI stands for Real-time traffic information);

8 countries have set up their MMTIS National Access Points as required by Delegated Regulation 1926/2017 (where MMTIS stands for multi modal information services).

This means that there are still many barriers to be overcome.

 

Photo by Oscar Sutton on Unsplash

 

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