13.1.2016 1 republika slovenija ministrstvo za javno upravo , e: [email protected] tržaška cesta 21,...
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04/21/23 1
REPUBLIKA SLOVENIJA
MINISTRSTVO ZA JAVNO UPRAVO
www.mju.gov.si, e: [email protected]
Tržaška cesta 21, 1000 Ljubljana
t: 01 478 83 30, f: 01 478 83 31
The redress mechanism and challenges posed by the re-use
in Slovenia
Mateja Prešern, LL.M.Ministry of Public Administration
204/21/23
PSI re-use legislation in Slovenia
• Directive 2003/98/EC• Access to Public Information Act (Official Gazette RS No. 51/06, official consolidated version)
- Adopted first in 2003- Re-use included by the amendment to the Act in 2005
• Decree on the Provision and Re-use of Public Information
(Official Gazette RS No. 76/05, amended in 2007)
• texts in English available at: http://www.mju.gov.si/en/freedom_of_public_information/ - free PSI!
304/21/23
Ministry of Public Administration - MPA
• As a public sector body MPA is liable under the Act to provide free access to and re-use of its PSI
• A body specially designated by the Act to ensure openness and transparency of the functioning of the entire public administration, in particular by:
– drafting legislation– informing the public about the means and conditions for the
access to PSI and its re-use;– providing counseling to other PSBs in relation to the application
of the provisions of the Act;– administrative offence authority – Administrative Inspection
404/21/23
What kind of PSI is available out there?
Web sites of the individual PSBs
– Each PSB has to publish a “catalogue” of its PSI
(PSI held by the PSB partitioned into content blocs to serve as an
index to potential re-users) – content of a catalogue prescribed in detail by the Decree
inter alia: • a list of the public records managed by the PSB, with a brief
description of the content and info on whether the record is connected to any other public record
• a list of other computerised databases
• a list of important subject areas for other PSI
504/21/23
What kind of PSI is available out there?
Joint government portal E-Government
– http://e-uprava.gov.si/e-uprava/en/portal.euprava – Administered by the MPA– Easy and direct access to many public registers– Land registry (+ other geographical data)– Court register (of companies)– Business register– Plus numerous e-services
604/21/23
Request for access to and re-use procedure
A three-stage administrative procedure:
1. Public Sector Body
2. Information Commissioner
3. Administrative Court
704/21/23
A request to the PSB for re-use
The applicant must specify in the request:• information he/she wishes to re-use• manner in which the information is to be provided (an electronic copy, media)• purpose he/she wishes to re-use the information for
– commercial or non-commercial purposes– Slovenia had adopted a unique pricing and charging policy
in the sense that charging for re-use depends on the purpose of re-use
– all forms of re-use for non-commercial purposes are free of charge (Art. 34a of the Act)
804/21/23
Deciding on the request – decision of the PSB
• general time-limit for deciding on the request: 20 working days
• can be extended in exceptional cases for not more than another 30 working days (e.g. comprehensive documentation)
• if re-use is allowed – the decision includes the provision regarding charges for the re-use and other conditions for re-use (e.g. quotation of the source)
• if access/re-use is denied in whole or in part (partial access):
– a decision must explain grounds for refusal
– instruction on remedies
904/21/23
Redress mechanism
• The right of appeal to Information Commissioner– Information Commissioner Act (Official Gazette RS No. 113/2005)– http://www.ip-rs.si/ (go to English version)
• an autonomous and independent state body, competent for: – deciding on the appeal against the decision with which a PSB
refused or dismissed the applicant's request or violated the right to access to or re-use of PSI in some other way
– within the frame of appellate proceedings also for supervision over implementation of the Act
• the decision of the IC is the administrative decision according to the General Administrative Procedure Act
1004/21/23
Redress mechanism
The right of appeal to Information Commissioner:
– if request was dismissed by order because of procedural reasons
– if access/re-use was denied in whole or in part
– in case the PSB adopted no decision
– in case the information provided by the PSB is not the information requested by the applicant
– if the information was not provided in the form requested
– if right to access or re-use has been violated in some other way
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Information Commissioner - IC
– reviews the decision of the PSB according to the appellant’s allegations and ex officio whether there have been any severe violations of the procedure by the PSB or if the substantive law was applied incorrectly
– within the appellate procedure, the IC has a competency to acquire and review the requested information and documents (in order to assert the facts completely)
– the IC Act prescribes a fine of app. 400-1000 € for a misdemeanour upon an official who fails to transfer to the IC the demanded document
1204/21/23
The appeals to Information Commissioner – 2008 statistics
• cases in which access/re-use was denied by the PSB in whole or in part – 169 appeals to the IC in 2008
• cases in which the PSB adopted no decision – 259 appeals to the IC in 2008; upon the call of the IC
that a PSB must issue a decision – in 221 cases the PSBs allowed access
1304/21/23
Administrative dispute at the Administrative Court
• the right to lodge an administrative action against the decision of the Information Commissioner– in 2008 against 14% of the decisions of the IC the dispute has
been initiated– in 2007 against 13%
• a fine of 500 - 1100 € may be imposed upon an official, when in spite of the IC’s decision, the official fails to transfer the required documentation to the applicant (in the absence of the action at the Administrative Court)
1404/21/23
Case law
• not many cases directly related to the PSI re-use, however, some of the issues relevant for the access to PSI are equally relevant in cases of re-use
I. Is a body liable under the legislation governing the access to and re-use of PSI?
• Liable public sector bodies (general provision Art. 4 of the Act)– State bodies– Local government bodies
– Bodies governed by public law (public agencies, public funds, other entities of public law, public powers holders, public service contractors)
• public powers holders and public service contractors are liable under the Act only in that part of their activities which represent a public task. In addition, only the information related to stated activities is regarded as the PSI.
1504/21/23
Case lawII. A use of PSI by another PBS for the performance of its public task does not constitute a re-use
• The PSB: Surveying and Mapping Authority of Slovenia (SMA)
• The applicant: Snaga d.o.o., a company which conducts the activity of collecting and disposing of communal waste
• What PSI? The PSI from the Register of Spatial Units (postal area information, information on house number and streets). The applicant stated the information will be used internally, for the purpose of establishing an official database serving its information system.
• The SMA issued a decision by which it allowed the re-use and established that such re-use would be for the commercial purpose therefore it charged for it.
1604/21/23
Case lawII. A use of PSI by another PBS for the performance of its public task does not constitute a re-use
The appeal to the IC
– the applicant was asked to explain further what is going to be the purpose of the re-use in question
– the IC established that the applicant was founded as a company for performing commercial public service (i.e. public utility service) on the basis of the Ordinance on Commercial Public Service (OG RS No. 101/00; No. 2/08)
– the requested PSI is needed in order to establish a database – so called Register of Delivery Points (legal basis: the Ordinance on Public Service of Collecting and Transport of Waste, OG RS, No. 102/04) which must include locations of delivery points, street and house number etc.
1704/21/23
Case lawII. A use of PSI by another PBS for the performance of its public task does not constitute a re-use
The decision of the IC:
• the facts of the procedure were not assessed correctly and completely
• the substantive law was not applied correctly– commercial purpose – just because the legal status of the
applicant is such as in case of a commercial company– the SMA overlooked that the applicant is performing a public
utility service (according to the relevant Ordinance) and that– the PSI was needed for the establishment of a Register
prescribed by the Ordinance
• the IC declared the decision of the PSB to be null and void
1804/21/23
Case lawIII. Re-use for non-commercial purposes is non-chargeable
• The PSB: Surveying and Mapping Authority of Slovenia (SMA)
• The applicant: Speleological Research Society of Ljubljana • founded in 1910• the authors of the first online Cave Registry in the world;
• http://e-kataster.speleo.net/v2/index.php
• What PSI? For the territory of Slovenia – the latest versions of the topographic layers;
• basic topographic maps 1:5.000 and 1:10.000 all layers• state topographic maps 1:25.000• digital models of altitudes (25m metric mesh)• ortophoto 1:5000 – monochrome and colour
• Purpose of re-use: to be used as a graphic base for producing the cave documentation to be included within the Cave Registry and publicly accessible via internet, free of charge. Re-use requested to be free of charge on the basis of the Act and the Decree.
• The decision of the SMA: application refused in whole. Re-use possible but chargeable according to the Land Surveying Act and the Decree on Geodetic Data Issue Tariffs.
1904/21/23
Case lawIII. Re-use for non-commercial purposes is non-chargeable
The appellate procedure• in camera inspection by the IC of the PSI in question• within the procedure the SMA claimed that the raw data are actually
only measurements and numerical data obtained on terrain and not the maps as such:– the SMA claimed that it is not its public task to produce such maps,
that there is no legal basis for that and that the maps may be commercially marketed
• the IC established that the public tasks of the SMA are prescribed by the Land Surveying Act and in the Annual Program adopted by the Government:– the public task of the authority is not only to administer numerical data
and photos obtained from the terrain but also to produce the specific maps
• In additon, the SMA is a state administration body and may not perform the commercial activity, such as marketing of the maps
2004/21/23
Case lawIII. Re-use for non-commercial purposes is non-chargeable
The decision of the IC• Regarding the hierarchy of laws in relation to the issue of charging Access to Public Information Act (more general, in force from 2003,
re-use in 2005) v. Land Surveying Act (more specific, in force from 2000)– The aim of the Access to Public Information Act is to provide a uniform
and comprehensive legal framework for re-use of the PSI– The provisions on re-use result from the implementation of the EU
Directive– Legal argumentation: lex generalis posterior derogat legi speciali priori
• the Act and the Decree governing re-use prevail over the Land Surveying Act and the Decree on Geodetic Data Issue Tariffs – both of these have later on been changed in line with the re-use
legislation• the PSB is obliged to provide the applicant with the requested
information within 3 days (non-chargeable re-use)
2104/21/23
The Benefits of the Redress Mechanism
• Quite efficient• (Re-)user-friendly • Quick procedure• No charges• Crucial for correct interpretation and application of legislation
by the PSBs• Case law is easily available on the internet
– all of the decisions of the IC– great value both for the PSBs and the potential re-users
