Comments of the Watchdog Poland on provisions pertaining to re-use of public information, submitted during the legislative process

We were concerned that the lack of differentiation between dissemination and re-use of public sector information would result in obliged bodies’ arbitrary interpretation of the purpose of requests submitted by the requesters. This would contribute to limiting the political right by the the economic right. Specifically, citizens and journalists would be required to initiate a complex procedure for re-use of public sector information (special application form, longer time limit for processing requests for re-use, amounting to 20 days, obligation to reveal the purpose of information re-use, possible introduction of charges and terms of re-use), while applicants simply wish to have access to information (with no formalized application forms, maximum 14-day time limit, with no need to reveal the purpose of information request, no charges and no terms of re-use).

We were afraid that the new provisions would create a situation where institutions automatically impose all statutory conditions, and applicants have limited possibilities to appeal and challenge them in court. 

We were worried about imprecise provisions concerning charges for re-use of public information. We protested against prolongation of time limits (from 14 to 20 days) and against enabling the obliged bodies to assess the purpose of requests for information.

We were also concerned about the introduction, contrary to Article 4 of the currently binding Act, a specific list of bodies obliged to make available information for re-use, thus posing the risk of reinforcing the State monopoly on key information stored by public utility companies and State Treasury companies. 

We also emphasized the lack of a guarantee that obliged bodies would provide regular and up-to-date information. Easy access was supposed to be the focus of re-use of public sector information. Nevertheless, according to the adopted solution, the obliged body expects the applicant to submit a request every time the information is updated. On the other hand, the legislator emphasized that a modern solution, stimulating development of the economic added value, would be the Central Repository of Public Information with raw data (modelled on: http://data.gov.uk/).

Description of real problems with re-use of public sector information, observed by the Association of Leaders of Local Civic Groups, resulting from the framework of the currently binding law

Some entities deliberately restrict access to public information. Applicants are not protected against such situations by the currently binding law. A negative example can be the authorities of the city of Cracow and the municipal transport company. An entrepreneur who wished to create a mobile phone application with current timetables of public transport had to file a lawsuit to have this request granted. However, this has not changed the attitude of the obliged body which is unwilling to make public information available quickly and automatically, and hence forces the entrepreneur to submit requests for re-use of public information every day.

The obliged bodies reserve the right to evaluate the purpose of public information re-use by the applicants. Sometimes an entitled body applies for public information with a view to disseminating it, in accordance with to the procedure which was functioning prior to the amendments and is still binding. However, the obliged body decides that the aim of the applicant is to re-use the information and attempts to impose another procedure. This way of reasoning is applied even by appeal organs, e.g. the Local Government Appeal Court in Nowy Sącz. An applicant made a request in the local government for copies of building permits. The appeal organ – the Local Government Appeal Court – decided that the purpose of information use was different from its original purpose. Thus, the procedures of re-use of public sector information should be applied. This situation was caused by the abovementioned ambiguity of legal provisions. In accordance with this way of reasoning, the only procedure should be re-use of public sector information, because the entitled bodies always request information for other purpose than the original one. Therefore, dissemination of information (a political right guaranteed by Article 54 of the Polish Constitution) is limited by economic law.

Imposition of terms of re-use became a standard practice. Public Information Bulletins (official on-line publications) of obliged bodies contain standard requirements to give the source, time, information about processing, and even detailed identification data e.g. dates of issuing re-used judicial decisions, address of the court and file number. It is also required that information should be made available to subsequent institutions under the same conditions.

There is a doubt about the extent of adding publicly funded enterprises (operating as commercial companies) to the catalogue of bodies obliged to disclose information for re-use. This may influence e.g. re-use of data about timetables of national railways. 

Even though the abovementioned problems are isolated cases, it is worth noticing that they result from legal defects of the new provisions concerning re-use of public information. 

Description of real problems with re-use of public sector information, observed by the Association of Leaders of Local Civic Groups, resulting from faulty practice

Although the Act does not permit signing exclusivity agreements, in practice they are still used, as exemplified by the Institute of Meteorology and Water Management. 

The obliged bodies arbitrarily exclude data from the scope of public information. This refers e.g. to access to cartographic data without which it is often impossible to create new added values of public information. The Main Geodesist of Poland claimed that maps were not public information. Applicants can only have recourse to the law. 

The Central Repository of Public Information, which was supposed to be a collection of raw data, modelled on http://data.gov.uk/, does not exist. Therefore, entities do not supply it with any information.

The interest in using new procedures is slight. Random checks in 12 large offices revealed that only in 4 of them,  5 to 10 requests for re-use of public information were submitted throughout the year in each of these institutions. Moreover, only several of these requests actually pertained to re-use.

More about the Association of Leaders of Local Civic Groups

We are a non-governmental organization which is not financed from state funds and therefore has full independence in monitoring the activity of the public administration in Poland. Our donors are citizens, business, private foundations and foreign institutions. 

Our purpose is to make the Polish government at all levels responsible, open and sensitive to social needs, ready for dialogue and able to submit to control of the society which is aware of its rights.