Algorithms of Fairness

Transparency of algorithms is not only important in the context of social media, but it is also an emerging problem in state-citizen relations. The ePaństwo Foundation requested the Minister of Justice for access to the algorithm based on which the Random Allocation of Judges System operates. The access was denied. Citizens were left without knowledge how a judge who decides on their case is chosen.

The Foundation received written information from the Minister stating that the requested information did not constitute public information, claiming that the algorithm is a part of a source code which — according to the Polish jurisprudence — cannot be accessed or reused.

See: ePaństwo Foundation is fighting to get an access to the source code of public software.

In our opinion, however, this algorithm is something much beyond information on how specific software operates. It decides on a situation of an individual citizen engaged in a court case.

Operation of the Random Allocation of Judges System (RAJS) mechanism is based on the algorithm which, as any other algorithm, is a step-by-step description of solving a problem or achieving a goal. According to the definition contained in the online version of the Oxford dictionary, it is a process or a set of rules to be followed in calculations or other problem-solving operations, especially by a computer. David Harel compares an algorithm with a cooking recipe. While components are output data, and a finished dish is the result, many activities such as selecting appropriate proportions at the right time or applied methods of thermal processing, etc. are just an algorithm. From life experience one can easily deduce that one mistake at the stage of preparing a dish can lead to failure in its taste and appearance.

The mentioned algorithm is, therefore, an expression of implementing the generally applicable laws and is a practical manifestation of the activities performed by the public authorities. The algorithm being the basis for assigning a case to a particular judge is in fact information about a sequence of activities that the RAJS designed for this purpose undertakes. Incidentally, it should be pointed out that the System was financed with public funds and copyrights are vested in the Polish State Treasury.

Understanding the algorithm allows to verify whether or not the provisions regarding random allocation of cases have been properly applied, especially that the System was created before December 28, 2017 — the day the regulation defining its activities was passed. It remains in the sphere of guesses to determine how the system works.

Lack of the possibility to verify the algorithm in terms of its compliance with the law and the principle of judicial independence means that citizens are deprived of a mechanism of checking practical implementation of laws which may also indirectly undermine trust in courts. Making the algorithm available is therefore justified by particularly important public interest.

The Foundation has filed a complaint to the Regional Administrative Court in Warsaw to reverse the Ministers’s refusal.