Finding The ‘Rights’ Balance:

How access to public information and open data complement each other

by Renato Berrino Malaccorto, Research Manager, Open Data Charter (ODC)

Photo by Tingey Injury Law Firm on Unsplash

Access to public information is internationally understood as a fundamental human right (for example, the United Nations Human Rights Committee recognizes it in its general comments on article 19 of the Universal Declaration of Human Rights when analyzing freedom of expression ). The fundament is that it allows citizens and interested parties to be informed and exercise other rights, functioning as a key right.

There are regulations in different countries and regions that have contemplated and regulated it for many years. In many cases, it is even included in the Constitutions, as is the case of Spain or Portugal. In Sweden, for example, the right was recognized for centuries, but most European countries have regulated it in the last 50 years, while in Latin America it has been legislated around 30 years ago, but has had a deeper development in the last decade.

According to the Organization of American States (OAS), the Economic Commission for Latin America and the Caribbean (ECLAC), and various compared regulations, the Right of Access to Public Information is understood as: “the ability to search, access, freely request, receive, copy, analyze, reprocess, reuse and redistribute the information under the custody of the Public Authority.”

In recent years, with the development of Information and Communication Technologies (ICTs) and digitalization, the way in which information is produced, published and shared has changed, becoming mostly digital data. The changes range from the way in which data is produced, published and safeguarded, to how citizens access and interact with it. In this context, we find the importance of Open Data as a superior instance in the digital era, understanding it as digital data that is made available with the necessary technical and legal characteristics so that it can be used, reused and redistributed freely by anyone, anytime, anywhere. Next, we will analyze the link between Access regulations and Open Data, but it is important to mention at this instance that where there are no regulations on open data yet, the Right of Access framework is what shapes these policies.

Proactive transparency and open data

The Right of Access to Public Information is, today, intrinsically linked to the concept of Open Data. Various compared regulations and the Inter-American Model Law 2.0 on Access to Public Information establish that access to information must be in open data format, incorporating it as the appropriate way to exercise the right, within the framework of proactive transparency

These regulations contain provisions that regulate the duty of States to publish certain categories of information without a request for information (what is known as passive transparency). Article 5 of the Inter-American Model Law on Access to Information establishes the obligation to “proactively disseminate the key Information established in this Law, without a request for this Information”. In its second paragraph, it also establishes that “every obligated subject must allow the widest access to Information, in such a way that it allows its interoperability in an open data format, as well as determine the strategies for the identification, generation, publication organization and dissemination of that Information, thus allowing its easy reuse by society.” The model law also establishes the minimum information that must be proactively published (information on the obligated subject, information on officials, financial information, citizen participation mechanisms, and needs of specific groups). In addition, it establishes obligations, publication schemes, and the obligation to guarantee and provide applicants with access, in the easiest way possible, to all previously disclosed documents.

Proactive transparency obligations are found in many legal systems around the world, and the incorporation of the concept of open data often occurs in the Law on Access to Information itself (this is the case of the City of Buenos Aires or Colombia), or in complementary regulations. For example, in Spain, which has a Access to Public Information Law, we find the Royal Decree-Law 24/2021, where several European directives are transposed, among which was the Directive (EU) 2019/1024 related to open data and the reuse of information public sector.

The proactive publication of information in open data format allows improvements in various aspects. On one hand, it avoids the expense of resources in answering requests for access to information, when it is information that must be open by default, and it saves time for the citizen as they don’t need to make the request. Working on open data implies, in addition to openness, improvements in internal processes, since work is being done on the production and normalization of data with standards, update periods, etc. Likewise, from the organization, and within the framework of the Charter, we talk about the need for data to be open with a purpose: openness strengthens citizen participation, public policies, public management and therefore democratic governance. Open data contributes to innovation and to tackling the biggest public challenges of this century. Openness empowers citizens to participate both in decision-making and in the monitoring of public policies.

Proactive data opening: impact cases

In recent times, we have seen more cases of proactive data publication that have been essential to addressing various challenges: from the monitoring of public purchases by the State to information related to policies to address the COVID-19 pandemic. The Open Data Charter has worked on projects and cases in which openness has been useful in this sense, both for its accountability value and for the reuse and added value that it gives citizens, as well as for its importance for the public administration itself to make evidence-based public policy decisions. These projects include:

• The implementation of the Open Up Guide to Advance Climate Action. The case of Uruguay is a good example of openness and impact. Not only were 30 new data sets opened in the climate change data catalog, but the reuse of these data was also promoted through Open Data Contests for Climate Action. In addition, the government has generated the “Nationally Determined Contribution Progress Viewer and other related indicators”, fed thanks to the opening of data, in which citizens can consult the objectives and degrees of progress. It is a tool also used by the public administration itself to monitor progress and generate evidence-based public policies.
• The implementation of the Open Up Guide to combat Corruption. Different categories of datasets to fight corruption were opened, understanding and respecting each regulatory context. Greater transparency is greater efficiency in resources and has a direct correlation in improving citizens life quality. The Guide has been successfully implemented in Ecuador and Uzbekistan, for example.
• ODC worked with the City of Buenos Aires in the opening of care indicators, within the framework of the Gender Indicators System. This evidence is key to understanding the needs on the topic and planning programs accordingly. Here you can access the platform and here the report.

International contexts

There are various international organizations, rankings and studies that recognize, value, measure and promote the Right of Access to Information and the State of Data Openness.

For example, the Open Government Partnership (OGP) promotes collaborative work between government and civil society to generate public policy commitments. Within the pillars of access to information and open data we find various initiatives. Some examples are: transparency in finance, access to public information on public procurement, science and technology, legislative transparency, agricultural transparency, open budgets, open contracting and transparency in public infrastructure.

Another initiative, the Global Right to Information Rating (RTI), seeks to establish parameters to analyze the robustness of the regulatory text on Access to Public Information, based on 7 dimensions: Right of Access, Scope, Application Procedures, Exceptions and limits, Appeals, Sanctions and Protections and Promotional Measures. According to the Index, Access to Public Information laws are present in 136 countries.

It is also important to take into consideration the results of the Global Data Barometer (GDB), a study that “evaluates countries around the world through a set of comparative metrics focused on data for the public good.” It has general modules (governance, capacities), and thematic modules (climate change, land, public procurement, etc.). Both the general data opening status of each country and the specific topics can be consulted. For our article it is interesting to highlight that the GDB, in relation to Access to Public Information, has two performance indicators, beyond the existence of the regulations. Many times the regulatory frameworks are developed, but it is key to understand how they are implemented. The indicators proposed by the GDB are: within governance, understanding the performance of the right of access to information; and another, within the data availability, which allows us to measure to what extent detailed information on the performance of the right of access to public information is available as open data.

Access to information and open data: complementary differences

Based on what we’ve shared throughout this article, though Access to Public Information and Open Data are different institutes from the other, their differences are complementary and come to reinforce their final objectives: access and promotion of other rights, the improvement of the functioning of public institutions, and the empowerment of citizens. In her essay “Rights-Based and Tech-Driven: Open Data, Freedom of Information, and the Future of Government Transparency”, Beth Noveck, from the GovLab, mentions some of these complementary differences:

• Open data policies propose that governments publish data proactively, by default. Access to Information originally proposed the need for requests and a concept of passive transparency. As we have seen, this paradigm is changing in the new Access to Public Information laws.
• Access to Information has a legislative tradition of many years, while Open Data policies emerge as a powerful tool to address challenges in the digital age, technology-driven.
• While both institutes address access and sharing of information, the open data policy approach prioritizes participation (as stated in the Charter’s principles, for citizen participation and innovation), rather than a litigation component.
• In terms of citizen engagement, we also went from a concept of monitoring and control only, to one of collaboration, in which citizens get involved and use data to jointly address challenges and help make better evidence-based decisions. While traditional Access to Information is mainly based on understanding and monitoring what the government has done, open data policies have a forward-looking and collaborative component. It goes from a paradigm of unidirectional information flow, to a bidirectional one.
• Access to Information is more focused on the “what” to publish, and the Open Data initiatives come to complement, in addition, with “how”.
• Access to Information in its conception was intended mainly for journalists and civil society organizations, while Open Data also finds Universities, Research Institutes, digital activists and the private sector among its users. There is an idea of ​​generating added value to that data.

Transparency and open data have certainly evolved to complement each other. They help to achieve good governance, foster citizen confidence, and are a key to the exercise and access to other fundamental human rights. Through the opening of data we can access improvements in the functioning of the State, in the provision of public services, and even to address specific challenges of the current global context.

Based on the experience and the cases surveyed, we believe that the Access to Public Information and Open Data agenda advances towards the consolidation of Access to Public Information regulations that include Open Data as the ideal format to promote transparency. In addition, different governments are advancing directly in specific Open Data policies, strategies and regulations.

We also believe that the current added value is to understand the importance of Open Data in specific thematic agendas to face public challenges (such as in the fight against corruption or in action against climate change). Another key axis to which we will have to pay attention has to do with the fact that this production and availability of data and information brings to the table the need to discuss the responsible management of it and the protection of personal and/or sensitive data. We will address the balance between these rights in a future blog.

We at the Open Data Charter continue to work collaboratively with various actors promoting the benefits and understanding the challenges that these policies present to us, with the aim of achieving more open and fair societies, and that this translates into an improvement in the quality of life of all people.

Let’s keep in touch discussing data and rights.

Renato Berrino Malaccorto is The Open Data Charter’s Research Manager. You can find him on Twitter: @Renatombm.

If you would like to join our network of over 170 governments and civil society organizations by adopting the international Open Data Charter principles read more here or e-mail us at info@opendatacharter.org.