1. INTRODUCTION

The European Union Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information provides a legal framework for the conditions governing the re-use of public sector information in order to ensure fair, proportionate and non-discriminatory conditions for the re-use of such information. The Directive does not however state how a Member State should implement the framework neither does it prevent a Member State going beyond the minimum standards established in the Directive, thus allowing for more extensive re-use of public sector information. The European Commission public sector information portal provides information on the Directive and the implementation progress within the European Union as shown in DIAGRAM 1.

The Organisation for Economic Co-operation and Development (OECD) Recommendations of the Council for Enhanced Access and More Effective Use of Public Sector Information [C(2008)36] has the aim to increase returns on public investments in public sector information and increase economic 162and social benefits from better access and wider use and re-use. The OECD recommendations do not state how a Member State should implement the framework.

A key difference between the EU PSI Re-use Directive and the OECD PSI Principles is that the former is mandatory as the EU Member States are required to implement the framework where as the latter are recommendations that require OECD Member States to take account of the PSI principles when establishing or reviewing their policies regarding access and use of public sector information.

By the summer of 2008 all EU27 Member States had transposed the PSI Re-use Directive into national law. By the spring of 2009 the European Commission had initiated infringement proceedings against three Member States for not implementing the Directive correctly – Italy, Poland and Sweden.

The OECD PSI principles benefited from the experiences of implementing the EU PSI Re-use Directive and as a result the conditions set down go beyond those set down in the EU PSI re-use Directive.

Of the EU27 Member States 19 Member States are Member States of the OECD (70%) as shown in TABLE 1. TABLE 1 also shows that 39 countries have signed up (via the EU, the OECD or both) to implementing a policy related to maximising the potential from the investment in public sector information. The majority of the EU27 Member States had completed the transposition of the PSI Re-use Directive by the time the OECD PSI Policy principles had been ratified in June 2008. However as a result of the European Commission infringement proceedings Italy, Poland and Sweden are reviewing their PSI policy and as such the OECD PSI Policy Principles now also apply.

The 39 countries identified in Table 1 cover a wide range of GDPs, government structures, population sizes, geographic areas and geographic regions across the world. Many of the countries operate in a mixed economy where both the public and private sectors openly trade in the information market place and as such compete with each other as well as others within the same sector. For example one part of the public sector may compete with another part of the public sector.

A growing collection of evidence and information from these 39 countries that have implemented or are in the process of implementing the public sector re-use framework is 164substantial. For example the information contained within the European Public Sector Information Platform contains information accumulated over the past eight years – Diagram 2.

2. THE EVIDENCE – KNOWLEDGE BASE

The collected evidence base is now becoming sufficient such that it provides indicators as to the best practice to adopt when implementing public sector information policies – irrespective of the diversity of the countries from which the evidence has been collected. The evidence base also highlights the complexity of the subject as it embraces Governments, government administrations, society, a very large number of organisations and an even larger number of stakeholders that have an interest in public sector information. Even with this complexity the evidence points to the need for:

• Leadership
• Simplicity
• Openness
• Transparency
• Accountability.

when implementing the framework. Where these points have been addressed the evidence base shows that the framework functions as intended.

The findings of the European Commission 2008 public sector consultation that have been published indicate that there is a need for:

• Technical measures – for example standards
• Legal measures – for example removing opt outs
• Implementation and organisational measures – for example a Regulator
• Monitoring – for example annual accountability reports
• Guidance – for example a manual on how to implement the framework based on best practice. 165

These identified needs show that the re-use of public sector information framework is far more complex than one may first imagine.

3. PSI COMPLEXITY

As an example of the factors that need to be considered when implementing PSI Policy it is worth considering the term public sector! These two words would suggest it is one legal body but it is not! The public sector often for democratic reasons is layered. One has:

• Central or Federal government
• Regional or State government
• Fully self-governing or partial self governing autonomous regions
• Local government.

all of which are led by elected politicians. The political structure is supported by the public sector service delivery sectors for example:

• The Health sector
• The Law and order sector
• The Education sector
• The Social security sector
• The Regulatory sector
• Government owned public companies.

So does this matter?

Well YES if one considers leadership, implementation and enforcement.

If it is a central (federal) government body that leads can they enforce the law all across the public sector? If not then a regulator is needed that is external of the structure such as an Information Commissioner (Privacy, Freedom of Information), Competition Authority, Telecommunications regulator for example. In the future this may be extended to a regulator for spatial data infrastructures.

Who owns the intellectual property rights? One often finds these are related to the organisational layer in the public sector.

Is there one data and information policy that applies to all of the public sector? Does the policy cover the whole life cycle from initial creation through to archiving or disposal, that sets out all the ways the data maybe shared of which the re-use of public sector information is but one example of sharing and the INSPIRE Directive is yet another – spatial data infrastructure.

• Who defines what the public task is of a public body?
• How is a regulator going to ensure mission creep is not taking place?
• Whether the public task still needs to be done, as the world has moved on!

4. EUROPEAN BEST PRACTICE

So what good practice is appearing that demonstrates the effective implementation of the public sector information re-use framework that leads to an economic gain and as important a win-win 166situation for all stakeholders. That is implementing the policy that is cost-effective to both sides of the PSI supply-demand value chain.

A key aspect that leads towards successful implementation of public sector information policies within a Country is that the Government and the supporting government organisational infrastructure must operate transparently and be accountable.

Recognition by Government and the administration that public sector information is the fuel that enables the public sector to function and as such the data and information is a valuable asset that requires overall management and the implementation of procedures that ensure the public sector information is correctly utilised within the set of laws that apply to public sector information. For example in the European Union context:

• Data Privacy (Directive 95/46/EC & 2002/77/EC)
• Database protection (Directive 96/9/EC)
• Access to environmental information (Directive 2003/4/EC)
• Re-use of PSI (Directive 2003/98/EC – MS Compliance 1.07.05)
• Intellectual Property Rights (Directive 2004/48/EC – MS Compliance 29.04.06)
• INSPIRE (Directive 2007/2/EC – MS Compliant 15.05.09)
• EU Treaty – Article’s 81 & 82
• Transparency of Public Undertakings (Directive 2006/111/EC MS Compliance 19/12/06)(First Directive came into force in 1981)
• Public Procurement (Directives 93/8/EEC & 98/4/EC & 2004/17/EC, 93/87/EEC & 97/52/EC & 2004/18/EC. MS Compliance 31/01/2006)

Recognition by Government that a very large number of public sector bodies and public sector employees are involved with public sector information and that it is essential that the policies are simple and easy to implement and operate.

Recognition by Government that in many cases the public sector holds a monopoly position with respect to public sector information. However in some categories due to technological change and the skill sets that reside within society alternative data and information sets (substitute data sets) will appear if the government PSI policy is restrictive.

Recognition by Government that it is an integral part of society and as such is dependent on society providing many of the products and services that it needs to deliver its responsibilities and services. That is it is not a self-sustaining entity group but a dependent entity group.

4.1 LEADERSHIP – ONE RESPONSIBLE BODY

When implementing Public Sector Information policy Member States must identify one public sector body that has the responsibility and the ownership of all the PSI policies. The body must be near to the pinnacle of the Member States administrative structure, as it requires the ability to work horizontally across all of the public sector. The body does not have to regulate the policy which can be done by other regulators that already exist.

4.2 IMPLEMENTING LEGISLATION

When implementing the public sector re-use framework there should be a clear separation of the re-use framework from the access framework law. This has been particularly advantageous 167to those countries that have a written constitution that embodies the right of access to information and re-dress processes. Where this has been followed it has led to:

• A smoother transition and more sustainable when passing through the Parliamentary processes that make and amend laws.
• The objective remains clear to all parties.
• It is simpler to implement by public bodies.

4.3 CHARGES

The public sector information re-use framework should not be used as a mechanism to finance each public sector body and its public task. If it is cost effective to do so no charge should be made. Alternatively the cost of supplying and supporting the public sector information re-use maybe adopted but it must be open, transparent, pre-disclosed and published and be non-discriminatory. It is clear from the evidence that downstream commercial re-users that have developed a market for their products and services would rather pay the cost of delivery for the information supplied as the charge combined with the terms and conditions are a form of contract, which reduces risk and provides a level of sustainability to the re-user as well as other downstream re-users in the value chain.

4.4 LICENSING

Implement a standard licence for all of the public sector and make it simple to use – for example Click-Use-Licences or Creative Commons licence is another option. Once a standard licence has been introduced and used to then move towards removing the standard licence altogether.

4.5 EXCLUSIVE ARRANGEMENTS

Avoid implementing exclusive arrangements that restrict down-stream use. Where exclusive arrangements exist these should be phased out over a defined time period. In the case of the European Union the grace period was five years and that ended on the 31 December 2008.

The first step in the process of opening up exclusive arrangements where they exist is to identify them and make them transparent.

4.6 EFFECTIVE RE-DRESS

Implement an effective re-dress system and empower a regulator to implement it and enforce the decisions. It is important that Political interference does not occur. The re-dress system must be level and equally apply to both sides of the supply-demand chain.

5. CONCLUSION

The evidence shows that those countries that have adopted some or all of the best practices identified have had the most impact when implementing the policies and on raising the awareness across the public sector.

The objective of this paper is to stimulate debate as to best practice to adopt that would lead to an improved implementation of the PSI policy whether that be for re-use or connected with the implementation of a spatial data infrastructure such as that set down in the INSPIRE Directive.