The activity of public sector entities often involves generation and use of extensive sets of data. These datasets serve to perform public tasks, but often have measurable economic value. Here we will examine the rules under which entities from outside the public sector can gain access to data of this type and use them to create new products and services.
Fundamental concepts—public sector information and re-use
The basic legal act in this area in Poland is the Act on Re-use of Public Sector Information of 25 February 2016, implementing the PSI Directive (Directive 2003/98/EC on the re-use of public sector information). The act recognises the right of every person to re-use public sector information.
Under the act, “public sector information” is defined as any content, or part thereof, whatever its medium, in particular written on paper or stored in electronic form or as a sound, visual or audiovisual recording, in the possession of public sector bodies listed in the act, referred to in the act as “obligated entities.”
The list of obligated entities includes, among others, units of the public finance sector, such as bodies of the central governmental administration and territorial governmental units. Public sector information may also, but not necessarily, constitute “public information”—“public sector information” is a broader concept.
Meanwhile, the act defines “re-use” as use by natural persons, legal persons and organisational units without legal personality (referred to in the act as “users”) of public sector information for commercial or non-commercial purposes other than the initial public purpose for which the information was produced. Additionally, in light of the act and the directive the re-use of information should be for the purpose of developing added-value products and services.
At first glance this definition of public sector information may seem quite broad. There are no restrictions provided as to the type of content or the medium. Obligated entities do not even have to hold the rights to the content. It is sufficient for the content to be in the entity’s possession, i.e. at its de facto disposal. The right of re-use is also framed broadly, to include basically any activity based on the use of public sector information not constituting the performance of public tasks. But a closer analysis of the act reveals that it provides for significant restrictions and exclusions.
Restrictions on the right of re-use
First, the act does not apply at all to public sector information in the possession of entities belonging to categories listed in Art. 4(1) of the act. In simple terms, these include public broadcasters, cultural institutions, and educational institutions (although certain types of libraries, museums and archives are excluded from this list). This restriction does not apply to public sector information that also constitutes public information subject to mandatory publication in the public information bulletin (Biuletyn Informacji Publicznej)—in that case, the act applies even to entities on the exclusion list.
Art. 4(2) excludes application of the act to public sector information for which access to or disclosure of the information requires a showing by users of a legal or factual interest under separate regulations. This approach is occasionally taken for example in the regulations governing certain types of registers and records.
A separate set of restrictions refers to the very right to re-use public sector information, under Art. 6 of the act. This right is restricted in the following instances (among others):
- Due to regulations on statutorily protected secrets
- Due to the privacy of a natural person or trade secrets (with exceptions)
- With respect to public sector information whose production by obligated entities does not fall within the scope of their legally defined public tasks
- With respect to public sector information the intellectual property rights to which referred to in the act (e.g. copyright and industrial property rights) are held by entities other than obligated entities (bearing in mind that not all public sector information is eligible at all to be the subject of such rights).
It should be remembered that restrictions or other rules affecting re-use of public sector information may also arise under acts other than the Act on Re-use of Public Sector Information. Furthermore, regulations on protection of personal data will still apply to public sector information if it constitutes personal data. In this respect, certain exceptions are provided for, relieving the data controller from informational obligations towards data subjects.
Rules for exercise of the right to re-use public sector information
Under the act, anyone has a right to re-use public sector information, and this right can be exercised under two procedures:
- By using information made available by obligated entities themselves (the non-application procedure) in the following sources:
- Biuletyn Informacji Publicznej (BIP)
- Central repository of public information (CRIP)
- Other IT systems, or
- By filing an application for re-use with the obligated entity—in specific instances indicated in the act, primarily when the information was not made available in BIP, CRIP or other system, or when the user seeks to use the information under conditions different from the ones specified in those sources.
The right to re-use public sector information is recognised as comprising three elements:
- The right to obtain an assessment on issuance of public sector information, and to obtain issuance of the information
- The right to determine the rules for re-use of public sector information
- The freedom to use such information for products or services.*
First, the user can seek from an obligated entity an assessment of whether given information can be subject to the right of re-use, and then seek issuance of the information. Such assessment is made in light of the restrictions discussed above, arising under the Act on Re-use of Public Sector Information or possibly under other acts.
In the context of issuance of information, it may be crucial in practice to obtain the information in a form enabling it to be processed automatically. This issue is addressed indirectly by Art. 10(1) of the act, under which, when providing information using ICT systems, obligated entities must apply the data formats and communication and encryption protocols specified in the executive regulation issued under Art. 18(1) of the Act on Digitalisation of Entities Performing Public Tasks of 17 February 2005.
If possible, the information should be provided in a machine-readable format along with metadata. Apart from this, obligated entities have no duty to generate or further process information at the user’s request, if it would involve disproportionate effort, beyond simple operations (Art. 10(2) of the Act on Re-use of Public Sector Information). Under the application procedure, it is also possible to seek access to public sector information on an ongoing, direct basis in real time (e.g. through an application programming interface).
Another essential element of this right is determination of the rules for re-use. This refers to the conditions and charges for re-use. Under the act, the general principle is that re-use should be unconditional and free of charge. Conditions and fees for re-use may be set (and sometimes must be set) only in specific instances foreseen in the act, and only to the extent specified there. The act specifies the permissible content of conditions as well as the maximum level of charges.
If an obligated entity provides access to public sector information via an ICT system (including BIP or CRIP), it must specify the conditions and charges applicable for re-use or indicate that there are no applicable conditions or charges. Under the act, there is a presumption that if public sector information is included in BIP or CRIP without information on the conditions for re-use, the information is deemed to be made available for re-use without conditions. This presumption does not apply to public sector information published in other systems; in that case, if no conditions are stated, the user must file an application in order to exercise the right to re-use the information.
The final integral part of the right of re-use is the freedom to use public sector information for development of products and services. Use may be subject to conditions and charges set by the obligated entity. As a rule, under the act users become bound by these conditions and fees through conclusion of a civil contract between the user and the obligated entity, through an offer procedure. If either party breaches that contract, the other party may be eligible to seek damages before the common courts.
Finally we should mention the work now underway at the government level on the draft of the new Act on Open Data and Re-use of Public Sector Information. This work follows adoption of the new Open Data Directive (Directive (EU) 2019/1024 on open data and the re-use of public sector information), which should be implemented into Polish law by 17 July 2021.
This bill is intended to replace the existing Act on Re-use of Public Sector Information. The draft is based partially on solutions included in the existing regulations, but also introduces many major changes. These include expansion of the set of obligated entities to include certain types of public undertakings, and introduction of new data categories (research data, dynamic data, and high-value datasets), along with specific rules for re-using such data. According to the agenda of the Council of Ministers, the bill is expected to be adopted by the government in the 1st quarter of 2021.
The article was previously published on newtech.law.
Rafał Kuchta, adwokat, New Technologies practice, Wardyński & Partners
* Division based on A. Piskorz-Ryń, Ponowne wykorzystanie informacji sektora publicznego. Zagadnienia administracyjnoprawne [Re-use of public sector information: Administrative-law issues] (Warsaw 2018), pp. 255 and following.