It has long been unclear what fees a public authority should charge when it releases information in electronic form. For release on paper the situation is clear, with fixed fees, but for electronic information it has been up to each authority to decide the levels. The final report from the Open Data Inquiry tries to remedy this, and the consultation period ended on 29 April. I have had a look at the responses submitted by the official consultation bodies. I was also the one who put together the response from Civictech Sweden, even though the bulk of the text came from other people, of whom Magnus Kolsjö, Peter Jonriksson and Kristofer Sjöholm deserve a special mention. Only consultation responses from organisations that were invited to respond are published on the Government’s website, but Civictech’s voluntary response is available here.
The response from Civictech was fairly negative and can be summarised as:
- We do not think the proposal complies with the Open Data Directive, which is its foundation
- It is an inquiry that works almost exclusively from a legal perspective, and the lack of knowledge about how the technology works is obvious
- It has aimed for a set of rules that looks clear (but does not succeed), yet it has completely forgotten the effects that openness is meant to bring about and what they are worth
My summary of all the responses is available in a public Google Drive document for anyone interested.
From here on, the consultation will be handled by the Ministry of Finance, since it is primarily an economic question. That makes me a little worried, as I do not think it is primarily an economic question. It is a question of democracy and transparency, and the size of the fees can either support or counteract this. There is an obvious risk that this perspective will be sidelined when the Ministry of Finance takes over, but I hope I am wrong. Now over to the consultation bodies’ responses.
The only consultation bodies that do not represent the public sector are connected to journalism (with the exception of Ung Media Sverige AB). All of those responses are well written and balanced, but it is still rather remarkable. Beyond that, the whole of civil society, which the Government has as a focus area for its commitment within the Open Government Partnership (OGP), is completely missing.
The official consultation bodies have a few clear features in common, which I describe, and there are also some responses that identify interesting effects and points of view that others have missed, which I highlight at the end.
Common features of the consultation responses
A common thread is that the consultation bodies are pleased with the inquiry’s aim of making fees uniform and predictable. Values of democracy and transparency are raised far too seldom in the responses.
Some responses link their reasoning to the underlying Open Data Directive, but far too few. DIGG is one of those that do, arguing for free access as a basic principle, and Energimarknadsinspektionen (the Swedish Energy Markets Inspectorate) reasons along similar lines in a well-written response. DIGG’s response is worth reading in full. Civictech Sweden’s consultation response has this at the core of its argument: it is doubtful whether the inquiry’s proposal complies with the directive here. The responses from organisations connected to journalism also argue from this perspective, which seems reasonable. Some responses bring up the cost of handling an invoice (SEK 500–700 each according to Försvarsmakten, the Swedish Armed Forces) and point out that it is unreasonable to require that fees always be charged.
Several responses advise against making it a requirement to charge fees for electronic release. ESV (the Swedish National Financial Management Authority) has some good wording on this, which can be found in my summary of all the responses. They do not believe the proposal will lead to predictability in the way the inquiry envisages, and I agree. The problem is that it is very hard to predict how many files a release may involve when someone requests information. SLU (the Swedish University of Agricultural Sciences) also has good thoughts and reasoning about fees and the aim of creating as much openness and access to information as possible.
Several consultation bodies point out that a ”file” is a problematic measure to use, since the content can vary greatly from case to case. Fees may not be charged for confidentiality review, which can have consequences if the number of requests increases. The inquiry itself also describes problems with basing fees on the number of files but still chooses that route. Several responses, however, consider the file a suitable basis for calculating fees. My assessment is that these responses are on the whole less well thought through than the negative ones. It is easier to agree with someone’s analysis than to argue against it with well-founded arguments, especially if you do not have much knowledge of the field.
The Swedish Police notes that it may be financially advantageous to request an entire database (which can be delivered as a single file) instead of requesting the parts of it you are actually interested in (which risk generating several files). There is a real risk that this will leave authorities with significant burdens reviewing information before releasing official documents, and no fee may be charged for that. A clear example of how the ”file” as a unit of measure risks backfiring.
Several consultation bodies believe that the public sector should become better at managing its information, and lower fees are an incentive to do so. The idea is that requests are avoided through greater openness, or that they become easier to answer because the systems support this better.
Several responses raise the question of whether it is a good idea to have two different procedures for appeals depending on whether the release is electronic or physical.
Another common feature of the responses is that it is difficult to judge which type of release is involved (release of official documents under the principle of public access, or some other release of information), and that this will lead to difficult judgements and arbitrariness.
FOI (the Swedish Defence Research Agency) and Försvarets radioanstalt (the National Defence Radio Establishment) have interesting and important thoughts on the challenges of digital redaction. Here it is noticeable that the proposal was drawn up by lawyers and that practical knowledge and insight were lacking. The guidance ”Klassa för IoT” (Classifying for IoT) has a really interesting appendix on de-identification of information that more people should take on board. It is not only applicable to IoT and ought to be raised to a more general level.
Individual responses worth highlighting
The County Administrative Boards appear to have coordinated their responses and state that review before release is a burdensome task today, and that it will get worse if it becomes easier to request documents. Fees per page currently mean that requests are limited to keep costs down. At the same time, they point out that using the file to calculate fees risks having major consequences for those requesting information. So this is a proposal that will have strange consequences.
Tillväxtverket (the Swedish Agency for Economic and Regional Growth) has no comments on the proposal. That also means it has no comments on how it affects businesses’ access to information from the public sector. I find that a little surprising, but perhaps I have misunderstood its remit?
Havs- och vattenmyndigheten (the Swedish Agency for Marine and Water Management) points out that it has long advocated more open data and highlights a number of problems related to making information available that need to be solved.
Försäkringskassan (the Swedish Social Insurance Agency) seems to have completely misunderstood the inquiry and says that the proposal means fees will be voluntary when they are mandatory.
Naturvårdsverket’s (the Swedish Environmental Protection Agency’s) response is uncharacteristically brief, lacks analysis and simply endorses the inquiry’s proposal. Surprising from an authority with a tradition of being a driving force on openness.
Riksarkivet (the National Archives of Sweden) notes that the proposal assumes that releasing documents is a small part of authorities’ operations, but for the RA it is a core task, and as the proposal stands it will lead to major challenges for the authority.
Ung Media Sverige AB argues that it may be cheaper to release more information than was requested if reviewing it is simple.
Åklagarmyndigheten (the Swedish Prosecution Authority) makes several interesting points and highlights challenges with classified information and release.
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