ISSN 1313-6496

Proactive Publication of Information

The main principle of the access to information legislation is that all information generated and held by public institutions which is not subject to restrictions, i.e. access to it would not harm any common or personal interest, should be accessible. The accessibility of the information not subject to any restrictions means its publication, and the latter is most effective when using the new technologies, i.e. in the Internet.

The principle of proactive publication

One of the main elements of the access to information legislation is the principle that the public bodies shall pursue a policy of publishing information of common interest without  the need for an individual request, the so called policy of proactive publication.

The Convention on Access to Official Documents of the Council of Europe (the Convention), adopted in November 28, 2008, determines the active transparency as one of the principles of the right of access. Article 10 of the Convention gives a broad formulation of the obligation for executive bodies, but, nevertheless, reflects the developing legislation in the member states, namely:

Article 10 – Documents[1] made public at the initiative of the public authorities

At its own initiative and where appropriate, a public authority shall take the necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest.[2]

The Explanatory Report to the Convention[3] clarifies what “official documents of general interest” are which shall be made public without the need for individual requests, namely: documents on structures, staff, budget, activities, rules, policies, decisions, delegation of authority, information about the right of access and how to request official documents, as well as any other information of public interest.

All these documents ensuring that citizens are able to form an opinion on the authorities that govern them and to become involved in the decision making process should be published at the initiative of the public authorities. 

Legal regulation of the principle of proactive publication

The policies of proactive publication of information by public bodies are regulated by the access to information laws, but not only.

The Explanatory Report to the Convention gives an advice to the member-states to establish national rules for proactive publication and thus encourage the policy of making public information accessible without the need for individual requests.  

With the adoption of the Bulgarian Access to Public Information Act in 2000, the obligations for promulgation, announcement, and publication of specific categories of information were established, namely in the provisions of Art. 12, Para. 1 and Para. 2, Art.14, Art. 15, and Art. 16. The categories of information of common interest, subject to promulgation by all bodies obliged under the law were listed: normative acts, other official public information provided by law or by a decision of the authority;[4] announcement by all authorities – information which could prevent some threat to the citizens' life, health or security, or to their property; disproves previously disseminated incorrect information that affects important social interests; is of public interest; must be prepared and released by virtue of law; and publication by the executive bodies: description of powers, and data on the organizational structure, the functions and the responsibilities of the administration; list of acts issued within the powers; contact information; summary of data related to the APIA implementation.

Elements of the legal regulation of the proactive publication

 

Equality of obliged bodies

 

Although all bodies of power maintain Internet sites and publish information about their powers, functions, structure, acts, strategies, and activities, the legal obligation for proactive publication of information under the APIA is for the executive power bodies.

The Judiciary Act establishes the obligations for the courts and the Supreme Judicial Council to publish information related to their justice administering activities and the administration of the judicial power. The Judiciary Act provides in detail the time frames within which information shall be published in the Internet.

 

The Regulations for the Organization and Activities of the National Assembly[5] establish the rules for the publication in the Internet of specific categories of information, related to the legislative process.

 

The obligation for proactive publication by the bodies under Art. 3, Para.2, item 1, i.e. “bodies, subject to the public law, other than those under sub-art. 1, including public law organizations ” is not yet regulated.[6]

 

The proactive publication practices show that different bodies of power fulfill the requirements of Art. 15 and Art 15a of the APIA, regardless of the fact that they affect only the executive power bodies.

 

The draft law on amendments to the APIA,[7] presented in the autumn of 2014, would increase the obligations of the heads of administrative structures and the “public sector bodies”[8] with regard to the publication of information resources and data bases in open formats in the Internet (Art.15b). However, the “public sector bodies” are not obliged under Art. 15 and 15a.

The Internet rule

The Explanatory Report to the Council of Europe Convention on Access to Official Documents, in its paragraph 72 related to Art. 10 of the Convention, encourages public authorities to use different forms of proactive publication, including the use of new information technologies and publicly accessible Internet sites, together with the traditional reading rooms and libraries of the institutions.

 

Before the Internet era, the approach embedded in the access to information legislation with regard to the important for the society information generated by public bodies was that it shall be promulgated, announced, or published.  

 

In the XXI century, the standard for publishing information of importance to the society is complemented by the publication in the Internet. Currently, the so called “Internet clause” is introduced in the access to information legislation. States with older legislation are amending it or are adopting new laws for electronic access to information, containing rules for publication in the Internet sites of public authorities.

 

The “Internet clause” was adopted in the Bulgarian Access to Public Information Act with the amendments as of 2008.[9]

 

Categories of information of common interest

The proactive publication of information is among the most important elements of the right of access to information. Its significance for the exercise of that right has been increasing and the standards in the area have been gradually set. In most of the access to information laws adopted during the past decade, obligations for online publication of specific categories of information have been established. A review of this legislation shows that some categories of information mandatory for online publication are common.[10] For instance, information about the powers and the normative acts of the public authorities, about their structure and functions, their activities, signed contracts, the transparency of the decision making process are mandatory for publication under most of the access to information laws.   

     

During the past several years, within the global Open Government Partnership initiative, Open Government Standards were developed and widely discussed.[11] An important part of these standards are the “Standards for Proactive Publication of Information,” namely the online publication of:

• Institutional information – legal basis of the institution, internal regulations, functions and powers;
• Organizational information – organizational structure, information on personnel, and the names and contact information of public officials;
• Operational information – strategies and plans, policies, activities, procedures, reports, and assessment of performance – including factual analysis and other documents and data on the base of which policies are being formulated;
• Decisions and acts – including data and documents which prove the necessity of these decisions and acts;
• Public services information – description of the services provided by the authority, manuals and guidelines, forms and information about the fees and the time periods for their provision;
• Budget information – budget procedure, draft budget, budget, financial reports, including information about the salaries within the public institution, auditor’s reports;
• Open meetings information – the topic, the time, the agenda, information about public discussions and the conditions for participation in them;
• Decision-making and public participation – information about the decision-making procedures, including the mechanisms for public consultation and participation in the process;
• Subsidies information – about subsidized persons, about the purposes of the subsidies, the amounts paid and the state of execution;
• Public procurement information – about the tender procedure, the selection criteria, the results of the tender, the contracts signed, and execution reports;
• Information volumes and resources – description of the information resources, indexes, lists of public registers, description of public registers, the access procedure, including online registers and databases;
• Information about the information generated and held by the information – register of the documents/information, generated and held;
• Information about the publications issued by the institution, including information about free and paid publications;
• Information about the right to information:
• Information on the right of access to information and how to request information, including contact information for the responsible person in each public body. [12]

A lot of the categories of information listed above as standards in the area are mandatory for online publication under the Bulgarian legislation as well, although not specified in such details. For instance, the institutional, organizational, and operational information, the administrative acts, information about the exercise of the right of access to information and about the information resources, registers, and data bases is mandatory for publication in the institutional Internet sites under Art. 15 and Art. 15a of the Access to Public Information Act (APIA) after its 2008 amendments.

 

The law, however, does not specify how often the update of the publications should be done, neither what the content of some broadly formulated categories should be. Thus, the practices of proactive publication are extremely diverse.  

 

The list of the acts[13] issued within the scope of the powers of the administrative structures is subject to mandatory publication under Art. 15, Para. 1, Item 2 of the APIA since 2000. The online publication of that list is obligatory since the 2008 amendments to the Access to Public Information Act. The 2008 amendments have elucidated which acts of the authorities should be proactively published, namely “a structured aggregation of all normative, general, and individual administrative acts, issued by the respective administrative body.”[14]

 

The issue about the availability of a unified portal of all administrative acts remains legally unsolved. The initial intention of the legislators as of 2000 for the establishment of a Register of Administrative Structures and Administrative Acts has not been fulfilled. In 2002, the obligation for publication of administrative acts in that Register was repealed. Only the obligation for publication of the acts which establish regulatory regimes remained. Currently, the data base is titled Administrative Register and does not contain administrative acts, except for these related to the regulatory regimes.[15] 

 

The decisions of the municipal councils should be announced “through the Internet site of the municipality and by other appropriate means” pursuant to Art. 22, Para 2 of the amended Local Self-government and Local Administration Act (SG, issue 69 as of 2006).  

 

The proactive disclosure of the draft budget, the budget, and the draft financial reports and the financial reports is regulated by the Public Finance Law.[16]

 

The Electronic Government Act (EGA)[17]  established the obligation for the electronic services providers to announce on their Internet sites information about the services they provide (Art. 10 of the EGA). Besides, they have an obligation to provide unimpeded, direct, and constant access of the customers of their services to information about the contacts, the control bodies, the possibilities for filing appeals, etc., the appealing procedure, the value of the service and the ways of payment, the technical description of the service, the way the issued act could be accessed, the technical means for finding and removing errors and the languages in which the service could be used (Art. 13 of the EGA).

 

The amendments to the Public Procurement Act as of 2014,[18] introduced in Chapter Three “Buyer's Profile” Art.22b, 22c and 22d, establish obligations for publication of the complete documentation related to a public procurement on the Internet site of the contracting authority or on another Internet address, as well as the obligation for connectivity with this information with the one published in the Public Procurements Register which is a serious step towards transparency in the area and responds to the increased public interest in that type of information.

 

Flexible approach towards the categories of information to be published

Apparently, the list of categories of information subject to publication under the law could not be exhaustive. Increased interest towards specific type of information may emerge as a result of ongoing debates, crises, and other public issues.

The states whose legislation establishes the institution of the Information Commissioner  have that independent, centralized, specialized body entitled to create model publication schemes and to approve of the publication schemes of specific institutions. Thus, on one hand, the possibility for consideration of the specifics of the generated and held information within the powers of the institution is increased. On the other hand, an external control is exercised over the publication schemes.     

A possible legislative solution for deciding which information should be additionally published is the consideration of the extent to which it is sought by requests. Such an approach is offered in the Council of Europe Convention (Art. 10, item 73). A similar approach is embedded in the laws of Mexico, Slovenia, USA,[19] etc.      

 

Extension of the categories of information of common interest through special laws

Besides the obligation for maintaining an Internet site and providing access to the information which is uploaded in it, the law should require the publication of information about the public authority that is of common interest to the people – how the citizen could contact the institution; what kind of services could they obtain; how the institution fulfills its powers and functions; information which helps the visitor to form an opinion about the activities of the institution; how the public funds are spent; how to obtain information from that authority.

 

The bill for amendments to the APIA[20] extends the categories of information listed in Art. 15 from 4 to 14, gives the possibility for a dynamic increase of these categories in its item 14: “other information designated by law,” and creates the obligation for the heads of administrative structures to review and update the lists of categories for publication annually (Art.15a, Para. 3).

 

The process of review and update of the lists of categories of information subject to publication should also follow specific approaches and is subject to control. This condition has not been provided by the currently proposed bill.

In a number of states, which had access to information legislation before 1990, the obligations for proactive disclosure have been extended not only by the access to information laws, but also by specific laws introducing obligations for publication of specific categories of information – contracts, budget transparency, or developing the so called guided transparency. Recently, this process of enhancing transparency has been specifically studied and systematized.[21]        

The development and maintaining of public registers in the Internet is another precondition for the development of the guided transparency.

A number of laws regulate the online maintaining of public registers. A review of these obligations was made by AIP in 2011 and the results served as a basis for the launch of the Public Registers portal.[22]

 

2.3.6. Determining the ways, channels, formats of publication, metadata of published information

The standards for the publication of specific categories of information which is of public interest require that there are rules for the update of the information and its free obtaining. For some categories of information, public bodies are obliged to seek other channels of dissemination when there is a risk to the life, health and property of citizens. In such cases, an additional obligation is established for the administration to inform the citizens as fast as possible by all appropriate means.

There are such provisions in Art. 14 of the Bulgarian Access to Public Information Act and the Environmental Protection Act, without details for time frames and specific obligations.

The interest towards the free use of whole data sets and data bases, generated by the public bodies, for purposes different from the one of their creation, increases with the development of information technologies.  

 

In 2003, the European Community adopted the Directive on the Re-use of Public Sector Information 2003/98/EC.

 

In 2013, the Directive was revised and the process of its introduction in the Access to Public Information Act is ongoing, as it was first transposed via this Act in 2007.

 

The purpose of the revisions of the Directive on the Re-use of Public Sector Information is to provide for a clear obligation of the Member States to permit the re-use of all available documents, unless the access is restricted or excluded pursuant to the national access to documents regulations and in compliance with the other exemptions provided by the Directive.

With the purpose of facilitating the re-use, the Directive provides that when possible and appropriate, public sector bodies should make documents available in an open and machine-readable formats. The new Directive introduces a few important principles which are significant for the legislation on access to and free use of information.

The data sets maintained by public sector bodies  should contain:

A. Description of the information contained in data sets and data bases, its thoroughness and coherence. The current text of the law establishes an obligation for a “description of data bases and data sets” and the “procedure for accessing” them. The Directive introduces the requirement for the provision of data, together with their metadata, at the best level of precision and granularity, in a format that ensures interoperability, in order to facilitate their re-use.

B. Coherence of the published data and their relativity with other data.

C. Transparency of the criteria for formulation of charges for access to data sets, registers, etc.

2.3.7. Rules for update of the information and its availability

The legal regulation of the proactive publication of up-to-date information introduces rules and time frames for its publication.

The Bulgarian Access to Public Information Act establishes the obligation for regular update of the published information.

We recommend that a specific obligation would be introduced in the text of the law that would determine the time frames for publication of up-to-date information, time frames for its accessibility in the Internet, and the procedure for archiving it. Furthermore, we recommend transparency with regard to the update of the information similar to the mandatory time frames for publication under the Judiciary Act.

In the course of discussions within the working group drafting the law on amendments to the APIA in 2014, AIP presented a draft list of categories of information subject to online publication which contains proposals for the time frames within which the information to be available in the Internet.[23] The flexible approach attained by the working group with regard to the list is a good solution, although no rules for up-to-date publication of information were written down. The making of rules was left to the heads of administrative structures who would adopt the lists of categories of information to be published online. We believe that the law should establish the time frames for publishing the categories of information under Art. 14, items 1-13. This would give reference point to the heads of administrative structures within the executive power with regard to the specific categories of information to be included in the lists which would be approved annually.

The same is valid for the update of the information subject to publication in the sections “Access to Information.”     

 2.3.8. Accessibility of the content on the Internet sites

Public bodies, which are obliged to publish information in the Internet, should undertake measures to make that information accessible on their Internet sites by providing a unique address to it, automatic redirection to the new address if changed, accessibility of the addresses of the published information to the search engines.

2.3.9. Equal opportunities for access to the Internet sites  

The Art. 26, Para 4 of the effective law stipulates among the forms of access to information provision  that disabled persons, may ask access in a form that corresponds to their ability to communicate. However, such obligations are not pertinent to the proactive publication of information. The most recent amendments to the Electronic Government Act formulate as an aim “accessibility of the electronic administrative services, including for disabled persons.”[24] When we have such an aim set with regard to the e-services, i.e. a part of the work of the administration, this principle should be applied with regard to the publication of information about the activities of the public body in the Internet.

 

2.3.10.  Assistance to people without technical skills

The access to information laws require equality of requestors. It should be considered that the publication in the Internet does not replace the obligation of the public bodies to provide access to information to people with no technical skills to work with a PC and in the Internet. The required by the APIA reading rooms in the public bodies are a necessary condition, but should be complemented with rules for assisting the requestors.

2.4. Coordination and control over the active transparency

The selection of information which should be published in the Internet should not be left only to the discretion of the administration. This issue could be resolved by regulation of the categories of information mandatory for publication by all obliged bodies and by harmonization of the publications. Besides the legal regulation, this requires the functioning of a centralized specialized body to oversee the implementation of the law, or the entitling of an existing body to the coordination and control.