Petko Makes the Trail of True Open Data
Despite the National Assembly

The activist from Obshtestvo.bg is one of the independent developers
of electronic tools for fast and convenient connection between the state and the citizens

Stephan Anguelov

It all started in April 2014, when Petko Tsikov filed a request under the Access to Public Information Act (APIA) to the National Assembly. He demanded a copy of the web site data base. Petko is an activist from team of the nongovernmental organization Obshtestvo.bg who define themselves as “independent developers of electronic tools for fast and convenient connection between the state and the citizens.” Their goal is to achieve “complete openness, convenient accessibility, and comfort for the civil actions.”

That is why and with the help of the new technologies, Petko wants to retrieve information from the web site of the parliament and to create a new web site which will present the information in an easy-to-use, interactive, and interesting way.

For example, Petko wants to make the access to the transcripts from the discussions on draft laws much easier, meaning that you do not have to click 10 times in case you know exactly where on the web site the specific transcript is uploaded.

Petko wants to easily and quickly see the discussions held in former parliaments which are now “buried” and undiscoverable in the archives of the web site.

Petko wants to correlate the statements made by the members of the parliament and the way they voted in parliamentary commissions and in plenary sessions in past parliaments and now. 

Petko wants to easily compare the discussion on a given draft law in the previous parliament and today, especially if new amendments are now proposed. And the laws are often amended.

Petko wants to see what a member of parliament have said on a given draft law and how has he/she voted later. Petko wants to see what the same member of parliament had said in the past as well.

Petko wants everyone to be able to see these facts on the web site of the National Assembly with one-two click, not after hours of searching. Petko says that he and Obshtestvo.bg can to that if they have the information in the way it is in the web site data base.

Data base is something like a cabinet with a lot of drawers, each containing specific type of document. This cabinet with drawers makes each page of the documents easily discoverable. This means easily discoverable for computer programs which allow us to see and read the documents in the Internet.

The way the cabinet is structured is the structure of the data base. Its metadata are making the order out of the documents chaos. Petko needs to know how the cabinet is structured and how the drawers are opening and relating to each other.  

Petko knows that he has the right of access to that information and the right to re-use it. That is why Petko wants a copy of the structured data base.

But Petko wants too much…

Petko does not know how the web site data base of the Parliament is structured. No one, but the IT specialists of the Parliament know that. It could be easy to retrieve and copy the information which is not protected, but it could be hard. Petko hopes that if his request is really difficult, in the context of the good practices, the National Assembly will contact him and will try to find a decision acceptable for both sides.

But Petko hopes too much…

The National Assembly did not respond to the April 2014 request. With the assistance of the AIP, Petko filed a complaint in the court.

Unlawful! The silent refusal under the APIA is inadmissible. This was the decision of the Administrative Court – Sofia City, obligating the chief secretary of the National Assembly to process Petko’s request and issue an explicit written decision.

Petko hopes that this time he will obtain the information.

But Petko apparently is hoping too much.

According to the Chief Secretary of the National Assembly, Petko’s arguments “are not serious.”

Not serious!?

Since when such assessments are made in response to citizen’s requests in individual administrative acts, Petko does not know.

We do not know either.

The Chief Secretary thinks that Petko wants to “duplicate the web site of the National Assembly and take away part of its functions” and that is why his request “cannot be defined as a request for re-use of public sector information” under the APIA.

We do not know in what way Petko could “take away functions.” But we know that in order Petko to re-use any information, someone have to “duplicate” it and give him a copy. Furthermore, it seems that the Chief Secretary does not know that under the access to public information and the re-use of public sector information legislation, the grounds of the requestor are not related to the fact that the information is due.

Petko has the right of access to that information and the right to re-use it as he likes.

Seriously.
However, the Chief Secretary of the legislative body of the Republic of Bulgaria has other grounds in mind. According to him, the Copyright and Neighboring Rights Act is applicable in the case, because there is one directive that protects the data bases.

The idea is that the National Assembly “has taken the initiative to invest in the collection, verification and use of the content of these data bases.” Thus, as the carrier of the exclusive right of the creator of the data base, the National Assembly was not obliged to disclose the information.

This means, that the National Assembly holds the copyright on the speeches, the discussions, the draft laws and the laws…. On the Constitution… and the names and pictures of the members of the parliament… etc. that are published on its web site. Let’s hope it has not published foreign laws or constitutions, or international treaties….

It is interesting whose money has the National Assembly invested?  And is any of the information published on institutional web sites protected as its exclusive sui generisright?

No! Neither the National Assembly, nor any other public body can use such an argument not to disclose information. This is what another European directive says and the Access to Public Information Act.
Seriously.

Finally, the Chief Secretary of the National Assembly claims that the “exportation of the data base is a huge and complex task which requires processing of the information and efforts much bigger than the usual ones.” This is something than no one but the IT specialists in the Parliament could say.

We do not know if this statement is serious.

While Petko has the right to know.

Petko has a right to the information about the organization and activities of the legislature.

And he still hopes that if his request is very difficult, in the context of the good practices, the National Assembly will contact him and will try to find a decision acceptable for both sides.

With the assistance of AIP, Petko files another complaint.

And is hoping again.

The National Assembly did not contact Petko again and appeared in the court to defend their unclear position. 

The court did not understand Petko either. It dismissed his complaint.

It seems that the court did not understand the arguments of the National Assembly as well. But it tried to put them in order and find another explanation reaching the same conclusion. 

The court arguments went as: Petko was aware that he wanted access to data base which was copyright protected, which “was not exactly public sector information.” It was not public sector information, because it was not a document!?

What does a “document” mean according to the Directive on the Re-use of Public Sector Information. Article 2, Para. 3 says: “document”  means:
(a)   any  content  whatever  its  medium  (written  on  paper  or stored  in  electronic  form  or  as  a  sound,  visual  or  audio- visual  recording); (b)  any  part  of such  content….

This means that document is “any content.”

According to the court, “the peculiarity in the data base is the order of all materials which makes it different from information (documents) for re-use.”

We understand that for the court makes a difference between “put in order” and “content.” Petko and we have all seen books which have a description of the materials in their order in the beginning or the end and usually we call that “content.” This coincidence is present in other languages, official for the Directive as well. Apparently, this s not incident.

Apparently, the court has doubts. According to it, “there is a collision” between the right of Petko and “every citizen” for re-use of public sector information and the exclusive copyright of the National Assembly. “Collision” means a clash between two rights. And we would not doubt that if “put in order” (data base) and “content” (document) were different things, the rights stemming from them falling under different scopes of protection.

Apparently, the court finds that the facts are not clear enough. It is not clear if “put in order” and “content” are overlapping. Unfortunately, no other with higher technical qualification was inquired by the court. There was no one to explain what data base is – to cast light on the metaphor of the cabinet and the drawers.

Besides these facts which are easy to clear out, there is a dispute regarding the law. The two Directives – on the re-use of public sector information and on the protection of the exclusive suigeneris copyright on the “cabinets” (data bases) – are intercepting. It is, however, not completely clear how do they interact and achieve their goals simultaneously.

Apparently, that is why there is need for the interpretation of the European law. However, the respectful Court of the European Union has not been addressed for interpretation.

In order to back its conviction that Petko was not searching information for re-use, the court adds that his aim was not different from that of the National Assembly.

“The re-use should be for a purpose, different from the initial purpose of the information creation.” We know, and Petko knows, that the grounds of the requestor are meaningless to the fact that the information was due. So, Petko’s purpose should be meaningless to the National Assembly, and to the court. The re-use itself is the purpose provided by the law.

The court is still doubting: “even if we assume, that the structured data base is public sector information subject to re-use,” it could not be disclosed because this requires its processing. As grounds for that argument, Art. 41a, Para. 2 of the APIA was quoted.

The grounds set forth by the National Assembly and by Petko’s request were proving the need for processing of the information.
Is that true? No!

What “processing”? The NA did not provide an explanation of what kind of processing was to be done before the provision of the data base neither in the refusal, nor in their defence in the court, nor personally to Petko.
It is not clear how much effort should be put, how many hours wasted and what should be “processed.” In his request, Petko has pointed out that he does not want anything that is protected under the law, personal data, for instance. Personal data protection, however, is part of the NA responsibilities, i.e. this action does not go “beyond the usual operation/procedure.”

The court did not use in its argument the latter quote together with the “processing”, which is part of the same sentence in the provision of Art. 41a, Para. 2. Maybe, it considers any “processing” as grounds enough to refuse access to information for re-use. Does this mean that copying – also a type of processing – gives grounds for refusal?

We cannot believe that. Petko cannot believe it either.

In brief, the NA should have provided evidence of what and why was to be “processed” (beyond the usual procedure). But did not do it.

The court has upheld the grounds of the institution without that evidence. Why?

Petko does not know. We do not know either.

With the assistance of AIP, Petko appealed the refusal again.
And is hoping again.

Obshtestvo.bg developed and are maintaining not for profit, free of charge
the Open Data Portal https://opendata.government.bg/.This is not essential for our story and for the Law, because Petko is a citizen like the others, like all of us.

January – July 2015

This case is part of the book "Civil Participation and Access to Information (15 Years of the APIA, 37 stories of NGOs)" published by AIP within the implementation of the project “Enhancing the Capacity of Nongovernmental Organizations to Seek Public Information” supported with a grant under the NGO Programme in Bulgaria under the Financial Mechanism of the European Economic Area 2009 – 2014 (www.ngogrants.bg).

The whole responsibility for the content shall be taken by the Access to Information Programme Foundaiton and it cannot be assumed under any circumstances that the document reflects the official stance of the  Financial Mechanism of the European Economic Area and the Operator of the Programme for NGO support in Bulgaria.