Contenu du sommaire : Les données publiques : un gisement à exploiter ?

Government as an information machine It is in the nature of any organized government to collect and keep documents which contain informations on places and resources, goods and persons. However, disseminating these informations and elaborating information policies only started in the sixties. As the United States case shows government interests are at stake ; “information policy” covers different areas reaching form computerization policy to the development of a private information industry. In addition, the political dimension of data management is developped, as the influence of important indicators on public debate shows.

Public Sector Information : Secrecy, Transparency, Commodity While public sector information policies vary between two basic poles, the “frugal” and the “opulent” one, legal development in North-America and Western Europe has gone through three phases : the crisis of secrecy and the auxiliary role of information ; the technological crisis and administrative information as a power resource ; the economic crisis of the public sector and administrative information as a commodity. Against the noise of public policy debates, the silence of administrative and constitutional law doctrine is surprising. At this stage a normative reconstruction is necessary. In the meanwhile some contradictory trends should be considered : as we observe in the area of telecommunications the privatization of public sector may well lead to a “publification” of the private sector.

The Three Pillars of United States Government Information Dissemination Policy The dynamic American marketplace for information goods and services is supported by three constitutional and statutory policies for federal government information activities. These policies are found in the First Amendment to the Constitution, the Freedom of Information Act, and the Copyright Act of 1976 that prohibits the federal government from copyrighting its information. As more records are converted from paper to electronic, these policies work together to minimize monopoly and to maximize public access.

The european discussion : yet another monster of loch ness The european discussion on the transfer of public data started in 1985 and evolved only slowly. The existence of important differences between member States and of different concepts about the public-private sector relationships are a big part of the reasons for the delays in setting up a common regulatory framework which is furthermore perceived by national governments as an intrusion in their internal affairs. In this context, supple directory principles set up by the Commission, which would serve as a “community reference framework” for member States, seem better adapted than the instrument of directives to a field where law rapidly and constantly changes.

Interview of Jean-Pierre Schoettl The present State of public data reserves is very badly known. Only publications have been inventoried. As far as communication of public data is concerned, a distinction must be drawn between access -mainly regulated by the Act of 17 july 1978 -and dissemination, which is linked to government missions. The nature of the medium used for collecting and disseminating data is determining the judgement which can be made on the interest of communication to the public. From this point of view, information technology leads to share the dissemination and circulation of informations. The concepts of public interest and public service missions have to give guidance to government in its choices about valorisation of public data reserves. Three series of legal norms divide the roles between public administration and the private sector : judge made principles regarding the economic interventions of public bodies, national competition law and european community law. The specific aspects of information public services have to be carefully taken into account, as their mission may include data with added value. The choice of a medium and tarification are very important points as to the administrative transparency which has to be the base of these services. Although ail these questions are linked, they belong to too different legal regimes as to allow for a common legal status for information.

Dissemination of public data and competition law : a lost opportunity The circular of 14 february 1994 about dissemination of public data includes some rules which are an obstacle for the improvement of relationships between public and private sector. First, the circular forbids access to data for commercial use, whereas dissemination by public administration itself is discretionary, and the status of “raw data” (which are nobody's property) is not settled. Secondly, the circular sets down principles which are opposed to equal chances as they are guaranteed by community competition law : prohibiting double financing leads public administration to offer its data to a price lower than the costs and as such as the market price ; as public administration uses its data without paying charges and without having separated its commercial activities, it benefits from crossed subsidies ; the right of public administration to charge clients for commercial use leads to discrimination between users and to double financing. All these principles are not sacred ; abandoning them is necessary to improve synergy between public and private sector.

Reconciling competition rules and public law in the exploitation of public data reserves : answers to the article “dissemination of public data and competition law : a lost opportunity” The circular of 14 february 1994 about dissemination of public data largely opens access to public data for the private sector while guaranteeing equality of chances between processors. Exploitation is open for ail non-protected data. Dissemination through private sector processors is being given priority. As long as it is not a public service mission, the private disseminator is totally free to act. The principle of equality between processors is guaranteed in two ways. First through tarification which may only include the cost of putting data at users' disposal. When this cost is insignificant, the service is most often free. Secondly, through forbidding double financing. Thirdly, the rules of competition law can easily be respected as soon as one admits that general interest (for instance the existence of the service) justifies a restriction to competition.

An excess of scruples ? The National Commission for Liberties and Informatics (CNIL) recently regulated the use of data of the general population census by a series of proceedings. The Commission scrupulously Controls the modes of any transfer of anonymous data and forbids any transfer of data which are agregated at a too low level, because of the risk of incrementing name data banks. This broad control is an unnecessary addition to legal guarantees about statistical investigations and the use of enquiry documents. Furthermore this is a hindrance to government's social actions (for instance the urban policy) which necessitate reliable and detailed data as a basis for a policy which respects the diversity of situations. The notion of general interest should be integrated to the criteria for data dissemination.

An economic and strategic imperative Collecting, processing, disseminating public data is not only a result of the duty to inform imposed on public administrations in Europe because of their democratic legitimacy. It is as well an economic strategy : the public data reserve can be considered as an important source of job creation which cannot be neglected, today less than ever. But this means organizing information as an authentic trade : while possessing as performing material as the United States, Europe has not prepared itself to this trade ; this raises questions ; furthermore one has to realise that managing this trade has become indispensable to a country's economy. This is why public administrations in Europe and particularly in France must reconsider and rethink the management of public data.

Knowledge and dissemination of public data in France The Committee for Administrative Documentation Coordination (CCDA ) which has been installed by a decree of 13 july 1971 takes part in collecting and disseminating public data through its numerous functions : improving documentation work of administrations, controlling and inventorizing the publications of central ministerial departments, field services and national public bodies, supervising the creation of administrative data banks and contributing to the information of the public by building a central information network or an information technology service. Adding to these traditional functions, the CCDA has more specific missions such as the valorisation of non published administrative documents or the evaluation of missions and needs of ministries' libraries.

The Documentation francaise as an instrument for the dissemination of public data While the founders of the Documentation francaise created it in 1945 in order to respond to the documentation needs of french public administrations, the institution has adapted its missions to the new demands of its partners. Facing more and more complex, specific and diversified demands of the administration and of the public which no longer accepts to be merely informed of the decisions conceming them, the Documentation francaise tried to renew its modes of action. It has modified its legal and financial needs, opened the institution not only to public administrations, as indicated in the founding text, but also to users. It has developped new means of knowledge - amongst others through publishing - and adapted itsel to new information technology. Thus it is a priority instrument for the dissemination of public data in France.

The valorisation of the national centre for scientific research's data bases The National Centre for Scientific Research is a producer of data bases which are direct product or sub-product of research. Therefore it has to articulate the valorisation of research results - the data bases - with the rules for public data dissemination and its own mission of scientific information dissemination. It also has to take into account the rights of researchers and the rights of so-called “reserved” informations. The valorisation of data bases also has to reconcile the possibilities of giving monopolies to contracting enterprises and the duties of dissemination included in the proposal of a european community directive on the protection of data bases.

The dissemination of statistical data Institutes for Statistics (INSEE) have to face three phenomena : an increase in the number and variety of users of statistical data, an increase of the volume of information, the multiplication of dissemination techniques and disseminators. Although having little means and flexibility, they have to look after the quality of disseminated data. The development of statistical data should follow two means : first, a dissemination of general information to a large public, and secondly a dissemination of specialised - or even personalised - data for professionals through a flexible partnership with the private sector.