Rights of Access to Public Sector Information

This paper was written in the context of the European Commission funded thematic network on Legal Aspects of Public Sector Information ('LAPSI'). The reliance on national access norms is an important feature of the EU’s re-use framework, of which Directive 2003/98/EC on the re-use of public sector information is a central feature. It impacts the kinds of policy choices that can be expected to be effective in stimulating commercial and non-commercial re-use of public sector information by private actors (businesses, civil society organizations, individual citizens, etc.). In this paper we assess in more detail the relationship between the PSI Directive and (statutory) rights of access and duties to disclose information under national laws and European law (the latter especially in the area of environmental law). The conclusion is that despite the fact that access to information is increasingly recognized internationally as a fundamental right, the nuts and bolts of it will remain squarely a national affair for the foreseeable future, environmental information excepted. This makes it especially important that EU re-use policies and instruments enable public sector bodies in Member States to work within their existing access infrastructure, in terms of local divisions of competences, procedures and control over pro-active dissemination of information. If the requirements imposed under EU re-use law do not align with local freedom of information laws, it may produce a negative effect on transparency. Not only that, it may also adversely affect conditions for fostering (commercial) re-use.