Exclusive Arrangements - Responsibility of the PSIH

Tuesday 23 January 2007 10:33:02 am

Exclusive Arrangements - Responsibility of the PSIH

Article 11(1) of Directive 2003/98/EC makes it very clear that Exclusive Arrangements between a public sector information holder (PSIH) and a third party that prohibits or prevents others within the market from re-using that PSIH's data and information are not permitted.

Article 11(2) however recognises that there maybe a very sound reason for entering into an Exclusive arrangement but this must be in the public interest and it must be published and reviewed periodically.

Article 11(3) requires ALL exclusive arrangements to be phased out within three years and definitely by 31 December 2008. It should be noted that the Directive came into force on the 31 December 2003 and within all Member States on the 1 July 2005 as such the public sector will have been provided with a three year period in which to phase out all exclusive arrangements. Ample time one would have thought with 4.5 years since notification of this requirement coming into force!

Transparency is a key pillar within the PSI Framework established by Directive 2003/98/EC and as such all exclusive agreements should be declared and published - in the current age of electronic government this would mean on the PSIH's web site. This is required for cost effectiveness both to the public sector itself but also the potential re-user. There is little point in a potential re-user submitting a request to re-use a particular information held by the PSIH if there is a contractual arrangement in place that would legally prevent such re-use. Likewise the PSIH should not need to devote resources to meeting such requests - as such this is an example of why TRANSPARENCY is key.

The Directive makes it very clear that it is the responsibility of the PSIH to ensure that they do not enter into an exclusive arrangement that would prevent others in the market place re-using their information.

The Directive also does not prescribe how an exclusive arrangement may arise. As such an exclusive arrangement may be considered within different scenarios. For example:

- public sector procurement;
- public sector distribution;
- public sector publication;
- delivery of eGovernment;
- meeting a re-use request where the potential re-users requests exclusivity.

To mention but a few.

Article 11 therefore has placed a requirement on not JUST the PSIH but ALSO the Member State to ensure policies such as:

- public sector procurement;
- PPP; (whether it be public-private partnerships, public-private partnerships)
- eGovernment;
- data infrastructure policies. (For example the proposed INSPIRE Directive)

are harmonised.

At the European Union level there is also a responsibility to ensure that the policies mentioned above are compliant with Directive 2003/98/EC.

The Directive sets out the requirement but has this been understood by:

- The Member State public body that has responsibility of transposing the Directive into that Member State law and ensuring compliance?
- PSIH's?
- private sector organisation's that currently enjoy an exclusive arrangement?

Current evidence would indicate that Article 11 has not been understood and that Member States are not taking the appropriate actions to raise the awareness and ensuring policy harmonisation takes place.

Is there evidence that shows otherwise?

Perhaps an amendment to the Directive would be along the lines of requiring Member States to report regularly to the European Commission on the actions that they have taken in this respect.