Topics strongly related to open data are virulent at various political levels for many years by now, as outlined above. Especially at the European level, the EC has pressed to facilitate PSI re-use by attempting to pass general rules about licensing, terms of re-use and pricing. However, lacking a clear legal mandate and with infeasible consensus, the EU Member States have largely retained their influential role (K. Janssen & Dumortier, 2003; K. Janssen, 2011). Nevertheless the EC consistently promotes PSI re-use, now also under the term open data, to strengthen the European information economy. Also, a PSI directive finally passed (Public Sector Information Directive 2003/98/EC) that required member states to implement PSI re-use regulation into national law, thereby putting the topic on the national political agendas. Lacking wide-ranging formal legal power, the European Commission does also have instruments and means to push initiatives, like the smart cities-concept or research projects, which act as a transmission belt for topics like open data between the European level and the local level. Also in this category of influential stakeholders are other inter- and supra- national bodies and associations, like the G8 who passed an Open Data Charta or the Open Government Partnership (Bates, 2012) or EuroCities. These are associations of countries or cities, though less formal and comprehensive than the European Union, who come together to agree on common terms around open data. Somehow surprisingly, countries agree in these deliberations that otherwise resisted the attempt of European harmonisation.
Involved in deliberations at the international level is the ICT industry that promotes the topic in general, also through associations such as the PSI Alliance (Bates, 2012). They have vested business interests and thus stress specific issues in the discussion, e.g. licensing terms, competition in the information market and costs. These corporate advocacy groups differ quite significantly from civic advocacy groups, even though their interests in some respect overlap. While the ICT industry comes from the PSI re-use perspective, civic advocacy groups are strongly influenced by the transparency tradition, putting government under scrutiny and unearthing troves of administrative data. Also, some media outlets join in the debate and act as advocates for open data (see Arthur & Cross, 2006).
Despite prominent and high-voiced advocacy at the international level, the legal framework around open data is largely national. Here, the legal framework allocates the mandate in regard to open data, or it does not, but leaves it an open question. The role of the political-administrative system, e.g. state structure (federal/unitary; centralised/decentralised) or administrative culture (public interest/legal state) has been highlighted in regard to other reform waves (Pollitt & Bouckaert, 2011).
Assumptions can be made that these factors as well as e.g. the role of the individual in relation to the state and the history of freedom of information and transparency legislation do play a role in open data too and the superior results in Anglo-Saxon countries suggest an influence. However, this has not been systematically researched so far.
In general, notwithstanding any general open data paradigm, the decision whether or not to publish a dataset is left to the administration that “owns” the data, which means generates and stores it in the course of their public task. Which organisation this is happens to be strongly influenced by the overall state structure as well as political decisions not related in any way to open data. Thus it can be stated, that who is the data owner is an arbitrary assignment in regard to open data. As a consequence, highly decentralised, diversified, federal states will, all else being equal, find it more difficult to act jointly, swiftly in regard to open data, because coherent action requires intensive negotiations and compromises, sometimes called the “joint-decision trap” (Scharpf, 1988, 2005). Implementing European regulations, such as the PSI directive, in countries like Germany and Spain thus involves several levels of government, possibly having to pass bi-cameral parliaments and negotiations of the administrative levels with various policy fields each. During this process, what is considered open data is shaped by the various stakeholders involved, as will be shown.
In Spain, the law 37/2007 of 16 November on the Reuse of Information in the Public Sector passed by Parliament transposed the PSI directive into Spanish national law, more than two years after the established deadline (Garcia & Soriano Maldonado, 2012). The law goes beyond the pure transposition of the directive, e.g. requiring public administrations to provide electronically accessible catalogues of the available data. It is seen as a general framework for open data, which is, however, not specific and action-oriented enough, since it leaves the burden to request largely on the potential re-user. Therefore, the Ministry for Industry, Energy and Tourism (MINETUR) in coordination with the Ministry of Finance and Public Administration (MINHAP) – the ministries pushing open data – initiated and launched the Aporta project in 2008 (Garcia & Soriano Maldonado, 2012). The project focused initially on promoting the topic of open data, especially in the central government, organised community engagement and fostered studies estimating the economic impact of PSI and open data reuse (see Proyecto Aporta, 2011, 2012). It also published an initial PSI catalogue early in 2010. In order to overcome some of the barriers open data in Spain faced (see Garcia & Soriano Maldonado, 2012), a royal decree (Royal Decree 1495/2011, of 24 October) was issued. It contains as a main principle that all public sector information is reusable but exceptions that have to be justified, a standard open data license for the national government, conditions for re-use, requires every government organisation to establish some sort of open data officer, prescribes measures for the operative open data process (interoperability guidelines for DCAT and URLs) and contains a soft open by default-clause. Furthermore, it mandates all national government organisations to list their data in a central PSI catalogue. The royal decree only applies to the national level, however.
The cross-level coordination structure around open data in Spain follows to a great extent the established modes of coordination within its federal-like system (Colomer, 1998; Lijphart, 1999), not only for ICT or open data, but in regard to any topic of cross-level relevance. Thus, MINHAP engages in regular working groups for open data with the regional level and the Spanish federation of local entities which represents the municipalities, provinces etc. These are affected by the 2007 PSI-law, but not by the royal decree. The autonomous regions cannot be directed by the central government to open their data, how to publish it or where to publish it. Spain is a unitary parliamentary constitutional monarchy divided into 17 autonomous communities and two autonomous cities. The autonomous communities and cities have far-reaching and exclusive competences which renders the state government with less formal powers than in a centralised state. As a third and fourth governmental tier below the autonomous communities, there are 51 so called provinces and about 8.000 municipalities. Hence, there are multiple governmental layers, each of which exercises its own rights. The various (independent) governmental layers also cause a strong vertical fragmentation regarding the public administration and policy issues in Spain. This fragmentation can also be seen in the approaches to e-administration (electronic administration), which is dominated by divided structures as well (Muñoz-Cañavate & Hípola, 2011).
However, the Spanish public administration has increased efforts in recent years to raise coherence and interoperability in regard to e-government. Various coordination bodies for e-government and ICT have been established, such as the High Council for E-Government and the E-Government Sector Committee, coordinating ICT-use across departments and governmental levels respectively. Besides the institutional structure, a joint legal basis has been developed. Subsequently to the law on electronic access of citizens to public services (Law 11/2007), the Spanish national interoperability framework was drafted, which applies to all public administrations in Spain. An interoperability agreement about the re-use of information resources was added to the national interoperability framework in 2011 (Ministry of the Presidency, 2011), making detailed specifications for open data in Spain.
In Germany, the PSI-Directive was transposed into national law through the “Informationsweiterverwendungsgesetz” (Law on the Re-use of Public Sector Information) in 2006. Like most other European countries, Germany failed to implement the law within the required time frame until 2005. As a consequence, the European Commission opened treaty violation proceedings against Germany (Wirtz, 2014), thus spurring the implementation of the directive. Due to the rules of concurrent legislation, which allow the national level to decide single-handedly on norms concerning economic activities in Germany, the German federal government drafted and passed the law, without approval necessary by the second chamber of Parliament (Püschel, 2006), the Bundesrat, which represents the state governments. Hence, the Federal Ministry for Economic Affairs and Energy drafted the law. The state chamber was consulted, however, but did not raise any objections to the regulations. The German law on the re-use of public sector information is mostly identical to the regulations set forth in the directive 2003/98/EG (Wirtz, 2014). The PSI law does not regulate access to public sector information, as this is regulated by each state and the federal level individually through FOI legislation.
Parliamentary initiatives around the topic remained scarce. Electoral successes of the Pirate Party at the state level in 2011 and 2012 spurred the public discourse about FOI, transparency as well as internet- and ICT-related topics. Also, other political parties in Parliament started to take up related issues and positioned themselves. However, after the Pirate Party did not win any seats in the 2013 elections to the Bundestag, the media and political attention faded.
The German federal government was rather slow to pursue an Open Data policy. First steps were taken with the government program “linked and transparent public administration” in August 2010. The program was issued by the conservative-liberal government, which had taken office in October 2009. Henceforth, it was the announced aim of the German government to publish any data that the public administration collects – as long as legally possible and appropriate. Even though issues such as transparency, participation, and collaboration played an important role, the government program also emphasised the economic potential of open data to strengthen Germany as an innovation hub, to increase the competitiveness of German enterprises, and to support the public administration in fulfilling its tasks. Hence, both transparency and economic considerations appear to have been equally important for the German government. Furthermore, the government program directed that only a shared (nationwide) understanding of open data and a joint initiative towards increased openness of government could generate added value for Germany. Thus, the program prescribed a coordinated approach across different governmental levels. Therefore, open data became a topic for the then recently developed governance structures for cross-level collaboration in e-government and ICT among the different governmental levels, which had been established for a coordinated use of information technology.
In 2009, the German parliament had passed several amendments to the Grundgesetz pertaining to the relation between the federal and the state level. Amongst others, the parliament incorporated Article 91c which stipulates that the federal and the state level should collaborate and cooperate closely in the field of IT. In order to implement the requirements, the federal level and the states signed a state treaty, which mandated (1) to set up a nationwide IT Planning Council and (2) to lie down ground rules for collaboration in IT. The subsequently established IT Planning Council coordinates e-government projects, sets IT-standards regarding interoperability and security, etc. Even though the IT Planning Council comprises high-level representatives from the federal level and the states, such as the federal and state CIOs, three representatives of the municipal associations and the Federal Data Protection Officer, the actual coverage of its decisions remains low (Hunnius, Schuppan, & Stocksmeier, 2014).
In 2010, the IT Planning Council passed the National E-Government Strategy (NEGS) which also includes a clause that relevant information by the government and the public administration should be accessible for the public. Thereupon, late in 2011 the IT Planning Council installed a project “Promotion of Open Government”, which dealt directly with the opening of Government Data on all levels of the public administration. It assigned the Federal Ministry of the Interior together with one state to lead the project management. The project commissioned and published a feasibility study about open government data in Germany in the summer of 2012. A Fraunhofer Institute, an applied research centre that had conducted the study was subsequently charged with developing a prototype of an open data platform. It had previously done both for its native state government in Berlin. Also a number of other state governments and especially city governments had already running open data portals, when early in 2013, GovData – The Data Portal for Germany went online as a public beta version. In parallel, the 2013 E-Government Act includes some general clauses that prescribe machine-readable formats and recommend providing meta data, without further specifications or mandates.
Germany also has a voiceful activist movement with regard to open government data. Especially through the purposeful use of public relations, several non-profit organisations have become well- known among and beyond the Open Data community: First of all, there is the “Wikimedia Deutschland-Society for the Advancement of Free Knowledge”, which is engaged in open knowledge in general. Another important actor in the realm of the civil society is the Open Knowledge Foundation Germany. The Open Knowledge Foundation’s aim is to foster the idea of open knowledge in Germany through application-oriented projects.
In Germany, the civil society and its organised bodies (i.e. Wikimedia or the Open Knowledge Foundation) generally seem to choose a cooperative rather than confrontational course towards the government concerning their demands for an increased openness of government data. This may have several causes: To start with, the federal government offered and offers several possibilities for the civil society to partake in the process of developing open government data in Germany. For example, the federal government initiated an open consultation process during the development phase of the project “Promotion of Open Government”. Next to that, so-called community workshops were held. In these Workshops, open data activists had the opportunity to get involved in the process of developing a German open data policy. Furthermore, the government decided to publish the source code of GovData on GitHub. Thereby, everybody who is interested can get involved and make suggestions for improvements of the open data portal.
|Inter- and supra-national bodies and associations||Strengthen efficiency of governmental bodies, facilitating economic growth, esp. in the technology industries and knowledge economy|
|Corporate advocacy groups||Push governments to publish harmonised PSI, ideally for free, in order to support business intelligence or build a business case on the data itself|
|Civic advocacy groups||Raise transparency in government, unearth administrative and political data to involve citizens in governmental decisions|
|Media outlets||Use open data for data journalism, in particular to analyse economic, societal and political issues|
|Parliament||Support economic growth and innovation at a general level, while retaining decision rights|
|Ministries pushing open data||Support economic growth and innovation, implement government agendas and fulfil political goals|
|Coordination bodies for e-government and ICT; governance structures for cross-level collaboration in e-government and ICT||Develop widely implemented standards to facilitate cross-organisational data exchange|
References can be found here: OpenDataMonitor Project – Shared References