Statement on the total revision of the Valais cantonal constitution

Basel, 12.03.2021

Dear Sir or Madam

The Opendata.ch association, the Swiss chapter of the Open Knowledge Foundation, is committed to the equal participation of all in the digital knowledge society and works to strengthen free and unhindered access to all data and information that do not require special protection. We have over 300 members from all over Switzerland, including several from the Canton of Valais.

By open government data we mean data that are collected and processed in the fulfilment of a public function and that are available in open, machine-readable formats to everyone interested, freely and free of charge, for any purpose. These data must be up to date, reliable, machine-readable and complete, as well as clearly described (metadata for the correct understanding of the data). Various expectations are generally associated with open data: strengthening democratic participation, more transparency, better accountability, increased efficiency (also and especially in the bodies producing the data), promotion of innovation and economic value creation, and prevention of corruption – not all of these objectives are equally relevant in Switzerland. In view of the encouraging approaches in the Valais draft constitution, we would like to use the opportunity of the ongoing consultation to present to you some considerations on the subject area of the principle of freedom of information, transparency and open (government) data.

We concentrate on the report of Commission 2 on fundamental rights, which is extremely wide-ranging and covers a great many important areas of fundamental rights. We are particularly pleased that «[the] digital rights […] and […] effects they have on our society, such as the protection of our personal data or the importance of digital technology in the relationship between citizens and the state» have also been discussed «in depth» and that corresponding provisions have been included in the catalogue of fundamental rights. We especially welcome the right of access to information and data, but are of the opinion that the question of open data in particular, and of public access to information and transparency in general, should be addressed even more precisely and definitely.

Our proposal is:

1. Access to open data and open information is a matter of course and an enforceable fundamental right (freedom of opinion and information).
2. Access to data and protection of data need an equivalent legal basis (constitution, fundamental rights). They set limits on each other.
3. This is not about official information and data in the narrower sense, but about information and data held by the administration and politics, which they also use themselves. 
4. Open data and information create general transparency and, indirectly, trust as well. They promote participation, innovation and efficiency.

Re 1Open data / free access to data and information: The postulated «right to official information and data» postulates a right that – as the section title suggests – also includes free access to data. This is important, but in our view too passively formulated (inspect, free access); it should be made clear that the state, the administration, publishes all information and data for free use and re-use, so that they can be used without barriers. This corresponds to the internationally recognised principle «open by default»: openness of data is the rule. Where necessary, such data publication can be demanded. A wording could therefore be, for example: The publication of information and data of the administration for free re-use is guaranteed.

However, these data must also be up to date, machine-readable and reliable and be sufficiently described by (standardised) metadata so that they can be used meaningfully. 

Re 2 Fundamental rights or state task: It seems absolutely necessary to us that access to information and data enjoys the same constitutional rank as data protection. In the unavoidable weighing of interests between equivalent principles, this requires the balancing to take place on an equal footing. This alone also ensures that we are dealing here with an actionable right. Anchoring this principle, which is important for a lively democracy, merely among the administrative tasks would greatly reduce its chances of being enforced; it should therefore not be relegated to the chapter «Social or other tasks of the state». 

This does not, however, preclude the practical question of data publication according to the wording «[t]he state makes the datasets in its possession freely available in an open format that facilitates re-use and is adapted to technical progress», which specifies publication in an open format as well as legally free use free of charge.  – here a provision according to the report of Commission 6.

Re 3 Official information: The term official is misleading and can lead to contradictory interpretations. At least in German, the term offiziell carries a connotation of amtlich, which means information that is both authorised and binding. The legal entitlement to free access to information and data, however, is by no means about official announcements, but about the rapid, complete and reliable publication of information and data that the authorities hold and with which they themselves work. In the case of planning bases, for example, the point is that everyone interested can make their considerations and sharpen their arguments on the same factual basis. The legal entitlement thus does not apply to access to official information and data, but to data and information that already exist within the administrative bodies. 

As a parenthetical remark: from this perspective it is also problematic if the right to correction of data is enshrined in data protection. Data only need to be corrected if this can prevent wrong decisions. Once the decisions have been taken, the obligation to correct must be replaced by a possibility to contest, as otherwise the comprehensible traceability of administrative action would be jeopardised in the longer term.

Re 4 Transparency: In the draft constitution, transparency appears as a general principle in the report of Commission 1, but in the report of Commission 2 practically only in connection with «political life» and, in particular, its financing. Transparency, however, is an overarching principle. We argue for understanding this term broadly, as in the report of Commission 1; however, its content would still need to be specified in the explanations – in the future commentary on the new constitution – and clearly laid down as a general administrative principle alongside effectiveness and efficiency. From this perspective, free access to government data and information, as a central contribution to transparency, must absolutely be anchored at constitutional level, on the grounds that substantive political transparency, in particular also the transparency of the bases for decisions and of decision-making, strengthens trust in the state and lays the foundation for a factual, reasoned political debate. In the broadest sense, such a legal entitlement to free information and to free, re-usable data not only strengthens freedom of opinion and information, but also contributes to political, social and cultural inclusion in a broad sense (Commission 2, point 11 Right to inclusion), by creating the conditions for expanded opportunities for participation thanks to reduced information asymmetry.

In all these remarks we have never mentioned the limits of the obligation to publish. We naturally assume, however, that data and information can only ever be open if neither data protection nor information protection stands in the way of publication.

We hope that our considerations can feed into your further work. We will of course be happy to provide further information or discuss this with you.