Our response to the Zurich Act on Information and Data Protection

The Canton of Zurich has held a consultation on the Act on Information and Data Protection (IDG). The act governs questions of data protection, the processing of personal data and access to information. Our response (PDF):

As an association that has been campaigning for open (government) data for more than 10 years, we are pleased to comment, but we limit ourselves to precisely this aspect of open (government) data. Our points of reference are the Confederation’s Open Government Data Strategy 2019 – 2023 and the Federal Act on the Use of Electronic Means to Fulfil Official Tasks (EMBAG). These are important points of reference that now need to be developed further. From this perspective, we take the liberty of making the following remarks on the preliminary draft:

We welcome the holistic approach of regulating the freedom of information, data and information protection, and with them open government data, in a single enactment. We have one fundamental remark on this:

§ 1 If the commentary on the principle of transparency is to be taken seriously, then this section should not speak one-sidedly of data protection as the protection of a fundamental right, but should set against it the legal right of access to information, which is also a fundamental right, and emphasise the need for ongoing balancing of interests. Letter a could, for example, read: 

… and, to facilitate the free formation of opinion and the exercise of democratic rights, to guarantee the legal right of access to official information …

This would also require an adjustment to § 5, in the sense not only of enabling the authorities to provide information quickly, comprehensively and objectively, but of ensuring citizens’ legal right to quick and easy access to comprehensive and objective information; cf. § 15 para. 1, which in fact formulates this right – more coherence simply needs to be established here.

In detail, we would also like to note the following:

We propose modifying § 13 para. 2:

The cantonal administration publishes its information, insofar as it meets the requirements of § 4 para. 5 let. a and b, as open government data (open by default). The Executive Council sets the criteria for publication as open government data and regulates the technical requirements.

No additional criteria for publication are needed, only clear rules on the technical requirements. In keeping with the idea of open data, the publication of data cannot be made dependent on (justified) requests either; in a democratic knowledge society governed by the rule of law, data publication is an infrastructure service of the public sector. That the state of the art and currently recognised norms and standards are taken into account in data publication seems self-evident to us and could be omitted. Making the benefit for society, the environment and the economy a criterion – for what exactly? – we consider problematic. This benefit often only arises once data can be used freely. In the sense of a legal right of access to information / data, we would omit it.

At the same time, there are also some points here that in our view are missing: a public data catalogue of the canton should record transparently which government data are published as open data. At the same time, the conditions of access should be communicated transparently, especially for data whose existence is disclosed but which are not freely accessible. In addition, an opportunity for feedback should be built in, so that the range of data on offer can be developed further in a participatory way.

In § 13 para. 2 we wonder whether the municipal administrations should not also be placed under this obligation, particularly as some municipalities (City of Zurich, Uster, etc.) are already active. § 13 para. 3, § 17 para. 2 and § 20 para. 2 repeatedly speak of considerable additional resources being required or of considerable additional effort being incurred: if there is a legal right of access to official information – the idea behind the principle of transparency – then this legal right should not be restricted by the threat of costs being passed on. The authorities then have a duty to prepare their information / data in such a way that it can be published without great additional effort (prospectively), or they must (retrospectively) accept a certain amount of effort. At the very least, it should therefore be added in all these places that restrictions may only be considered in the case of demonstrable additional effort. By analogy with the EMBaG, it could be added, as a relief, that the authorities only have to publish the existing data; they are not obliged to check them for accuracy, completeness, plausibility or in any other way.