The computer says “no” – IT and administrative law

Digital-ready legislation is high on the international agenda, at EU-level and elsewhere. The aim is essentially to ensure that digital solutions are worked in at the earliest stages of the legislative process. This includes first and foremost a conversion of any traditional requirements concerning physical documents and signatures into digital equivalents. It will also naturally be crucial to make the legislation technologically open-ended to capture innovations and ensure optimal use of open-source solutions. 

 Digital-ready legislation is also about facilitating sharing and reuse amongst public authorities of data already supplied once. This is to avoid having to bother citizens unnecessarily but increased inter-institutional digital traffic might prove a double edged-sword not least in these times of growing cyber-attacks. 

In the drafting process there should be even more emphasis on consistency in terminology and interoperability between legal texts to facilitate digital processes etc. An issue termed “legislative density” is also being discussed as part of drafting digital-ready legislation. This relates to the question   whether it is sufficient in laws to establish principles and objectives, or whether detailed technical concepts and procedures for achieving the objectives need to be spelled out there as well. The choice may influence the degree of discretion for authorities when applying the legislation and is therefore going beyond mere technicalities and touching on fundamental principles. 

The advantages of digital-ready legislation are obvious and need hardly be further spelled out. Early attention on digital aspects will lead to more efficient application of the legislation. However, the approach also seems to have the practical effect of putting digital concerns on an equal footing with legislative/policy concerns; – there is a risk that the discussion of policy options may effectively become too dependent on what is judged to be digitally convenient.  

A digital-ready legislative strategy with appropriate priorities is important to generally ensure that IT-tools effectively underpin the regulations and policies for which they are intended. Problems in this respect range from very operational ones, such as cells in electronic forms that do not allow sufficient text or certain information, such as foreign phone numbers, to problems of principle. Problems of principle include cases where IT-solutions fall short of obligations that public authorities have in relation to citizens according to not least administrative laws.  

Some years ago, the Danish Ombudsman issued a report[2] concerning a number of cases in which IT has played a central role and where the conclusion was that the IT solutions had not measured up to the requirements in administrative law. Administrative law is a well-known element in the legislation of most countries, not least within the EU where common concepts and principles defining the relationship between public authorities and citizens are important conditions for harmonisation of legislation. Hence the EU Charter of Fundamental Rights spells out a principle of good administration in for example the right to be heard, access to files and the obligation for a public authority to give reasons for its decisions. Many of the problems identified in the report are therefore  relevant also beyond a Danish context as indeed  the following examples show:

The use of homepages by public authorities greatly improves communication and transparency in relation to citizens. One case concerned an arrangement going a step further by referring applicants etc. to check such homepages for decisions concerning their cases. This was considered to compromise the position of citizens, who are entitled to have decisions conveyed directly to allow optimal time for them to react on the decision, for example in the many cases of  time limits for complaints. 

In another case, citizens right to use electronic communication in relation to public authorities  was seen to have been undermined in certain cases by a limitation in the IT system whereby letters from citizens could only have a certain file size and not exceed a certain number of documents. This limitation was criticised for impeding the right to use electronic communication.  

A case concerned an IT system for processing of decisions using file-types that allowed changes to be made such as Word files. It is obvious that there must be transparency in communications from public authorities and  it is therefore essential that decisions from public authorities cannot be tampered with. A simple solution in these cases was to use pdf files or similar that cannot  be changed. 

Another case concerned an IT-file system where the search facilities only allowed retrieving based on names of clients but not on other facts such as type of decision, subject or legal basis for the decision. This meant that the system could not be used by staff for retrieving similar previous cases to check how such cases were resolved. The point was made that staff would be unable to verify what had been decided in previous similar cases and would have to rely on the memory of colleagues. The system was in other words not suited for ensuring consistency in decision-making. The point was made that public authorities must observe the equality principle of administrative law, and that they can only do so if they are able to retrieve earlier, relevant cases and furthermore have a sufficiently reliable grasp of their own practice. 

In terms of curiosity, during my remote pre-digital employment in government central administration the file numbers allowed the retrieving of the paper files based on decision type in addition to date and name of person concerned. In a paper-based archive the search for “precedents” could be a cumbersome process even within the limit of the respective decision-types. Fortunately, the division where I worked  had over the years maintained informally a “book of wisdom”, essentially a binder with copies of important decisions. It is likely that a similar book, albeit in e-version, may exist in many administrations to allow for quicker reference and fine-tuning of search. But it would never replace a “searchable” file.

 In another  case, the IT-system for alimony recovery between municipalities, the factual content of the individual payment demand letters was stored and accessible in the system. However, the system was unable to produce actual copies of the letters and thus reconstruct the letters as such. The need for such copies arose in cases of access to files requests. Copies were according to administrative law in any case required to be kept until there is no further legal or administrative need for them, in other words when it is certain that any demands arising from the case are statute-barred or inadmissible for other reasons. It is therefore required to keep physical copies of letters or for the IT system to be able to produce an exact copy. Such a system will need to guarantee both original content as well as authenticity of sender. Similar requirements must presumably apply in cases of communication based on e-mails.

 A similar case concerned the existing official IT postal system covering the entire public sector. The system labelled each letter sent as coming from the government department overall responsible for a certain policy area, for example social affairs, rather than from the subordinated directorate, agency or regional office that had issued the decision. It was therefore not clear to the recipient who was the actual decision-maker. This possibility was criticised because it did not comply  with the basic demands of administrative law that a letter from an authority must contain the correct name of the sender so that it is clear to citizens which public authority a decision comes from . 

The postal system was based on a system of codes covering public sector entities that were autonomous in terms of budgeting and accounts. It was therefore practically difficult to include as independent users any subordinate entities and their staff. Such entities and their staff was therefore covered by the code of the superior entity that they refer to. In terms of compromise it was suggested to have a special box with the name of the subordinate entity included in letters which otherwise had the superior entity as sender. It was however decided to find a solution, which would include an unambiguous indication of the responsible public sender.

These are just a sample of the many cases where the common feature is not to allow trade-offs in relation to legal principles merely because the computer says “no”. 


[2] To be found in English version on https://en.ombudsmanden.dk/publications/