【Abstract】 Government data opening is the behavior of administrative subjects to provide government data to citizens, legal persons and other organizations, which helps to protect public rights, improve public services, and promote development and innovation. In the future, the legislative process of unifying government data opening should be accelerated. The scope of government data opening should be further expanded, with openness as the principle and non-openness as the exception. Improve the procedures and mechanisms for opening government data, and define the standards for opening government data. A unified government data open platform should be constructed to ensure regular updates of data, a simplified and user-friendly open government data system should be constructed, and the level of data governance should be improved.
This is a world dominated by data. Data has become a part of everyday life, sometimes invisible and sometimes ubiquitous. With the improvement of the level of government governance, the government has an increasing amount of data. In recent years, many countries and international organizations have been actively promoting open government data. Government agencies digitize a large amount of data held by them and store them on fixed websites in a specific format that is not limited by specific software, so that the public can access it. You can search and obtain the required data through the Internet. China has increasingly recognized that open government data can help ensure transparent participation, improve public governance, and promote economic and social development.
However, the legal construction of government data opening in my country still lags behind the practice of government data opening. The government, enterprises, the public and society have not fully realized the significance of open government data; the scope of open government data needs to be expanded; a unified and open portal for government data needs to be constructed urgently; the standards for data collection are still inconsistent; Availability and retrievability still need to be improved; it has not yet provided sufficient legal protection for government data opening.
The practice of open government data in China is in the process of development and change, and the legal system of open government data in China is also in the process of forming. Although this article will focus on the concept and legal theory of open government data, it will try to link laws and policies to outline the Chinese government. The current situation of the legal system of data openness, and discuss the direction of the development and construction of the legal system of data openness in the government of our country, and outline the main points of the legal system. This paper also intends to discuss how to improve the quality of government data opening by optimizing data governance.
1. Definition of open government data
(1) What is "government data"
"Data" and "Information" are not synonymous concepts. "Data" is the first-hand original record, which is neither processed nor interpreted, and has no clear meaning, while "information" is data that has been connected, processed or interpreted and given meaning. Paragraph 4 of Article 76 of the "Network Security Law of the People's Republic of China" stipulates that network data "refers to various electronic data collected, stored, transmitted, processed and generated through the network." "Government information" is defined as "information produced or obtained by administrative organs in the course of performing their duties, recorded and stored in a certain form." Referring to the provisions of the above legislative example, the "government data" mentioned in "Government Data Openness", It refers to all kinds of data resources recorded and saved in a certain form by administrative subjects in the process of performing their duties according to law. The emphasis here is on opening up more primitive government data to facilitate user data processing and value-added services.
(2) What is "data openness"?
It is necessary to think about the "openness" mentioned in "government data openness" under the open architecture of the Internet. "Openness" not only connotes open government, but also appears in current political discussions, legal texts, policy documents, academic discourse, and technical discourse. The "openness" in data openness is reflected in the technical level that data is in a machine-readable, non-exclusive electronic format, which can be obtained and used by anyone. At the legal level, these data are public resources and should be provided to citizens, legal persons and other organizations free of charge by administrative subjects in a convenient and efficient way.
(3) What is "Open Government Data"?
The "open data" mentioned in "open government data" means that government data can be freely and freely accessed, acquired, utilized and shared by anyone. From the perspective of administrative law, government data openness is the behavior of administrative subjects to provide government data to citizens, legal persons and other organizations. Open government data emphasizes the use and reuse of data by the public, emphasizes the use of information technology, and actively opens government data to all the public free of charge, without authorization, and indiscriminate, and should provide a variety of formats to meet the needs of different types of users .
(4) Similarities and differences between "open government data" and "big data"
In addition to the concept of open government data, there are buzzwords like "big data", but these are two related but different concepts. Big data can come from the opening of government data, or from the data collected, organized, and analyzed by commercial organizations on a daily basis, especially the data flow formed by activities on the public network. For example, Amazon.com has mastered users' online book buying habits; mobile fitness apps such as Keep have mastered users' exercise habits; Taobao has mastered consumers' business shopping habits. There is no clear definition of "big data" in my country. In the local regulations of the "Regulations on the Promotion of Big Data Development and Application of Guizhou Province", big data is defined as a data collection with the main characteristics of "large capacity, many types, fast access speed and high application value. Collect, store and correlate data from scattered sources and various formats to discover new knowledge, create new value, and enhance new capabilities in a new generation of information technology and service formats." The open government data is often the data information released by the government with a purpose, and the original information of the government is released.
2. Functions of open government data
The function of open government data is to help protect public rights, improve public services, and promote development and innovation.
(1) Protection of public rights
"Freedom of expression" refers to the freedom of people to expose their inner spiritual functions to external spiritual activities in a certain way. Freedom of expression is not only to protect citizens from the state's restrictions on expressing ideas and opinions, but its real realization requires the interaction between the data publisher and the data receiver. From the perspective of data release, freedom of expression is the right to release data; from the perspective of data recipients, it is the right to obtain data. When a large amount of data is in the hands of the government, if the data cannot be opened up and effectively acquired and used by citizens, citizens will not be able to form their own thoughts and opinions, and it will be difficult to protect the public's freedom of expression. Article 35 of the "Constitution of the People's Republic of China" (hereinafter referred to as the "Constitution") stipulates: "Citizens of the People's Republic of China have freedom of speech, publication, assembly, association, procession and demonstration." The right to obtain government data (access to data) can better form their own thoughts and opinions. In China's existing government data open regulations and policies, more attention is paid to the impact of data openness on governance capacity, economic operation, and social life, while relatively less attention is paid to the protection of public rights. Article 1 of the "Regulations on the Disclosure of Government Information" also emphasizes the "serving role of government information in the production, life and economic and social activities of the people". However, open government data is in line with the true meaning of democracy. It allows the public to understand what the government is doing. By analyzing the data opened by the government, the public can improve the public’s ability to supervise government management and effectively express the public’s will, preventing the government from acting arbitrarily according to its own preferences. In my country's current laws, the right to obtain data is not stipulated in a codified manner. The public should have the right to obtain data in accordance with the law, and open government data should be the government’s initiative to open public data according to its authority, without the premise of public request for data openness. In the future legislation on open government data in China, it is advisable to stipulate the right of the public to obtain data, and ensure the availability of data in the system design, such as the format of data openness, the machine readability of data, and the frequency of data update.
(2) Improve public services
The focus of cooperative governance shifts from a bureaucratic structure to a multi-center governance network, emphasizing the cooperation and participation of multiple subjects, and in a more cooperative and interactive way, through different subjects to share scattered resources, coordinate interests and actions, and then achieve administrative tasks. Through open government data, the public can obtain high-quality knowledge and information, allow the public to participate more effectively in the policy process, improve the quality of administrative decision-making, build an open and user-friendly government, and improve public services. The State Council pointed out in 2015: "Using big data to gain insight into people's livelihood needs, optimize resource allocation, enrich service content, expand service channels, expand service scope, and improve service quality to promote the formation of a fair, inclusive, convenient and efficient people's livelihood service system, and continuously meet the needs of the people. Growing personalized and diversified needs." China's public services through government data opening include the development of mobile application software (APP) and the construction of public service network platforms. The development of mobile APPs is like Shanghai's "Citizen Cloud" application software, and an example of the construction of public service network platforms is the "Love City" website in Qingdao, Shandong Province. One-stop comprehensive services such as life-related public services, living services, and government services. In 2012, President Obama promulgated the document "Building a Digital Government in the 21st Century", requiring the executive branch to provide better digital services to the American people, to provide public services at lower costs, and to improve user experience. At present, China emphasizes the improvement of public services through the opening of government data. The focus is to allow the public to obtain more comprehensive, complete, accurate and detailed information. However, in the future, the government should fully tap the value of open data, conduct in-depth analysis of open data, and make Efforts shall be made to use government open data and social data resources to evaluate the performance of government public services, and adjust and optimize public services in a timely manner according to the evaluation results, so as to improve the quality of public policies.
(3) Promoting development and innovation
Open government data is an important driving force for development and innovation. For example, the opening of spatial geographic data can be used to guide mining, forestry, agriculture, fishery, energy, navigation, transportation, etc.; the opening of meteorological data can be processed to guide agricultural production, tourism, disaster management, and insurance industry forecasting , environmental assessment, etc. In the process of opening government data, it is the original data that is opened, and it is not advisable to advocate the redevelopment of data by the government, because the administration may be slow and inefficient, and it cannot respond quickly to changes in the market, the public and technology. Commercial organizations have more flexible organizational forms, are more sensitive to market signals, and have faster decision-making mechanisms. They can process, innovate, and utilize shared and open government data better, faster, and at lower costs, and design more Innovative services and products. Furthermore, by developing the data fusion of government data and social data in the fields of industry, emerging industries, and agricultural and rural innovation, by improving the data industry chain, building the data industry, and promoting development and innovation.
3. Institutional Construction of the Legal System of Government Data Openness
In the future development of our country, we should build a legal framework for open government data, promote unified legislation on open government data, clarify the scope of open government data, improve the procedural mechanism for open government data, and define the standards for open government data.
(1) Constructing a legal framework for open government data
At present, there is no clear regulation on the opening of government data in my country's current laws. The "Archives Law of the People's Republic of China" stipulates the utilization and opening of archives, of which 19 stipulates: "The archives kept by the National Archives shall generally be open to the society for 30 years from the date of formation. The period for which such archives are open to the public may be less than thirty years.” Although Article 3 of the "Law of the People's Republic of China on Guarding State Secrets" stipulates that "not only ensures the security of state secrets, but also facilitates the rational use of information resources", the legislative purpose of the law is still "to preserve state secrets and safeguard national security and interests." Article 1 of the "Regulations of the People's Republic of China on the Disclosure of Government Information" (hereinafter referred to as the "Regulations on the Disclosure of Government Information") stipulates that one of the legislative purposes is "to protect citizens, legal persons and other organizations from obtaining government information in accordance with the law". The article stipulates the scope of information that administrative organs should voluntarily disclose.
However, the active disclosure of government information in the "Regulations on the Disclosure of Government Information" is still not the same as the purpose of open government data. Open government data requires the disclosure of the underlying and original data. Information is processed and analyzed information, but is often not the original data. The current situation of my country's government data opening can be described as practice first, legislation lagging behind, document governance, and policy promotion. At present, the rules that have the deepest understanding and focus on the openness of government data at the central level are not any laws or administrative regulations, but the Notice of the State Council on Printing and Distributing the "Outline of Action for Promoting the Development of Big Data" promulgated in 2015. The outline calls for promoting the openness and sharing of government data, steadily promoting the opening of public data resources, and accelerating the construction of laws and regulations, but its content is more about future visions, lacking operational institutional arrangements, and lacking provisions on rights and obligations. At present, the most relevant local legislation related to the opening of government data belongs to the “Regulations on Data Sharing and Opening of the Guiyang Municipal Government” promulgated in April 2017. The background of the regulations is that Guiyang is the "core area of the national comprehensive pilot area of big data, and the main front for the development of big data". In response to the requirements of building an innovative city, responding to the needs of the big data industry in Guiyang, and promoting the openness of government data sharing It is carried out in an orderly manner in accordance with the law. In response to many problems such as imperfect top-level design, departmental barriers, fragmentation, disconnection between supply and demand, and insufficient security guarantees, the Ministry has formulated legislation on what is government data, what is government data openness, and government data. The scope, standards, platform, content, format, procedures, etc. of the opening have been stipulated in more detail, and corresponding safeguards and supervision measures have been stipulated. In other provinces, although there are examples of using normative documents to promote the opening of government data, there is a lack of codified institutional provisions. In the future, it is recommended that the Standing Committee of the National People's Congress formulate the "Government Data Open Law" in due course. When the legislative conditions are not yet mature, it is recommended that the State Council first promulgate the "Government Data Open Regulations" to clarify the goals, principles, scope and procedures of government data openness through legislation, clarify the content and standards of data openness, and stipulate data openness platforms, Data format and data quality, stipulate the rights and obligations of the government, enterprises, institutions, and individuals in the process of opening government data, protect citizens' rights to know, supervise, participate, and value-added utilization, and protect personal data, national security, issues such as intellectual property rights.
(2) Clarify the scope of government data opening
In practice, some departments regard data as a source of power, interests and resources, and are reluctant to share their data with other departments at the same level, and even more reluctant to open data to the public. At present, the extent to which government data is open, which data sets should be open, and how data under different data sets should be classified are more determined by relevant government departments and government officials, and there is a lack of uniform standards. To this end or should do the following three points.
1. Government data should be open in principle and not open as an exception.
Premier Li Keqiang once pointed out in 2016: "At present, more than 80% of my country's information and data resources are in the hands of government departments at all levels, and it is a great waste to 'hidden in the boudoir'." Article 27 of the "Regulations on the Promotion of Big Data Development and Application in Guizhou Province" Provisions: "Implement the public data open negative list system. Unless otherwise stipulated by laws and regulations, public data shall be open to the public; for public data that cannot be open to the public according to law, the catalog shall be released to the public." The main problem in my country is not data openness. Redundancy, but insufficient data openness. In the future, we should introduce government data with the principle of openness and the concept of non-openness as an exception, so as to maximize the openness of government data. Adhering to the ideas in the 2015 State Council Notice on Printing and Distributing the Action Outline for Promoting the Development of Big Data, efforts should be made to establish a list of data resources for public institutions such as government departments and public institutions in the future, and formulate government data opening actions and annual work plans. , transportation, medical care, health, employment, social security, geography, culture, education, science and technology, resources, agriculture, environment, safety supervision, finance, quality, statistics, meteorology, ocean, enterprise registration supervision and other government data related to people's livelihood security services , should give priority to opening to the society. Government data that is highly concerned and in demand by the general public and market entities should be given priority to be opened to the public.
2. Appropriately limit the scope of government data opening.
The opening of government data is not blindly "Han Xin points out troops, the more the better." When determining the scope of government data opening, the principle of "minimal disclosure" should also be adhered to, and only data relevant to the public and actually needed by the public should be opened, so that the public does not need to face redundant data. Article 14 of the "Regulations on the Disclosure of Government Information" stipulates: "Administrative organs shall not disclose government information involving state secrets, commercial secrets, or personal privacy. Commercial secrets and government information related to personal privacy can be disclosed.” Based on this, government data opening should not open data involving state secrets, and should be combined with the provisions of the Law on Guarding State Secrets to determine what “state secrets” are. As for whether to open and how to open government data that may involve commercial secrets and personal privacy, it is necessary to explore and study the "Government Information Disclosure Regulations" and the provisions in the corresponding commercial secret legislation and civil legislation, and conduct case-by-case analysis. The interests are weighed between the public interests, commercial secrets, and personal privacy.
3. Compilation of government data catalogues reasonably.
Government data catalogues should not be compiled on the basis of open datasets and data. Instead, the government data catalog should be compiled first, and then the corresponding data should be released. The government data catalogue may include a government data resource catalogue and an open catalogue, and an open government data catalogue can be actively published on the government website to listen to the public's opinions and suggestions on the scope of the catalogue. Where the catalog is adjusted due to amendments to laws and regulations or changes in administrative functions, the administrative organ shall update the catalog accordingly.
(3) Improve the procedural mechanism of government data opening
First, construct a confidential review procedure for open government data to judge the sensitivity level of government data.
According to the sensitivity of government data, data can be divided into state secret data, user privacy data and non-sensitive data. For data involving state secrets, in principle, it is not allowed to be opened. For some data that needs to be opened, it is necessary to perform declassification processing and control the type of data analysis; for data involving user privacy, it is regarded as internal data, which does not violate national laws and regulations. Under certain conditions, it can be opened or desensitized; for non-sensitive data, it can be completely opened.
Second, the administrative counterpart should be given the right to request the opening of government data.
Citizens, legal persons and other organizations may apply for open demand through an open platform or other means for government data that should be included in the open catalog but not listed, or should be opened but not open. The administrative body responsible for providing government data shall respond in a timely manner, and those who agree shall be listed in the open catalogue or open data in a timely manner, and those who do not agree shall explain the reasons.
Third, within the administrative system, introduce performance appraisal that is open to government data.
In the future, the people's governments at or above the county level should include government data opening work in the annual target performance assessment, and can entrust a third party to evaluate the performance of government data opening, and encourage third parties to independently evaluate the performance of government data opening.
(4) Defining the standards for open government data
Open government data requires anyone to use and reuse corresponding electronic data at any time and any place, which requires the standardization of government data openness, including data collection, data format, and data structure standardization. The same text, the same vehicle and the same track", to ensure the interconnection, openness and sharing of data. At present, there are many kinds of data resources open to government data in my country, and the data formats, release standards and metadata are not unified. Government departments sometimes publish data in the form of word files, .pdf files or complex html web page files, which may be convenient, but it makes it difficult for systems or machines to extract data, which is not conducive to users' utilization. Data standards should require that data be not only human-readable, but also machine-readable. To this end, data should be published in various machine-readable formats such as CSV, XLS, JSON, XML, Shapefile, etc., and government data in multiple open formats should be provided as much as possible, rather than data in a single format, so that data users with different needs can more easily For convenient value-added utilization of data. At present, the requirements, formats, and content of data uploaded by various departments are not uniform; there is a lack of comprehensive and complete metadata on the government data open portal, that is, lack of data about data. In the future, we should formulate and implement a standard system of government data open standards, establish government data collection quality assurance and safety management standards as soon as possible, and accelerate the establishment of a data open standard system for government departments, institutions and other public institutions. It is necessary to prevent one term and one item from referring to different matters, and also prevent different terms and items from referring to one matter. Government data should be required to meet minimum standards of availability, accuracy, completeness, consistency, timeliness and machine readable to maximize the ability to capture and reuse data. When constructing government data open platforms, mobile phone software, etc., we should try to choose a structure similar to open data. By unifying data exchange standards, integrating data resources released by various departments, reducing technical barriers to government data openness, it is beneficial for the public to make better use of open data.
4. Open government data and better governance
Data and information play a fundamental role in governance capabilities, and the government is at the crux of the data and information modality, mastering huge and complete information. In order to achieve the goal of better governance, it is necessary to build a unified sharing and exchange platform for government data, improve the quality of open government data, and better promote the openness of government data through the introduction of cooperative governance between the government, enterprises and the public, so that open data can be transformed from original data. Transform into actionable knowledge for better governance goals.
(1) Construction of an open platform for government data
In China, the "Outline of Action for Promoting the Development of Big Data" issued by the State Council in 2015 also clearly pointed out that it is necessary to accelerate the integration of government information platforms, eliminate information islands, and build a unified open platform for national government data by the end of 2018. In principle, the relevant departments and governments below the prefecture level (excluding the prefecture level) will no longer be approved to build isolated information platforms and information systems.” In China, the difficulty of building a unified open data platform lies in the data acquisition channels of different departments The differences, screening criteria and data quality also highlight the difficulties of departmental coordination and government information sharing. Existing open government data resources should be integrated to establish a cross-system and cross-department unified open data platform to connect the open data and database information of administrative agencies with the open data platform, so as to prevent the problems of separate battles and duplication and dispersion. Provide the public with one-stop government data acquisition and related services.
(2) Ensuring regular updates of government data
Ensuring that governments regularly update open data is increasingly part of government data openness policies. Australia's Government 20 Working Group recommends that, in practice, public sector information be updated as early and regularly as possible. At present, there are no regulations and policies in my country to regulate the update frequency of government data. In practice, the Shanghai government data open platform has done a good job. Within four days from October 10, 2016 to October 13, 2016, the update includes construction-related industries. Twenty items of government data product information, including association information, domestic garbage collection point information, housing quality inspection personnel information, water cleaning enterprise information, park green space information, etc. However, from August 1, 2016 to October 13, 2016, Beijing Municipal Affairs Data Resource Network only published information on four government data products. In the future, we can consider setting up automatic inspection procedures in the government data open platform, and regularly urge relevant departments to update open government data.
(3) Constructing a simplified and user-friendly open government data system
Professor Sunstein, an American scholar, once talked about simplifying the government and building a user-friendly information disclosure system. It is pointed out that it is difficult for users to accept complicated and disorganized things. Only by simplifying the complex can we enhance user satisfaction. Therefore, it is recommended to simplify the complex and simplify it according to the principles of behavioral economics. Define implied options to disclose information in a simplified, clear, and user-friendly manner to accomplish administrative tasks.
As far as the construction of the government data open system is concerned, it is necessary to create a simplified and user-friendly data open platform, construct a "findable government", and strengthen the governance capability of government information resources.
The current status is:
First, the vast majority of the public are unaware of the existence of a government data open platform, and thus cannot use the data open platform.
Second, the classification of data openness is too simple, and there are few types of items under the catalogue level, which makes it inconvenient to find the corresponding data through the catalogue "by map and search". Third, using the built-in search engine of the data open platform often fails to search for the desired data.
Fourth, when obtaining and downloading platform data, it is often necessary to register and log in in advance, which affects the enthusiasm and satisfaction of the public to obtain platform data. In the future, we should use government websites, social media, search engines, etc., to let more people understand the existence of government data open platforms, understand the content of government data openness and its meaning to themselves, understand how to use open platforms, and increase public attention and participation. degree and support.
V. Conclusion
Compared with the right to request government information protected by the government information disclosure legislation, government data opening relies more on the active opening of government data by administrative agencies. If the open government information stems from the demands of administrative legitimacy, then the open government data is rooted in the need to effectively perform administrative tasks.
The purpose of government data opening legislation is to respond to the surge in the quantity, type and mobility of government data in the era of big data, promote the opening of public data resources through legislation, thereby improving government governance and service levels, stimulating market vitality and social creativity , and promoting economic growth . Innovation and economic and social development . The relationship between government data openness and personal information protection should be balanced. Article 76 of the "Internet Security Law of the People's Republic of China" stipulates: "Personal information refers to all kinds of information recorded by electronic or other means that can identify a natural person's personal identity alone or in combination with other information, including but not limited to the natural person's name, birth Date, ID number, personal biometric information, address, phone number, etc." Article 111 of the General Principles of the Civil Law of the People's Republic of China stipulates that "the personal information of natural persons shall be protected by law". In the construction of the legal system of Chinese government data opening, attention should be paid to the protection of personal information and personal privacy.
When opening government data involving personal privacy, the principles of legality, legitimacy, and necessity shall be followed, the rules of government data opening shall be disclosed, the purpose, method and scope of government data opening shall be clearly stated, and the consent of the right holder shall be obtained. For data involving personal privacy, the relevant data can also be anonymized, so that for the anonymized data, the party of the data cannot be identified by "all reasonable methods". At this time, the relevant data is not personal privacy. information can be included in the scope of government data opening. This article discusses the development and construction of China's government data openness legal system.
At present, there is no unified and complete legislation on government data opening in my country. It is suggested that the State Council should first promulgate the "Government Data Opening Regulations" to define the legal tasks of government data opening. The scope of government data opening should be further expanded, with openness as the principle and non-openness as the exception. A normative system of open government data standards should be developed and implemented, requiring data to meet minimum standards such as availability, accuracy, integrity, consistency, timeliness, and machine-readable. Through the construction of a unified open data platform, the machine readability of data can be improved, the regular update of data can be ensured, a simplified and user-friendly open government data system can be constructed, and the level of data governance can be improved.
Source: "Administrative Law Research"