Strengthening the principle of transparency in the Canton of Uri

Basel, 23.01.2025

​Consultation response on the partial revision of the Act on the Principle of Transparency in the Cantonal Administration in the Canton of Uri

Opendata.ch took the opportunity offered to it to take part in the Canton of Uri’s “consultation on the amendment of the Act on the Principle of Transparency in the Cantonal Administration (Transparency Act; OeG)”. The draft still leaves considerable room for improvement.

The canton’s questions on the consultation draft and our answers

Question 1

The draft provides in Article 2 paragraph 1 OeG that the Transparency Act will in future also apply to the municipalities.

This meets a concern of the adopted motion by Ludwig Loretz, Andermatt, on «Openness and transparency in Uri».

What is your position on extending the principle of transparency to the municipalities?

Opendata.ch’s answer: Agree

Comments: none

Question 2

The draft provides in Article 2 paragraph 3 OeG that, as before, the Act does not apply to the Urner Kantonalbank and, newly, also generally not to the areas in which public bodies take part in economic competition and act under private law rather than in the performance of a public task.

This point, too, is a concern of the adopted motion by Ludwig Loretz, Andermatt, on «Openness and transparency in Uri».

What is your position on this?

Opendata.ch’s answer: Partly agree

Comments: With regard to open government data, we would like to point out that a cantonal bank in particular holds valuable data on the economic situation and development of a canton, for example, which is of public interest and should therefore also be freely usable. This is likely to apply to other commercially oriented enterprises owned by the canton or the municipalities as well. An absolute exclusion therefore seems wrong to us; as with other data, the exclusion should remain limited to the protection of overriding private and public interests – data and information protection. After all, public enterprises such as SBB are an important part of the open government data infrastructure at federal level. In addition, the Act should continue to apply to public and private health institutions when they receive a public service mandate.

II. Reserved provisions

Question 3

For clarification, Article 2a OeG introduces a new reservation clause, according to which

• access to official documents containing personal data of the applicant is governed by the cantonal Data Protection Act (para. 1) and
• statutory provisions that designate certain information as secret or provide for conditions of access to certain information that differ from this Act remain reserved (para. 2).

Do you agree that these special provisions should generally take precedence over the Transparency Act?

Opendata.ch’s answer: Partly agree

Comments: We agree with this provision in principle, but must point out that refusals of access to and use of (open government) data are often also based, unjustifiably, on grounds of data or information protection law. We therefore consider it appropriate to add a clause along the lines of: The protection of legitimate and overriding data protection or confidentiality interests (information protection) remains reserved.

In our view, Article 6 para. 1 of this Act is better worded in this respect. Perhaps a single provision in the entire Act would suffice.

III. Open government data

Question 4

Article 4 OeG newly defines the terms «open government data» and «dataset». Open government data are official documents in the form of datasets that are made freely accessible and provided without restrictions on use, and for which no fees are charged for access and use (para. 1). A dataset is a thematically delimitable collection of related and structured digital data (para. 2).

The definition of open government data is connected with the implementation of the postulate by Kurt Gisler, Altdorf, on «Uri publishes and uses Open Government Data», which was referred to the government.

Do you agree with these definitions?

Opendata.ch’s answer: Partly agree

Comments: We have the impression that the definitions are still too closely oriented towards the paper world or traditional data processing, and we propose a broader understanding of data: 

Data “are all isolated or isolable units that can be processed and analysed by machine. These include, for example, intentionally produced data (e.g. statistics, financial data, register data), measurement data (e.g. weather data, certain geodata, traffic measurements), but also other information that can be treated as data, such as lists (e.g. health insurance premiums, prohibited substances, goods that may not be exported), structured or unstructured texts (e.g. archive or library catalogues, legal texts) or multimedia productions (digital image, sound or video documents together with their metadata). Because of the difficulty of positively defining the data concerned in a cross-cutting provision in a way that suits all administrative units, the approach taken is that in principle all data are to be published in accordance with the principles of OGD, unless they fall into one of the clearly defined exclusion categories.” (from the Dispatch on the Federal Act on the Use of Electronic Means to Fulfil Official Tasks (p. 42) [https://www.newsd.admin.ch/newsd/message/attachments/70496.pdf])

Question 5

Article 5a OeG newly regulates the «provision of open government data». It provides that the cantonal government and the municipal council shall, for their respective public body, lay down the conditions under which open government data are made freely available. Both are to regulate, for their areas, the procedures, entitlements, competences and responsibilities in dealing with open government data.

Making open government data increasingly available to the public is a concern of the postulate by Kurt Gisler, Altdorf, on «Uri publishes and uses Open Government Data».

The proposal to delegate regulatory competence to the executive authorities (government and municipal council) is based on the consideration that this allows needs-based and tailor-made solutions, so that public bodies are not overstretched in terms of staff, finances and administration.

What is your position on this solution?

Opendata.ch’s answer: Partly agree

Comments: We advocate the principle of open by default: government data should be made available as open data by default. Exceptions to the obligation to publish must therefore be soundly justified, based on legitimate and overriding data and information protection rights. Publication should then take place centrally, so that the effort of searching for data is minimised (a portal solution as at federal level and in many cantons). In our view it is right for the executive authorities to specify how the principle of open by default is implemented; however, a uniform canton-wide solution seems advisable to us, in order to forestall a bewildering variety of different municipal solutions.

IV. Further points of the revision

Question 6

Owing to the changed scope, Article 5 paragraph 2 OeG now names, alongside the cantonal government, the municipal council as well as the body that informs about the work of the administration. As before, this task can be delegated to the directorates or administrative units insofar as their field of activity is concerned.

What is your position on this?

Opendata.ch’s answer: Agree

Comments: none

Question 7

Under Article 6 paragraph 1 OeG, «every person» will in future have the right to inspect official documents and to obtain information from the authorities on the content of official documents, unless overriding public or legitimate private interests stand in the way. Until now, the right of inspection in Uri was reserved for «persons of full age», i.e. persons over 18. The meaning, purpose and motive of this restriction cannot be inferred from the legislative materials. In any event, Uri remains alone in Switzerland with this restriction to this day. The restriction is therefore to be dropped.

What is your position on this?

Opendata.ch’s answer: Agree

Comments: On Article 6 paras. 2 and 3: the conditional (“could”, “would”) should be avoided, as it contradicts the legal practice of the Confederation and most cantons. A more specific wording helps to avoid unnecessary legal proceedings about theoretical possibilities of a potential impairment of the protected public interests and provides greater legal certainty.

Question 8

Article 6a OeG regulates the restriction and refusal of access to official documents, in line with the current rules and the case law on them. New in paragraph 5 is an explicit provision that requests for exploratory purposes, which search without any thematic delimitation in unspecified documents for something that might possibly be worth deeper knowledge, are not protected by the Transparency Act. This provision aims to prevent so-called «fishing expeditions». Apparently such (frowned-upon) speculative requests for exploratory purposes are increasing in other cantons, causing a heavy administrative burden.

What is your position on this provision, which aims to prevent «fishing expeditions»?

Opendata.ch’s answer: Disagree

Comments: We understand the intention, but the danger is that the baby is thrown out with the bathwater. We believe that this risk must be accepted today. With a general exclusion of broad requests, there is a risk that legitimate requests for information are blocked from the outset. Instead, proportionality should be examined. The authority can ask applicants, in dialogue, to make their request more specific. Fees could be charged for particularly time-consuming requests in order to prevent a disproportionate burden on the administration. For data that has been published, the effort of providing data in the individual case disappears anyway.

Question 9

Under current law, requests for access to official documents must be submitted in writing and signed (Art. 8 OeG). In current practice, email requests are also accepted and answered. In future, a signature will explicitly no longer be required and the request can be submitted electronically. This simplification is also a concern of the adopted motion by Ludwig Loretz, Andermatt, on «Openness and transparency in Uri».

What is your position on this?

Opendata.ch’s answer: Partly agree

Comments: For access to official documents this is fine in principle; access to government data in the broader sense, on the other hand, should be possible without a request if the principle of open by default is applied.

Not only applicants but also the administration should be obliged to inform journalists and other applicants as quickly as possible about the documents available on a topic. In this way, access requests can be made in a targeted and precise manner, which further minimises the administrative burden and promotes transparency.

Question 10

By analogy with the transitional provision of a good 20 years ago, when the principle of transparency was introduced for the canton, the bill provides in Article 11a OeG that it applies only to those official documents of the municipalities that were produced or received by the municipal authorities after the entry into force of this revision.

What is your position on this transitional provision?

Opendata.ch’s answer: Partly agree

Comments: Insofar as the publication of government data does indeed involve effort, we understand this. However, retroactive publication of data available in digital form should be considered, since in many cases the value of data lies precisely in long time series. For data that would first have to be digitised, the further procedure under this reservation should be examined carefully; it may also be in the interest of the authorities to digitise such data series.

Further comments

Art. 9 Costs of access to official documents

It is regrettable that in the Canton of Uri only information given orally and inspection on site are free of charge “as a rule”. In keeping with the times, this should also apply to the sending of electronic documents. Furthermore, the Act provides that fees may be charged where the effort is “not insignificant”. It is legitimate for the administration to defend itself against excessive access requests that bear no relation to the public interest. This should be clearly worded in the Act, for example: “Fees may be charged if the effort of processing an access request is particularly high and the public interest in access does not justify the resulting costs.”

The provision on charging fees for “regularly repeated requests”, on the other hand, does not serve the principle of transparency. It may well be in the public interest for journalists and other interested actors  to regularly request an internal annual report in order to ensure the public scrutiny of the administration provided for in the Act. These provisions must be deleted in order to ensure the transparency fundamentally demanded by the legislator.

Missing processing deadlines

Stating clear deadlines in the Act strengthens trust in the administration and increases the efficiency of processing. Deadline rules are also customary at federal level and in almost all cantons.

Inspection

Documents should be sent by email by default. Electronic files can be processed efficiently, for instance when redactions are necessary, and forwarding by email is a logical, efficient final step. The Act should be designed with the future in mind.