Comparing Regimes of Open and Limited Access to the Information Held by Public Authorities

The borderline between legal regimes allowing for the access to the public sector information and those restricting it is demonstrated, elaborating the legal mechanisms defining the general regime of public sector information to address the issue of the ambiguity of legal norms denominating the regime for the public sector information. The study aims at delimitating the division between the regimes of the open and limited access to the public sector information. First, the notion of the open government is elaborated. The regimes restricting the access to the information held by public authorities are then analyzed. Next, the peculiarities of the legal framework for the open data are revealed. Finally, the balance between the legal norms of openness and confidentiality is perceived through the lens of the mixed regimes of public sector information. The methodology involves general scientific methods (systematization), legal scientific methods (formally dogmatic approach, comparative law), and a historical method. The study shows that the principle of openness, according to which the information held by public bodies should be disclosed, unless the opposite is expressly permitted by the law, should be placed on the top of the hierarchy of legal norms pertaining to the legal framework for the public sector information. Such a principle would allow private persons and organizations to claim for the disclosure if necessary, whilst the burden of proof of the limitation of the access to such information would be on the public body. This disposition does not, however, exclude the use of a flexible approach to the delimitation of the access, taking into consideration the unclassified but protected information. While deciding on the status of the information, public body should apply the following rule: if the disclosure of the information in question is possibly of a higher social value than the refusal of it, the information is to be disclosed.