Download Commissioners performs mixed functions and play interrelated roles

Public role, public influence
The experience of the Catalan DPA: A broader an complex
concept of public role
I.- Introduction
The public sector has been restructured to experiment with new
forms of organization for the delivery of public services. The
trend is that “Large, multifunction government departments have
been broken into many special-purpose agencies that have a
quasi-contractual relationship with political executives(...)
activities have been given to private for-profit or non-profit
contractors or to specially built hybrid organizations that consider
themselves to be “public” in some circumstances but “private” in
others”(Alasdair Roberts, ,”Structural pluralism and the right of
information”, University of Toronto Law Jornal,vol.1,nº3,2003.).
Legislative reactions to this new structural pluralism are not
homogeneus . What about government –owned corporations? Or :
the quasi-governmental organizations-institutions
whose
governance estructure puts them between the private sector and
government departments even if they perform important public
functions?. What about bodies whose capital stock is publicly
owned? Or any organization that derives a part of its budget from
state or local funds? Some countries include as public body any
organization established by regulation for a “public purpose”: one
for the benefit of members of the community, or a substantial
segment of them.
Some countries, have expanded the definition of public bodies to
include all contractors and subcontractors, contractors who carry
out functions on behalf o a department were subject to the
administrative codes. UK give discretion to government to
include or not contractors who perform government funcions with
one important exception :all persons or organizations who provide
medical services that are paid for by the National Health Service
are subject to be considerated public.
These privat organizations that perform functions of a public
nature are considered public bodies. They perform functions that
are traditionally the exclusive prerrogative of government, they
undertake functions typically performed by goverments agencies.
Some authors, like Roberts, argue that there are few functions that
have not been undertaken by private actors at some point in the
past, even tax collection, or defence.. But we disagree with that
argument because those are the benefits of the modern State that
we should be proud to have.
Canadian constitutional law relies on a control-based test to
determine whether agencies are “governmental”, and therefore
obligated to comply with the Charter or Rights and
Freedoms(D.Jones&A. De Villars, Principles of Adminstative
Law(Toronto:Carswell, 1999)at 47-53
Quasi-gouvernmental agencies should be considered public if
they share the organizational features of the bureaucracy or are
regulated through funding or apointments.
But hat about if the organizations are nos structurally comparable
or directly controlled?
There is a more pragmatic an open approach that rejects the
classical liberal insistence on differential treatment of the public
and private spheres and recognizes that harm to fundamental
interests could as esily arise from either sector .The crucial point
should rely on the consequences of the exercise of the power and
the nature of the interests affected by it, rather than the purely
formal consideration of the source from which the power
emanated
What is important is the nature of the interests affected by the
body’s decisions, public or private, the impact of those decisions
on those interests. At the same time, we should not forget that
“the execution of a policy may be delegated to a quasi-
governmental or private organization, but the act of delgation
itself is unalterably public”(Alaisdair Roberts, op. cit.p 9)
II.- The Catalan DPA
In federal states or any other kind of state with constitutional
territorial distribution of power, as Spain, Commissioners have
not only to deal with those complex regulations but also with the
different levels of public bodies.
The Catalan Agency of Data Protection, as all commissioners
performs mixed functions and play interrelated roles (Bennett,
2002). In its short period of almost three years of experience,
this Agency exercised the usual tools of Commissioners:
“oversight, auditing, monitoring, evaluation, expert knowledge,
mediation, dispute resolution, and the balancing o competing
interests” (Flaherty, 1989)
The Catalan Agency of Data Protection make comments on the
privacy implications on new personal record systems, on
proposed legislation or when a new technology is introduced, The
resolution of complaints from data subjects is crucial as data
protectors are responsible for the receipt, investigation and
resolution of complaints. In the absence of a complaint, the are
empowered to conduct investigations on their own initiative. But
there also other processes, not so reactive and less
confrontational, like audits. Also site visits are useful when the
Commission has suspicions about the practices of an public
organisation . The Catalan Agency gives advice to autonomic
public officers on how to comply with data protection as
consultation and advice are preferable to conflict.
Even if the EU Directive remarks the difficulty to separate public
and private treatment, in Spanish Data Protection Law (LOPD )
this is the line of the distribution of power between the Spanish
DPA and the other territorial DPA, confirmed but the STC
292/2000. Obviously, all Commissioners have to be in more or
less contact with public and private bodies. We should not forget
that the developpment of new technologies comes from the
private sector.
The problem is that the simple competencial line of the spanish
law and jurisprudence creates difficulties in some important
complex areas, for instance, health and education where public
and private institutions are mixed. This is the case of Catalonia.
To solve this situation, the catalan law that creates the catalan
DPA and the new Estatut de Autonomia are more sensible to this
complex reality.
The best solution, of course, goes throught the colaboration
between these commissioners, as it is usual in any federal state,
like Germany or Canada (for example Alberta, Quebec and
British Columbia had established cooperation systems between
them in 2003). That institutional colaboration would increase data
protection. Even in the same public sector, agencies should have
more homogeneus interpretations in questions as the use of the
census.
Otherwise we could loose the benefits of an interconnected
public-private healthcare system. We risk that the current
information transfer problems in a healthcare system undermine
the quality of care by making it difficult for patients and providers
to get the information that they need when they need it in order to
make the best decisions about treatment. (Key findings of Data
Standards Working Group).
Given the competences of the DPA’s in a kind of federal state like
Spain, is out of question to ban gouvernmental outsorcing to
keep the original autonomic competences.
I insist in increasing the colaboration instruments. This is the way
to have more clear ideas, for instance, about the investigation role
of the agencies, in relation to the latest use of medical records, for
language research, in the Catalan healthcare system.
The colaborations should be pragmatic and with an open
experimentation approach . In that sense, we are having DPA
general and sectorial meetings in Madrid, Bilbao, Valencia,
Vitoria and Barcelona. To further that colaboration in a more
formal way, we should transfer information regularly.
We should meet in handling workshops to determine how to act
in front of all this complexity. In the expanding range of privately
owned businesses, that have been contacted by the government to
provide services, some of them are big enough to deserve the
action of the Spanish DPA, while others should benefit of the
proximity of the autonomous DPA
Let’s talk about it
Esther Mitjans
Director of Catalan Data Protection Agency