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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