Open data and reuse of public sector information legal regime
Legal alert no. 165
Law no. 68/2021 was published on 26 August, and approves the general principles in matters of open data, and also transposes Directive (EU) 2019/1024, relative to the matter of open data and reuse of public sector information, therefore altering Law no. 26/2016, dated 22 August.
1. What it’s about
Law no. 68/2021 establishes a general principle of open data, which means that the entities subjected to the rules and principles of an open administration must ensure that the documents and data that they produce or make available are, when possible, open since the date of their creation, in order to make them available for citizens and organizations.
A national catalog of open data (link: https://dados.gov.pt/pt/) was created, in order to gather, reference, publish and host open data from different bodies and public administration sectors (central, regional and local). It is important to note that the open data published in this catalog must be updated and of good quality, so that they can be reused by other applications/software. It is also important to reference the provision of API (Application Programming Interface), as it is an essential tool that allows programmers to use a previously written code in order to build and incorporate certain functions into their own programs.
2. Essential concepts
It is important to note some essential concepts (new redaction of article no. 3 of Law no. 26/2016), especially the following:
a) “Open format”: a format of data made available to the public without any restrictions and reusable, regardless of the platform used, as prescribed by the legal regime that establishes the adoption of open norms in the State’s software;
b) “Reuse”: the use, by individual people or organizations, of administrative documents or data in possession of bodies and entities [subjected to the regime of Law no. 26/2016], or detained on their behalf, for commercial or non-commercial purposes different from the initial purpose for which the documents were produced;
c) “Oped data”: data in open format that can be used, reused and shared by anyone and to any purpose, as prescribed by Law no. 68/2021 and other legislation that regulated the access to information and administrative documents.
3. Investigation data
Another important aspect is the regime that results from article 27.º-B of Law no. 68/2021, in relation to investigation data, that can be reused for commercial or non-commercial purposes when:
a) They are financed by public funds; and
b) The investigators, the bodies that perform the investigation or the funding bodies have already made them available through:
a. An institutional or thematic repository;
b. Other data infrastructures or open access publications; or
Please note that this reuse is free of charge.
4. Exclusivity agreements
It is also important to mention exclusivity agreements. Law no. 68/2021 determines that the reuse of documents is allowed to all potential market players, and the agreements entered into between public administration bodies and entities or public companies and third parties do not create exclusive rights. However, when it’s necessary to attribute exclusive rights, the reason must be reassessed at least every three years. These agreements must be based on transparency and should be published on dados.gov, at least two months before their respective entry into force and every time they are altered.
5. Entry into force
Law no. 68/2021 comes into force on 1 October 2021.
To access to the entire wording of Law no. 68/2021, click here.