Published: 12 August 2024. Writer: Sofia Heikkonen
The legitimacy of climate actions on the EU level partly pends on the possibility for people to get informed of the decisions and their processes through access to information. Recent research on the Commission’s main document register has revealed that the technological design of the register is able to hinder the access of the documents.
Access to documents is central in achieving legitimate climate policies. Consider the following scenario: You have just heard that a new regulation on fluorinated greenhouse gases has been entered into force in the EU. Interested in the topic, you go to the Commissions’ document register to find out more. You insert “Regulation on fluorinated greenhouse gases” in the search bar and press search. The result? 265 documents. First one is about distortions in the economy of China and the second about the Commission establishing a common rating scheme for data centres… How can this be?
Photo: ”Keyword search from the Register of Commission Documents”:
https://ec.europa.eu/transparency/documents-register/
Transparency is a precondition of the legitimacy of climate policy
Transparent governance is a key tenet for just and legitimate climate policies. Transparency (and access to documents) is a precondition for accountability, legitimacy as well as effective citizen engagement. These central goals are highlighted in political rhetoric in the EU as well as in codified law (e.g. Aarhus Convention). Furthermore, access to official documents is a necessity for multiple professions, such as researchers or journalists to conduct their work. The legitimacy of climate actions on the EU level partly pends on the possibility for people to get informed of the decisions and their processes through access to information. This is where proactive access to documents via the institution’s document registers play an integral part.
The technological design of the register is able to hinder the access of the documents
Recent cross disciplinary research on the Commission’s main document register RegDoc has revealed how the technological design of register is able to hinder the ability to exercise the right to access documents. In other words, the register, as a digital technology, functions as a regulatory actor in the sphere. While the transparency regulation (1049/2001) lays down the foundations for legal regulation on access to documents, the legislation is unable to catch the whole process of access to documents via document registers.
In reality, the design choices in the creation of the technological tool do not simply only affect the ability to gain access to documents but also the types of users who are better equipped to gain such access. Technological design is always embedded with assumptions as to whom the technology is designed to cater for. Such decisions are not necessarily intentional, but it has long been acknowledged in human-computer interaction studies that technology is always designed with a certain user with certain abilities in mind. In legal terms the right to access documents is limited only by the article 4 exceptions, and therefore should not rely on the abilities of users. From transparency’s point of view, it is rather questionable that exercising the right to access to documents through the register is limited based on the users’ abilities.
A closer look on the RegDoc revealed two main technological features which independently limit access to documents via the register. These are the scope of the dataset (what type of documents the register includes) and the searchability functions of the register. Without diving too deep into the technical functionalities, I highlight one major design decision which explains the result such as the example on fluorinated greenhouse gases. That is the lack of subject matter metadata accompanying the documents. While subject matter metadata is required by the transparency Regulation (art 11(2)), it is lacking from the documents in the RegDoc. This results in unrelated searches in situations where the searcher does not know the specific name or number of the document they wish to access.
Design of the technology may have a great effect on the transparency
By exploring the technical features which make a legal difference in the process of accessing documents, it becomes clear that the design of the legally relevant technology may have a great effect on the transparency of the institution. What makes the matter pressing is that the technology is available to reconcile the problems. To reach the effects wanted from transparency, more emphasis should be given to the functioning of these tools that can foster and hinder access. Technological design should not be a reason for limiting the legal right to access documents, especially when the limits can be reconciled with proper tools.
Read the full article: https://www.cambridge.org/core/journals/european-law-open/article/transparency-materialised-how-registers-can-regulate-access-to-documents/8B1E29DE10D89C1A87350E0E65E02C2E