Detailed summary for the master course "Data Science Regulation & Law" at Tilburg University (Data Science and Society). Summary contains all information from the slides, plus notes. It applies to cluster 4 (Public / Administrative and criminal law and data science) and cluster 5 (Ethics).
Antwoord: The law regulating the public administration (‘executive function’ of the State) and its relationship with citizens.
2.
What is Constitutional Law?
Antwoord: Body of law that defines the role, powers, and structure of different entities within a state.
3.
Why is Administrative Law both ‘of’ the state and ‘against’ the state?
Antwoord: - Of the state = administrative law gives instruments / toolbox to the government to achieve certain goals
- Against the state = protection of citizens against the government
4.
Why do administrative actors need discretion in fulfilling their task?
Antwoord: The legislative power cannot legislate on every single aspect of society due to a need for customization and technological developments. Thus, legislative powers are only able to give general instructions.
5.
Name 3 principles of good administration:
Antwoord: - Principle of lawfulness (in accordance with the law)
- Principle of non-discrimination / equal treatment;
- Principle of legal certainty;
- Principle of proportionality; (relationship between goals and means)
- Principle of legitimate expectations;
- The right to a fair hearing before an adverse decision is taken
- The right to have one’s affairs handled impartially and fairly.
6.
What are the two main objectives of the General Administrative Law Act?
Antwoord: - Harmonization: more uniformity across different sectors (uniformity sectors)
- Codification (of case-law)
7.
What is the difference between data and information?
Antwoord: Data precedes information. Meaning, information is what you extract from data
8.
What are the three stages of Big Data processes?
Antwoord: 1. Collection (storage and preparation)
2. Analysis (interpretation)
3. Data Use (data driven applications)
9.
What is FOIA?
Antwoord: FOIA legislation is the only way to allow access by the general public to data held by public bodies
10.
What is the difference between \'Document-based systems’ and ‘information-based systems’? (FOIA)
Antwoord: Document-Based = interested in a specific document
Information-Based = interested in a specific topic
Voorbeeld van de inhoud
Data Science Regulation & Law Tilburg University 2019-2020
LECTURE 9 (PUBLIC LAW)
What is public law?
Public bodies, such as central and local government, must obey the law. The type of law governing the conduct
of public bodies is known as ‘public law’. Public law is mainly administrative law and constitutional law.
However, other domains, like criminal law, might be considered as part of public law as well from certain
perspectives.
Administrative Law: The law regulating the public administration (‘executive function’ of the State) and its
relationship with citizens. Administrative law regulates how the government and its citizens interact.
- Background: Trias Politica (Montesquieu): Legislative power | Executive power | Judicial power
- Public administration: Public administration is the implementation of government policy (= executive
power)
- Data are essential to decision-making for government agencies. Thus, administrative decision-making
is a data-processing procedure
Constitutional law: Body of law that defines the role, powers, and structure of different entities within a state.
No clear dividing line between constitutional and administrative law
Function of Administrative Law: Administrative law is both ‘of’ the state and ‘against’ the state
- Problematic but necessary tension between ‘effective government’ (capable administration) and
‘protection of individual rights’ (accountable administration)
- Of the state = administrative law gives instruments / toolbox to the government to achieve certain
objectives (capable)
- Against the state = protection of citizens against the government (accountable)
Key aspects about Administrative Law: Rechtsstaat / Rule of law: administrative actors should be conferred
determined powers by law (Act of Parliament) for specific purposes (principle of legality)
- The executive party can’t act unless the legislative party conferred powers to them for specific
purposes. You can’t use your power for other purposes.
- But: the legislative power cannot legislate on every single aspect of society due to:
o Need for customization (maatwerk) = You can’t prescribe how to deal with a specific case on
the legislative level. Every case is different; you only have general legislative rules.
o Technological development: General instructions → interpretation given on administrative
level
- In other words: administrative actors need discretion in fulfilling their task
- Discretion means the freedom to apply rules in specific settings. This helps to make optimal decisions
for each case.
- Hence: balancing exercise between effective decision-making and protection of individual rights
,Data Science Regulation & Law Tilburg University 2019-2020
Example question:
- Of the state = Toolbox to know who is going to act and how.
- Against the state = This provision gives legal refusal grounds. They can only use refuse a license in
these four situations. Legislative power is very clear about the decisions that are/were made.
- Discretion: Decision is open to interpretation by the administrative assembly → (“May refuse”)
- Data can help to use discretion in a consistent way
Principles of good administration: Is not necessarily restricted to administrative decisions. We need these
principles to limit the behavior of the administration (useful with respect to administrative discretion).
- Principle of lawfulness (in accordance with the law)
- Principle of non-discrimination / equal treatment;
- Principle of legal certainty;
- Principle of proportionality; (relationship between goals and means)
- Principle of legitimate expectations;
- The right to a fair hearing before an adverse decision is taken
- The right to have one’s affairs handled impartially and fairly.
These principles can apply to all communication between administration and citizens.
Administrative decision-making:
- If you disagree with a decision, you do not go to the judge immediately, you first apply for an
administrative reconsideration.
Sources of administrative law (general):
1. International Treaties, EU Law:
2. Constitution: key document of constitutional law
3. Statutes / Act of Parliament (legislation)
- General legislation: ‘Administrative procedure acts’ (APA) / General Administrative Law Act
- Sector specific legislation (Telecommunications Act, Migration Act, etc.)
4. Delegated rulemaking (agency regulations, governmental decrees, executive orders)
- Implementation of statutes at lower levels
5. Case-law (judjges)
, Data Science Regulation & Law Tilburg University 2019-2020
General Administrative Law Act: General definitions that we can use for all sorts of objectives.
- Objectives
- Harmonization: more uniformity across different sectors (uniformity sectors)
- Codification (of case-law)
- Contents
- Communication between public bodies and citizens (in general; e.g. use of language)
- Administrative decision-making (general rule and/or single case; e.g. publicity of
administrative decisions)
- Judicial procedures (e.g. access to documents in trials) When you disagree with a decision
- Scope:
- Public bodies: defines whether you are in administrative law or not
- Administrative action in general and decision-making in particular
Public bodies: The general denomination for administrative divisions such as the central government
(parliament, government, ministries), a province, or a municipality.
- Data: Smart Cities? Smart cities are urban centers that harness technologies such as big data,
algorithms, and Internet of Things (‘IoT’) to enhance innovation and urban competitiveness.
- Difficult to frame in system of public bodies
- Does not exist in legislation, but still relevant from a data science perspective
Becoming a public body:
- Have they been established by statute? (public body by nature)
- Have they been awarded ‘statutory powers’?
Suwinet Case: Suwinet is a system in which municipalities share information about citizens with government
agencies. Assume Brad and Linda want access to this private database to verify dating profiles.
- Which laws and regulations regulate this problem (sources)?
- General Administrative Law Act / Wet SUWI
- Do these laws and regulations apply to me (scope)?
- Am I a public body? If not, it should be private law instead of public law.
- Suwinet is only accessible for public bodies
- Does the concrete situation fall under these obligations?
- Type of administrative action: single-case decision making
Thus, Brad and Linda won’t get access
Administrative action: Each type of administrative action is governed by its own rules, but some rules (e.g.
general principles) can apply to any type of administrative action.
- (Written) unilateral decision with legal effect (‘administrative decision’). Government can make
decisions without your consent. They do not have to agree with you.
- General rulemaking
- Single-case decision-making
- Other administrative action (Not necessarily a decision with legal effect as a result)
- Investigations?
- Data management (data collection | data analysis | Data use)
Key concepts in administrative law: ‘Public bodies’ and ‘administrative decision’
- Limitations: public bodies must follow specified administrative procedures and principles many of
which can be found in APAs
- Protections: APAs / GALAs also contain procedures that help citizens and businesses to ‘fight a fair
fight’ with public bodies
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