Crack Ias Public Administration Notes Pdf
Jalisa Landgren
Various due process provisions designed for use by civil servants in administrative decision-making may become redundant when automated decision-making is taken into use in public administration. Problems with mechanisms of good government, responsibility and liability for automated decisions and the rule of law require attention of the law-maker in adapting legal provisions to this new form of decision-making. Although the general data protection regulation of the European Union is important in acknowledging automated decision-making, most of the legal safeguards within administrative due process have to be provided for by the national law-maker. It is suggested that all countries have a need to review their rules of administrative due process with a view to bringing them up to date regarding the requirements of automated decision-making. In whichever way the legislation is framed, the key issues are that persons who develop the algorithm and the code as well as persons who run or deal with the software within public authorities are aware of the preventive safeguards of legality in the context of automated decision-making, not only of the reactive safeguards constituted by the complaint procedures, and that legal mechanisms exist under which these persons can be held accountable and liable for decisions produced by automated decision-making. It is also argued that only rule-based systems of automatized decision-making are compatible with the rule of law and that there is a general interest in preventing a development into a rule of algorithm.
In particular, expectations of speedy decision-making have an impact on areas of public administration where so-called mass decisions are made (taxation, social benefits, etc.) and where ADM can be used to perform tasks of an uncomplicated nature. Legislation may, indeed, contain provisions that underline the need for fast decision-making, which is the case, for instance, in Finland: according to Section 21(1) of the Constitution of Finland (731/1999), everyone has the right to have his or her case dealt with without undue delay. The provision is repeated in Section 23(1) of the Administration Act (434/2003), according to which an administrative matter must be dealt with without undue delay, supported by a provision in Section 14(1) of the Act on the Civil Servants of the State (750/1994), according to which a civil servant of the state must perform his or her tasks without delay. For these structural reasons alone, and to support the use of ADM in public administration, it is important to analyze the preconditions of an administrative due process nature that ADM either is or should be placed under, not only in Finland but also in other countries.
However, few substantive requirements are currently imposed upon ADM. At the European level, Art. 22 of the General Data Protection Regulation of the European Union (2016/679; the GDPR) creates, as of 25 May 2018, a right for an individual to opt out from ADM as long as the ADM procedure is not regulated in national or European law so as to make it compulsory for the individual. In addition, Articles 13(2)(f), 14(2)(g) and 15(1)(h) of the GDPR create a right for the individual to know the logic of the ADM. However, this EU regulation is relatively narrowly confined to the area of data protection; whilst important in itself, it leaves a large part of ADM processes to be regulated in other law, mainly at the national level. National ADM rules vary from non-existent to very general and in some cases to specific rules on particular ADM systems (Malgieri 2019). In Sweden, the new Administration Act (2017:900), in force since 1 July 2018, contains a very open provision in Section 28(1), according to which an administrative decision may be made by an individual civil servant alone, or jointly by several civil servants, or by way of automated procedure (Suksi 2018a). In Finland, it appears that old provisions on decision-making might apply, as supplemented by the Act on Electronic Communication in the Activities of Public Authorities (13/2003), which, inter alia, makes it possible to sign decisions electronically, although it does not contain substantive rules about decision-making by ADM (Suksi 2018b). The assumption appears to be that the existing legislation is technology neutral, but at least Section 118 of the Constitution of Finland and Section 91 of the Local Government Act (410/2015) depart from a premise of human beings as decision-makers.
This article deals with the issue of fully automated decision-making and does not explicitly consider the use of ADM as decision-support when civil servants are making decisions. The discussion is here carried out largely from a Finnish perspective, with some limited observations concerning Sweden, Denmark and other countries. However, the issues relating to the use of ADM in public administration are of a general nature. It is therefore hoped that readers may relate these notes to corresponding phenomena in their own jurisdictions.
Another major issue appears to be that the use of ADM renders redundant a considerable proportion of the procedural rules that national law has created for decision-making by a human being. The decision to use ADM, often made by a public authority without any backing from an Act of Parliament, thus in effect sets aside legislation such as provisions concerning good government designed under the assumption that the decision-maker is a human being. In essence, this means that the internal decision by a public authority to start to use ADM is almost of a legislative nature. Yet at the same time, there are few rules in current law that require anything of ADM systems in terms of good governance. To what extent can ADM, producing consequences of this kind, be used in (Finnish) public administration? Summarizing the above issues, it can be asked whether the ADM should (and could) be made to comply with existing law, or should existing law be amended to accommodate ADM. As the suggestions in Sect. 7 below indicate, the former is preferred.
By way of example, it can be seen that certain safeguards required by Section 21 of the Constitution of Finland, as established in the Administration Act, are rendered obsolete by the use of ADM, thereby weakening the system of preventive safeguards ex ante of the law in administrative proceedings. What impact does the use of ADM have on preventive legal safeguards in administrative due process? Further, the use of ADM not only impacts on preventive safeguards and preventive legal protection of the individual in relation to administrative decision-making, but also weakens the reactive safeguards ex post, that is, legal guarantees after the administrative decision has been made. For instance, the legal responsibility in criminal law and in tort law of a civil servant for decisions involving public powers, as established in Section 118 of the Constitution on official accountability, loses its ratione personae when a public authority uses an ADM system. What, then, is the impact of the use of ADM on the liability of civil servants?
According to the CC, an algorithm which is the basis of an individual administrative decision is subject to three conditions: 1) an individual administrative decision must explicitly mention that it has been adopted on the basis of an algorithm and the main characteristics of implementing the latter must be communicated to the person in question, upon their request; 2) the individual administrative decision must be subject to administrative recourse, and the administrative decision, in the event of a dispute, must be reviewed by a judge, who may require the administration to disclose the characteristics of the algorithm; 3) the use of an algorithm alone is excluded if the data processing relates to any of the sensitive data mentioned in Paragraph I of Article 8 of the Law of 6 January 1978. Meanwhile, ADM has been taken into use in the public administrations of many countries, often without a legal basis and without comprehensive rules safeguarding administrative due process. The former data protection directive of the EU (95/46/EC), adopted in 1995 but now repealed, also contributed to awareness about ADM.
Art. 22 of the GDPR is often understood as a general prohibition of ADM, and if understood as such with regard to ADM by public authorities, it would have dramatic consequences in Member States of the EU. This interpretation appears to arise from Chapter IV of the Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, adopted by the Working Party on the Protection of Individuals with regard to the Processing of Personal Data (last revised and adopted on 6 February 2018; endorsed by the European Data Protection Board on 25 May 2018). This is an understanding that has caused some controversy (Bodea et al. 2018, 40, fn. 60), because up to half of the Member States do not consider the provision to be a prohibition.
The Opinions of the Constitutional Committee also raise the issue of transparency, against the background of Section 12(2) of the Constitution of Finland, which establishes the right of access to documents. The relevant Government Bills suggested that the algorithm that has resulted in a final decision of the public authority by means of ADM should be public. In addition, the registered individual would have the right to receive a separate explanation about the algorithm that has been used in the ADM process for an individual decision in her or his case. The Constitutional Committee repeated its previous observations about the publication of the algorithm and emphasized that a correct publication of the algorithm in a form that is understandable for individual persons requires that the law contains an exact and well-delineated definition of ADM by means of an algorithm. The Committee was of the opinion that the proposed provisions about the publication of algorithms should be made more precise and clear before the proposed law could be adopted in the ordinary legislative procedure. It can be added that this would also be important in the event that the individual wants to use his or her right to appeal, because such provisions in law would also enable the courts to understand the matter and thus perform a review of the case.
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