The source code developed by a State services software is there a “ administrative Document “as another, since communicable principle by the citizen who requests it? Yes, just answer the Paris Administrative Court. Explanations.
After nearly two years of proceedings, the Ministry of Finance is committed to open next April 1, the source code of its tax calculation software on income. This decision follows the debates on the draft Digital law, but also – and especially – the ongoing wrangle with an economics student who claimed Bercy communication of the computer file, considered in his eyes as an administrative document within the meaning of the law “CADA” of 1978.
According to this text, the administrative authorities (ministries, authorities …) are required to respond to the request of citizens who claim a document produced by them, whatever shape or form, deliberations, statistics, reports, studies … in practice, this right still has many limitations. State services have for example not to disclose information which fall within the defense secret, preparatory files “unfinished”, etc.
Bercy communicates its source code just before the justice required to do so
Invited by the student to disclose the source code of its tax calculation software on income, the Financial Branch (DGFiP) was first turned a deaf ear . Facing the implicit refusal of the tax authorities, the citizen has appealed to the Commission on Access to Administrative Documents, which gave him reason in January 2015. Bercy not having however decided to disclose its source code, this young man finally turned to the Paris administrative court, which issued its decision following a hearing on 18 February – just days after the Ministry has communicated it to his own desired file …
The judgment the court nevertheless proves important: it confirms that the source code was indeed an administrative document “communicable” citizens of principle. This decision could therefore be extended to many other source codes developed by the administration …
The court effectively rejected all the arguments presented by the Government to justify opposition DGFiP. First, Bercy argued that the 2003 and 2013 directives on reuse of public sector information is opposed to disclosure of computer programs. “Bad play,” responded in substance the tribunal. In his eyes, “ it does not follow these guidelines, which address data reuse and leave unchanged the provisions of national law on access to administrative documents, that computer programs should be systematically excluded from the right access to administrative documents held by the law of 17 July 1978 . ” In other words, EU law does not prevent a Member State to require its agencies to open their source code.
Second, the Ministry of Finance claimed that his tax calculator could not enter the field CADA law insofar as it was a document “not completed”. And because the famous software is “ evolving ” saw that there are changes every year … The Court here lifted this barrier by holding that “ if computer programs are intended to evolve with updates, each version of the source code of a computer program is of the same administrative document character completed and can be communicated in this state . ” The court noted in this respect that decision would reverse “ deprive [d] litigants an effective right to the communication of administrative documents .”
Every latest version a public software is “communicable”
the result is “ in the absence of legislation or regulations prohibiting access to computer programs source code, the Minister of Finance and public accounts could lawfully refuse to disclose the requested “concludes the administrative court. The latter symbolically set aside the decision of the tax administration while directing Bercy within two months communicate the source of its tax calculation software code on the income of individuals.
The famous file was sent to the applicant in early February, and should be available to all from next month through the work of the Etalab task (for details see our article).
“ This judgment, by which judges Bercy return to his law course, is very valuable because it will serve as reference in case of future business, reacts Frédéric Couchet, general delegate of the Association of promotion free software. Hopefully this communication rule will not be nipped in the bud by the amendment to the Digital bill to create an exception for the security of government information systems. “The benefits in person to question the validity of some legal analysis of Bercy, specifically that concerning the use of free software in the administration:” Our doubts about the quality and rigor of the opposing arguments are thereby reinforced that “
Xavier Berne
Journalist specializing in legal and political issues.
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