Administrative Law Past Paper PDF

General definitions Sito: Scuola di Scienze Giuridiche, Politiche ed Economico-Sociali Stampato da: Yasemin Demiryurek Corso: ADMINISTRATIVE LAW_A-L_24_25 Data: mercoledì, 8 gennaio 2025, 10:43 Libro: General definitions...

General definitions Sito: Scuola di Scienze Giuridiche, Politiche ed Economico-Sociali Stampato da: Yasemin Demiryurek Corso: ADMINISTRATIVE LAW_A-L_24_25 Data: mercoledì, 8 gennaio 2025, 10:43 Libro: General definitions https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 1 sur 13 :  Sommario 1. Digitization, data, big data, algorithm, and artificial intelligence 2. Algorithm, source code, and computer program 3. Algorithm and public decision making process: opportunities and limits 4. Case law in USA: predictive justice 5. Transparency of algorithm. The Poland’s example 6. Transparency of algorithm. The Italy’s example https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 2 sur 13 :  1. Digitization, data, big data, algorithm, and artificial intelligence It is now a truism to say that public administration is undergoing a big change and information and telecommunication technologies play an increasingly important role in the operation of public administration. The executive role is not only about applying the rules to the individual case, but also about designing IT programs that use algorithms. Public administration applies these programs, among other things, for the analysis data and decision making. Algorithms are at work in many areas of state activity, including speed control and the issuing of fines, the distribution of social benefits, the detection of tax fraud, and the assignment of judges and other public officials to specific cases. Therefore, algorithm is no longer a concept used primarily by representatives of technical sciences and experts of information and communication technologies. Its properties are of interest to those who use algorithmic procedures, but above all to those who are the addressees of the decisions made as a result of its use. The public wants to know how the state functions and why such and no other solutions are adopted. This is why universal knowledge of the algorithm has long been advocated. If the principle of openness requires that the public has the right to know the procedures and mechanisms of the operation of the state, access to the operation of the algorithm should also be public. Here are some basic definitions to better understand this unit. Data A piece of information; it could be related to personal data, environmental data, traffic data, etc. Big data refers to collected data sets that are so large and complex that they require new technologies, such as artificial intelligence, to process. The data comes from many different sources. Often they are of the same type, for example, GPS data from millions of mobile phones is used to mitigate traffic jams; but it can also be a combination, such as health records and patients' app use. Technology enables this data to be collected very fast, in near real time, and get analysed to get new insights. source: EU Parliament Digitization and digitalization Digitization is the process of transforming analogue information into a digital format. Digitalization means the use of digital technologies to speed decision making. Algorithms are encoded procedures for transforming input data into a desired output, based on specified calculations. The procedures name both a problem and the steps by which it should be solved. Instructions for navigation may be considered an algorithm, or the mathematical formulas required to predict the movement of a celestial body across the sky. Algorithms play an increasingly important role in selecting what information is considered most relevant to us, a crucial feature of our participation in public life. Search engines help us navigate massive databases of information, or the entire web. Recommendation algorithms map our preferences against others, suggesting new or forgotten bits of culture for us to encounter. Algorithms manage our interactions on social networking sites, highlighting the news of one friend while excluding another's. Algorithms designed to calculate what is "hot" or "trending" or "most discussed" skim the cream from the seemingly boundless chatter that's on offer. Together, these algorithms not only help us find information, they provide a means to know what there is to know and how to know it, to participate in social and political discourse, and to familiarize ourselves with the publics in which we participate. They are now a key logic governing the flows of information on which we depend. Gillespie, T. The Relevance of Algorithms, In: Gillespie, T, Boczkowski, P & Foot, K. (eds.) Media Technologies: Essays on Communication, Materiality and Society, Cambridge 2014. MIT Press: MA. Gillespie, T. The Relevance of Algorithms, In: Gillespie, T, Boczkowski, P & Foot, K. (eds.) Media Technologies: Essays on Communication, Materiality and Society, Cambridge 2014. MIT Press: MA. Artificial intelligence European Union regulation on AI define artificial intelligence as a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments; However, AI could have new risks or negative consequences for individuals or the society, in term of unlawfully use of personal data, with consequences on the manipulation of rights (i.e. algorithmic discrimination). Here you will find the full text of the regulation. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 3 sur 13 :  2. Algorithm, source code, and computer program Computers execute computer programs, and programs execute algorithms. To solve a problem, you need to formulate it correctly, specify the data, the results and the conditions that must be met. Then you need to choose or arrange an algorithm and determine how to execute it and choose a tool to do so. Programming involves creating source code, that is, writing (implementing) the algorithm in the form of a program in the programming language. To make the program understandable to the computer, it must be translated from a high-level language, into the computer's internal language. A machine (resultant) program (code) is then created. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 4 sur 13 :  3. Algorithm and public decision making process: opportunities and limits The use of algorithm in the decision making process can be defined as authomated decision making process. It's a phenomenon that is emerging in both the private and public sector. Automated decision making process is useful for speed reason, for the ability to underline features that couldn't be noticed by the only human intervention; it make possible to predict a phenomenon or new tendency. Neverthless, some risks have been pointed out by scholars, which can be summarized as the "black box" risk. Firstly, the use of algorithms could suggest taking one decision rather than another, without knowing why. This is the risk that are called as black box, that focuses the attention on the lack of transparency. Nowadays, many scholars demand the rights of explainability as a basic condition to accept algorithm in the decision making process, mainly if they're used in the public sector. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 5 sur 13 :  4. Case law in USA: predictive justice In the USA judges could decide the risk of recidivism of offenders with a software based on "Recidivism risk assessments", the documents that typically provide background information on offenders to sentencing courts. These assessments calculate the likelihood of an individual with the offender’s background committing another crime based on an evaluation of actuarial data. In preparation for sentencing, a Wisconsin Department of Corrections officer produced a PSI that included a COMPAS risk assessment. COMPAS assessments estimate the risk of recidivism based on both an interview with the offender and information from the offender’s criminal history. As the methodology behind COMPAS is a trade secret, only the estimates of recidivism risk are reported to the court. In State v. Loomis, the Wisconsin Supreme Court held that a trial court’s use of an algorithmic risk assessment in sentencing did not violate the defendant’s due process rights even though the methodology used to produce the assessment was disclosed neither to the court nor to the defendant. The problem was whether the courts can evaluate “how the risk scores are determined or how the factors are weighed”. You will find the Loomis case here. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 6 sur 13 :  5. Transparency of algorithm. The Poland’s example The problem with algorithm access in Polish public life is perhaps best illustrated by the case of the algorithm and source code of the System of Random Allocation of Cases (SRAC). The SRAC divides cases among judges of common courts and has been criticised for the complexity and a lack of transparency since its introduction in 2017. Random allocation of cases to judges The allocation of cases to individual judges is an essential component of the right to a court which is a guarantee of proper examination of a case, impartiality and equality of parties in court proceedings. It is not only a matter of court administration. The right to a court derives from Article 45 of the Polish Constitution and from a number of international law regulations, in particular Article 6 of the European Convention on Human Rights. Article 45 sec. 1 of the Polish Constitution reads that everyone shall have the right to a fair and public hearing of his case, without undue delay, and indicates the criteria to which the body appointed to hear a case should conform; it should be a competent, impartial and independent court. The Article 6(1) ECHR stipulates that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It is accepted in the ECHR case law what the expression “established by law” reflects the principle of the rule of law. (…) A body which has not been established in accordance with the will of the legislature would necessarily lack the legitimacy required in a democratic society to hear the cases of individuals. The phrase “established by law” concerns not only the legal basis for the very existence of the court, but also the composition of the court in each case. “Established by law” also signifies the legal basis for the court composition. Decision of ECHR of 17.11.2009 , 39279/05, Iwańczuk v. Poland ; Decision of ECHR of 25.102011, 54809/07, Richert v. Poland. Decision of the ECHR of 4.03.2003, 63486/00, Posokhov v. Rosja, § 37 – za M.A. Nowicki, Wokół Konwencji Europejskiej. Komentarz do Europejskiej Konwencji Praw Człowieka, LEX 2017, komentarz do art. 6 Konwencji Decision of the ECHR of 28.11. 2002, 58442/00, Lavents przeciwko Łotwie, Buscarini v. San Marino (dec.) - 31657/96, Decision 4.5.2000. The Polish Constitution also guarantees the right to a competent court which in some jurisdictions is known as the right to a statutory judge (natural judge). This right means the independence and impartiality of the judge within the framework of the so-called administrative independence, for the realisation of which the issue of the allocation of cases and detailed plans for the allocation of activities are precisely important. In other words, a natural judge is a judge provided for by statute. Polish constitution provides the basis for the designation of cases and judges to preside over cases. T. Ereciński, J. Gudowski, J. Iwulski, Prawo o ustroju sądów powszechnych. Ustawa o Krajowej Radzie Sądownictwa, Komentarz, red. J. Gudowski, Warszawa 2009, p. 160. A. Łazarska, Niezawisłość sędziowska i jej gwarancje w procesie cywilnym, Warszawa 2018, p. 198 and next. A. Łazarska, Rzetelny proces cywilny, Warszawa 2012, p. 181. Artymiak Grażyna in: Hofmański Piotr (red.), Kwiatkowski Zbigniew (red.), System Prawa Karnego Procesowego. Tom V. Sądy i inne organy postępowania karnego, p. 199 Random allocation of cases before 2017 Beforehand, in criminal cases, the division of cases was regulated by Article 351 of the Code of Criminal Procedure, which provided that the judge or judges appointed to hear the case were to be appointed in order of the receipt of the case and the list of judges of the court or division. There were no similar regulations in civil cases. In fact, it was the president of the court or the chairman of the department who, as part of the organisation of the court's work, had to decide who was to hear a case. The lack of clear allocation plans created the possibility of violation of the right to a fair trial. The practice of arbitrary and discretionary allocation of cases, not only did not foster but reduced confidence in the courts. This situation, as well as the obligation to adapt the Polish justice system to European regulations, has led to the creation of the system of random allocation of cases in the Law on the system of common courts in 2017. The random case allocation system is, next to on-line communication and service, electronic proceedings, e-protocol, on-line conferencing and electronic court repertories or portal part of a broader process of digitization of the Polish courts. Cases are assigned to judges and court assessors randomly, within each category of cases, unless the case is subject to assignment to a judge on duty. The allocation of cases within each category shall be equal, unless it has been reduced due to their function, participation in the allocation of cases of another category or for other reasons provided by law. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 7 sur 13 :  The decision that cases are assigned by an IT tool was made by virtue of amendments to the regulations of the operation of common courts. Detailed rules for the operation of the SRAC are now provided for in the regulation of the Minister of Justice of June 18, 2019 - regulations of the operation of common courts. In § 2 point 16 the SRAC is defined as an ICT system for the random allocation of cases and tasks of the court, operating on the basis of a random number generator. The aim of the SRAC is to secure impartiality as a fundamental condition for justice in the courts. For the first time in Poland, both the random allocation of cases to judges and the principle of equal burdening of judges with cases in court were recognized as systemic principles. As to how the system functions, it can be stated the SRAC is a web application accessed from computers logged in to internal IT networks in courts. The central computer using a random number generator, after registering cases, allocates them randomly. The allocation of cases in each category depends on three factors: 1) the number of cases that were received by the division or court; 2) the number of judges and the rate of their allocation; 3) the number of days of absence preceding the end of the period. At the very beginning of the system’s operation there was no access to the algorithm or source code of the SRAC. Available was only a description of its functioning that could be found in the explanation of the draft of the regulation of 2017 that previously regulated the SRAC. The government asserted that the system ensures that no case is arbitrarily assigned to any judge. It combines the principle of randomness with the principle of proportional allocation of cases. It ensured, the parameters of the system are configured in such a way that there is no possibility to interfere with the randomisation process, which takes place automatically - without any user involvement. Yet, despite these assurances, there have been claims of a lack of transparency and the faults of the SRAC. The Supreme Audit Office negatively assessed the failure to achieve the assumed key goals of the SRAC project and the failure to launch functionalities ensuring, among others: full transparency of the sampling process and accountability of operations performed in the system. These functionalities are necessary to protect the SRAC against intentional actions and user errors that may limit the randomness and evenness of the allocation of cases.” Algorithm as public information Initially, the shortcomings of the SRAC were considered mainly from the point of view of access to court. Later, the case was examined from the point of view of the constitutional right of access to public information. The My State Foundation, an NGO who monitors the activities of public entities and other entities receiving public funds, asked the Minister of Justice for disclosure of the algorithm and the source code of the SRAC under the public information procedure. The minister refused to reveal requested information stating that the source code of the SLPS and its algorithm constitute only technical data of a computer programme and therefore do not have the character of public information. He pointed to the well-established case-law of the Supreme Administrative Court, according to which “the source code constitutes only a tool used in computer programmes, without containing any communication about public matters”. The problem had to be finally resolved by the court. In the ruling of 2019 the Supreme Administrative Court decided that the algorithm of the SRAC constitutes public information. As a result, the Ministers made public the SRAC algorithm. Yet, disclosure of the SRAC algorithm did not resolve the problem of the transparency of the system – on the contrary - it opened the discussion if we really learned how the SRAC operates. The available document is not understandable for non-experts and the experts say that it is impossible to confirm both the correctness of individual draws and the consistency of the SRAC data in the long run. We learned nothing about the sources of randomness, the logging of events, or the reliability of the logs. We also do not have any possibility to verify the correctness of the implementation to do so you need to have access to the source code. In the second verdict ,the Supreme Administrative Court decided that also the source code of the SRAC is public information because it informs about the way the courts operate, the cases are accepted, and matters are resolved. However the Ministry refused to release the source code information on the grounds that the code is approximately 2 million lines long, which would take approximately 100,000 pages to print out, that contains passwords and logins, and that the heightened level of terrorist threat justifies the refusal to release the requested information. The basic problem with access to the SRAC algorithm and source code was to qualify this information as public information. Article 61 of the Polish Constitution states that: “A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.” Due to the fact that the Constitution delegates to the parliament to regulate the procedure for accessing the information indicated in the constitution, details of access to this information is specified in the Act on Access to Public Information of 2001 (AAPI). The legislator decided to create a definition of public information in Article 1 of the APPI which reads that “all information on public matters constitutes public information”. This general notion of public information is elaborated in Article 6 of the APPI which provides a non-exhausted list what is public information. There is a difficulty with a term “public matter.” In the explanation of the draft of the APPI “public matter” was explained as “any activity of public authority in the scope of tasks assigned to the state, concerning or serving the public or aimed at disposing of public property. The designate here is therefore the public-law nature of the activity of a given entity.” In the legal literature and jurisprudence, the concept of public information and public matters is understood broadly. Not all information that is in the possession of public administration is accessible. The law does not allow to treat as public data the information contained in a document that was not produced by the authority and does not definitively state the essential elements of a public matter. As the courts explain: Despite the broad scope of the concept of public information, such character cannot be attributed to every piece of information https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 8 sur 13 :  held by public authorities or other entities performing public tasks or managing public property. This is because not all actions of the entities listed in Article 61(1) of the Constitution of the Republic of Poland will be related to the creation of public information. For this reason, technical information is not available. This concept was created by the courts. In this regard, it has been pointed out that a functional view of the requested information can be helpful to distinguish it. Before SRAC case, there were only a few cases related to the source code of the program and the courts were reluctant to grant it a value of public information. For example, a computer program does not constitute public information, but is a tool for creating such information. Similarly, the source code of a computer application, which is the technical element of processing the underlying data underlying data, constitutes a tool used in computer programs computer programs, and thus does not contain any communication about public affairs. Also, the instruction on the use and functionality of an IT program contains information of a purely technical nature and thus does not have the value of public information. Reasoning of the courts in the SRAC cases The regional administrative court (first instance) stated that information on the manner in which cases are assigned to judges does not constitute information either on the mode of operation of public authorities or on the status of cases received, the order in which they are handled or resolved. Found that the algorithm and source code constitute technical information. It inclined to the position of the public authority that “the algorithm is a set of technical information that is used by programmers. This information is expressed in the so-called natural language, in programming languages, in the form of a graphical diagram or a sequence of symbols. This type of data does not meet the same criterion of information on public matters and the APPI does not apply to it. The algorithm, similarly, used for the random allocation of cases to judges, is a component of the tool with the use of which information of a public nature may only be generated, i.e. information on what composition has been assigned to resolve a particular case”. The Supreme Administrative Court (final court) expressed a different position. Firstly, it refuted the lower court's assertion the the SRAC is a supportive program. the court referred to the functional definition of technical information. The designation of the composition of the common courts in practice is not carried out by the action of a person (the chairman of the department), assisted only by the SLPS system. On the contrary, the designation of the court's composition is carried out by the said computer program. The disclosure of the source code is not merely a means of creating public oversight over the correctness of the tools used by the administration. The court of first instance did not take into account the real role of the system for assigning cases to judges in the practice of the operation of the ordinary judiciary. Access to the source code of this program is justified not only by concern for the technical correctness of its operation, but by social control over the compliance of the assignment of court formations with the law. To sum up, the manner of determining the composition of the court by the computer program - the Random Case Assignment System leads to the conclusion that this program is not only “related” to the functioning of the courts, but in practice replaces the activity of a clerk or judge, which is a public matter (the determination of the composition of the court). Since this is the case, the consideration of the transparency of social life and the proper functioning of the courts supports the conclusion that the source code of the SLPS constitutes public information within the meaning of Article 1(1) of the APPI. Secondly, it seems that the Supreme Administrative Court has demonstrated an understanding of how computer systems work and the difference between algorithm and source code. The court stated that access only to the algorithm, and not to the source code of the SRAC, is not equivalent to achieving the purpose of the law in the form of ensuring public control over the exercise of public authority. Providing the citizen with the algorithm of the SLPS program will not lead to verification of possible loopholes in this application, allowing its abuse, for example, by unauthorized exclusion of certain judges from participation in the lottery. It seems that it cannot be determined in advance that the algorithm of programs used by public administration is a technical information, nor can it be stated that it will always be a public matter. The Supreme Administrative Court was right when stated that “the boundary of this type of assessment is very fluid. Seemingly a technical information may be used to achieve the goals provided for in the APPI. Assessment in this respect, due to the undefined nature of whether we are dealing with information from the technical sphere, or information that already meets the features of public information, may therefore cause considerable difficulties. Therefore, it is extremely important to analyze the submitted request for disclosure of data, that may appear to be of a technical nature, considering the specific circumstances of the case”. Judgment of the Voivodeship Administrative Court in Warsaw of 5 May 2018, II SAB / Wa 61/18. III OSK 836/21. Judgment of the Supreme Administrative Courts of 10 January 2014, I OSK 2254/13. Judgment of the Supreme Administrative Court of 2 August 2024, III OSK 2967/23. I. Kamińska, M. Rozbicka-Ostrowska [w:] I. Kamińska, M. Rozbicka-Ostrowska, Ustawa o dostępie do informacji publicznej. Komentarz, wyd. III, Warszawa 2016, art. 1, p. 217. Judgment of the Supreme Administrative Court of 12 September 2013, I OSK 719/13. Judgment of the Supreme Administrative Court of 27 February, 2014, I OSK 2014/13, and Judgment of the VAC in Krakow of 26 November 26, 2012, II SAB/Kr. Judgment of the Supreme Administrative Court of 10 June 2014, I OSK 7/14. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 9 sur 13 :  K. Tracka, Prawo do informacji w polskim prawie konstytucyjnym, Warszawa 2009, s. 138, judgment of the Supreme Administrative Court of 25 March 2003, II SA 4059/02. Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78 pos. 483 with further amendments). Article 61 section 1 of the Polish Constitution. Act of 6 September 2001 on access to public information (Journal of Laws of 2020, item 2176, as amended), hereinafter referred to as the APPI. Judgment of 27 February 2014, I OSK 2014/13. Judgment of 19 April III OSK 836/21, all verdicts of administrative courts are available in the Central Base of the Verdicts of Administrative Courts at: https://orzeczenia.nsa.gov.pl. T. Zieliński, Poznaliśmy algorytm losowania SLPS czyli… co dokładnie? https://informatykzakladowy.pl/poznalismy-algorytm-losowania-slps- czyli-co-dokladnie/ (accessed 15.05.2022). When the Foundation started a battle with the Ministry it asked about the algorithm and the source code of the SRAC. The ministry did not disclose this information, calling it “technical”, and the Voivodeship Administrative Court sustained his opinion position. The Foundation appealed against the verdict, but only in the part concerning the disclosure of the algorithm. Judgment of 26 May 2022 February III OSK 1189/21. The document can be found here: https://www.gov.pl/web/sprawiedliwosc/algorytm (accessed 15.05.2022). See the website of the Ministry of Justice: https://www.gov.pl/web/sprawiedliwosc/system-losowego-przydzialu-spraw-wyeliminowal-patologie- w-sadownictwie (accessed on 10.10.2024). Information about the control results. Implementation of IT projects aimed at improving the administration of justice, p. 8. The report can be found here: https://www.nik.gov.pl/kontrole/P/19/038/ (accessed 15.05.2022). P. Rygiel, Losowy przydział spraw cywilnych w sądzie drugiej instancji, „Przegląd sądowy” 2019, No. 2, p. 41. More on this topic: P. Czarnecki, Kontrowersje wokół wyznaczania sędziów w sprawach karnych na tle zasady uczciwego procesu, „Czasopismo prawa karnego i nauk penalnych” 2007, No. 1. P. Rygiel, Losowy przydział spraw cywilnych w sądzie drugiej instancji, „Przegląd sądowy” 2019, No. 2, p. 39. A. Łazarska, Rzetelny proces cywilny, Warszawa 2012, p. 239. In this respect, it is particularly important to point out to the recommendation No. R (94) 12 of the Committee of Ministers to Member States on the independence, efficiency and role of judges; Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, Official Journal L 174, 27/06/2001 P. 0025 – 0031 2001/470/EC; Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency, and responsibilities (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies) According to point 24 of the recommendation “The allocation of cases within a court should follow objective pre-established criteria to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case, or anyone otherwise interested in the outcome of the case.” The Act of 12 July 2017 on amending the Act - Law on the system of common courts and some other acts Journal of Laws of 2019 item 2046. M. Pytlewska, System Losowego Przydziału Spraw jako gwarancja bezstronnego prawa do sądu w kontekście zaleceń Unii Europejskiej, „Prawo w działaniu. Sprawy cywilne” 2019, no. 40, p. 266. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 10 sur 13 :  A. Łazarska, Losowanie spraw i zasady wyłaniania składów wieloosobowych, LEX/el. 2019. https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 11 sur 13 :  6. Transparency of algorithm. The Italy’s example The case concerns the relationship between the right to confidentiality granted to the producer of computer programs as the creator of the software and the right of access to data by private individuals. The dispute under consideration arose between: - the Ministry of Education, University and Research (MIUR); - the group of participants of the “National Course-Competition aimed at recruiting school principals; - the Cineca - Interuniversity Consortium (author of the software). The matter: The participants failed the written test and felt that this was due to a specific feature of the software used to manage the test, which was assessed to be different from the indications provided by the Ministry through a tutorial published on the administration's website. The participants asked access to the public document (to the entire source code of the software used for the selection). The Ministry did not allow the access requested by the applicants, and therefore the candidates appealed to the TAR (Tribunale Ammistrativo Regionale) of Rome, requesting that their right to access and view the source code be ascertained. The TAR upheld the appeal filed by the candidates, also ruling that Cineca - the author of the software - was not technically qualifiable as a “counterinterested” party in the process under the regulations in force. This ruling was appealed by the Ministry to the Council of State. The ruling of the Council of State First, the Council of State clarified the concept of a counterinterested party in the administrative process. The Council clarified that before establishing the merits of the case on whether or not the algorithm qualifies as an “administrative document susceptible to access” or on whether the needs of administrative transparency prevail over the rights of the producer: “there emerges the need to qualify the creator of an algorithm subject to an access request as a party with a counterinterest in the exhibition, since he may, in the event of exhibition, see his right to keep secret the technical rule in which his creation is substantiated compromised. The software producer “Cineca” may have been harmed in its industrial property rights (under the Industrial Property Code - CPI) and intellectual property rights (L. No. 633/1941) in the event of access to the data, and suffer an impairment of the right to confidentiality on the secret products resulting from its creative activity. On the basis of the aforementioned considerations, the Council of State in the Judgment No. 30/2020, ordered the annulment of the judgment appealed by MIUR, by which the appeal of the contestants had been upheld and the status of Cineca as a counterinterested party had not been recognized, and ruled that the case be remitted to the TAR so that the trial could be held, from the first level of proceedings, with Cineca present. The ruling of the TAR in Lazio The TAR had to find a fair balance between the right to data access and the protection of confidentiality in order to avoid that the producers of computer programs suffer violations of their rights. The Judges, in judgment No. 7370/2020, ordered access to the source code records as requested by the plaintiffs. The source code was considered by the Judges as an administrative document as governed by Law No. 241 of 1990: Art. 22 L. 241/90: “any graphic, photocinematographic, electromagnetic or any other kind of representation of the content of acts, even internal or not related to a specific procedure, held by a public administration and concerning activities of public interest is considered an administrative document.” The Judges, in motivating the decision, affirmed that the participants in the test had: “a direct, concrete and current interest in accessing the software algorithm with which the selective test they failed was administered, given the role played by the computer program in the context of an activity of undoubted public relevance, such as that referable to a public competition.” Addressing the issue of the right balance between the intellectual property rights of the software producer and the need for administrative transparency, the Tar affirmed that the principle of transparency of administrative action cannot be overlooked, holding that the use of computer tools for the performance of public selective procedures serves the principles of good performance and efficiency of the PA. The court allowed access to the entire source code of the software used for the selection, as only it allows to know the actual functioning of the computer system used. In fact, the source code is the text with several lines of program code, written in a programming language, which makes it possible for humans to understand what the mechanisms of execution of the program are, its structure, and mode of operation. http://www.interlex.it/testi/l41_633.htm https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 12 sur 13 :  https://portali.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza? nodeRef=&schema=cds&nrg=201904299&nomeFile=202000002_11.html&subDir=Provvedimenti https://portali.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza? nodeRef=&schema=tar_rm&nrg=201903404&nomeFile=202007370_01.html&subDir=Provvedimenti https://elearning.unito.it/scuolacle/mod/book/tool/print/index.php?id=219087 08/01/25 10 43 AM Page 13 sur 13 :