Ale Petric, L'L'B,

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Case Study Request for Reuse of Judicial
Information

• Ale Petric, L.L.B,
• Office of the Information Commissioner

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• The Case Decision of the Commissioner on reuse
  of PSI, August 2006
• The Applicant an Internet CompanyA well-known
  Slovenian Internet company, dealing with
  electronic registers data and Internet search
  engines. (the Slovene Google).
• The Request two-fold
• the entire database of the Central Slovene Court
  Register_.
• 16 individual databases Records of court cases
  for all Slovene courts (Court Administrative
  Ledgers).
• The company was only interested in Records of
  commercial relevance,
• (no request for Records of pending criminal
  cases).
• The Body liable Supreme Court of the Republic
  of Slovenia
• The central IT managing body of the court
  register database.

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• Types of Court records requested (some of the
  total of sixteen)
• Records of civil and commercial litigation cases,
  
• Records of civil and commercial execution cases
• Records of collective and individual labour
  disputes
• Records of civil and commercial payment order
  cases,
• Records of administrative cases,

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• Commercial or non-commercial reuse.
• The Company stated it wants to reuse the
  information for commercial purposes.
• The Directive leaves this to member states.
• With regard to payment, Slovenia adopted the
  selective approach The Public body chooses.
• According to the Slovene Act the Public body has
  discretion in cases of commercial use to
  decide whether to charge for information or not.

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• The companys intentions
• The Internet company stated in wishes to obtain
  the databases (the Court register the 16
  Records) for integration into one of its business
  products
• Commercial credit-rating register of all Slovene
  business entities.

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• From a business standpoint such a request makes
  perfect sense. The company had two goals
• To obtain an accurate and reliable register (de
  facto standard)
• To obtain a large amount of commercial litigation
  data relevant for credit-rating assessment.
• The data on a specific corporate subject is
  relevant for its credit-rating (disputed assets
  and liabilities)
• The innovation they were aiming at aggregation

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• Time-line of the case
• The Supreme Court (as the I. level body) rejected
  the request.
• The Internet company appealed this decision to
  the Office of Information Commissioner
• (which is the nationwide appellate body for
  cases of PSI reuse)

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• The Commissioner's decision
• In short the Commissioner in its decision ruled
  in two ways
• Reuse of the Central Court Register database
• request granted.
• Reuse of the sixteen different Records of Court
  cases (Administrative ledgers)
• request refused.

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• I. PARTRECORDS OF COURT CASES (reuse refused)
• The reason for refusalthe information
  constitutes a business secret
• An important part of the information contained in
  the Records of court cases can represent the
  implicated companys business secret

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• Why ?
• Business secret Slovene Companies Acts
  definition _Business secret are all data the
  obtaining of which by a third person, would (or
  could) evidently cause harm to the company, the
  proprietor of these data.
• Slovene legislation requires a harm test
• the threat of harm must be stated, substantiated
  and explained (in detail not in abstract).
• information known only to a limited number of
  individuals
• In short proof that harm could occur.

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• The Commissioner weighed whether or not this
  harm could occur
• Prerequisite types of dataRecords of Court
  cases contain numerous information on both
  litigating partiesnames of judges, types of
  disputes, applicable law, payment of court fees,
  procedural acts (appeals, main hearings,
  decisions).
• The Crucial Information
• the fact of the existence of each legal dispute
  itself
• the information on amount in dispute (money at
  stake).

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• Information Commissioner argued
• Companys reputation and positionBoth these
  facts are important for an entitys reputation
  ---gt therefore for its market position.
• Partiality of informationAny information
  gathered in such way would unavoidably be only
  partial. (a multitude of possible situations)

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• The Distortion of picture of assets and
  liabilities
• The total aggregated picture -gt only in a
  companys legal department),
• Reasons for distortion
• Dispute outcome predictionimpossible to predict
  the outcome of every litigation. It could either
  end in favour of the plaintiff, the defendant, a
  court settlement could be achieved, the action
  could be withdrawn, the claim could be
  acknowledged, etc.
• Dispute Evaluation impossible for third parties
  to evaluate (fundamental) the grounds or the
  justification for the amount claimed

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• Aggravation of distortion
• Cases of exporting companies.all litigation
  information at foreign courts would be excluded
  from such Credit-rating register.
• (Slovenia as an export oriented economy, high
  percentage of its GDP is achieved through
  exports).
• The fact of the litigations existence
  itselfThe fact itself could already prove to be
  damaging if the business community learned of
  particularities on individual litigations.
• litigations are a fact of life,
• a textbook example of bad publicity (any number
  of interpretations)
• bad publicity does not equal good publicity
  (business)

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• Decision on the I. part
• Our assertion negative effects on the company's
  reputation
• Consequence change in reputation would also
  affect the companys market position
• Conclusion the threat of harm does exist gt the
  data are a business secret gt a FOIA exception is
  given
• Decision Refusal of request

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• II. PARTCOURT REGISTER (reuse granted)
• The Information Commissioner only had to weigh
  the parties contradicting arguments.
• The Companys argumentCourt register already is
  public.
• Its a public book of records.
• Its accessible to everyone at Slovene Circuit
  courts
• and as of late in a limited form also on the
  Internet.

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• The Supreme courts argumentIt warned of a
  specific provision of the Court Register
  Act.Prohibition of certain searches in the
  Court register(Prohibition to search by owner
  name)
• The court register also contains data on
• names of company shareholders (owners),
• names of members of management boards,
• names of members of supervisory boards of
  companies.
• In Slovenia, search by these names is prohibited

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• Ratio legis or the reason for this prohibition
• To prevent disclosure of wealth and status
  information. (such as how many companies a
  certain person owns, or sits on boards of).
• Exceptions to this ruleThis search is allowed,
  but only for specific purposes
• i.e. requests by government bodies (for instance
  for purposes of investigations and persecutions)
• by creditors which can attest to their executive
  title (execution claims).
• Problem This information can be obtained. (if
  you have the database)But youre not allowed to
  obtain it or use it in any way.

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• The Supreme Court arguments conclusion
  granting would be a breach of the statutory
  provisionIt arguedrelinquishing of the
  database to a private company would mean that
  this company could execute the forbidden searches.

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• Decision on the II. part. Disregard the
  argument. The EU directive on reuse provides
  instruments to prevent such violations The
  option to conclude a contract between the
  parties (body liable and the applicant).
  Conclusion of such contract could address these
  issues.
• Additionally
• Reuse contracts are by their nature long-term
  (updating).
• The body does control the applicants use of the
  register.
• It can demand compliance with the provisions
  (non-search).
• It can enforce this demand (contact termination).
• Last Commissioner couldnt overlook the fact the
  Court Register Act itself requires publicity. The
  provision on public access.
• Decision granting of the request

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• Later developments (Wrap-up)The Slovene FOIA
  envisages a three stage legal process.
• 1. stage (I. level body Supreme court).
• 2. stage (appellate body The Commissioner).
  as explained request partly refused, partly
  granted
• 3. stage (Administrative dispute before the
  Administrative court)Both parties used their
  right to legal remedy
• the Supreme Court attacked the decision in part
  which grants the reuse of the court register
• the Internet company attacked the decision in
  part which refuses reuse of court case records

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• Questions?
• Contact info
• Ale Petric, L.L.B.Office of the Information
  Commissioner Republic of SloveniaVonjakova 1,
  1000 Ljubljana Tel [phone] / Fax 00
  386 1 230 9732 www.ic-rs.si
• ales.petric(at)ip-rs.si