Open government legislation is increasingly obliging governments to make administrative decisions in single cases public to everyone. The underlying aim of this public disclosure is to enable citizens to compare their case with other similar cases and to trace patterns of decisionmaking, such that they can check whether the decision-making process has been consistent in their own case. As a result of this public disclosure, governments might be urged to adopt a more comparative style of decision-making, which would require a reconfiguration of existing legal transparency guarantees in administrative decision-making, such as the right to reason-giving. Considering the Netherlands as a frontrunner jurisdiction with regard to public disclosure of administrative decisions, this paper explores to what extent open government legislation requires Dutch governments to proactively disclose their decisions and how existing practices of proactive disclosure relate to these legal obligations. Based on a joint analysis of the applicable open government legislation and disclosure practices of some selected governments, this paper concludes that although public disclosure of single-case decisions has the potential to transform existing decision-making procedures, it is still in its infancy.
Digitalization of government is rapidly transforming administrative decision-making. The prevailing idea is that governments are increasingly taking resort to supportive or even prescriptive modes of automated decision-making [1][2]. The accompanying concern is that the outcomes of administrative decision-making in individual cases are increasingly determined by complex and non-transparent algorithms, which fail to take into account the particular characteristics of the case at stake [3]. However, there is also an opposite perspective to digitalization of government, arguing that digital government could instead strengthen tailormade administrative decision-making, in particular through the use of open government [4]. The fundamental problem, however, is that administrative decisionmaking in single cases is often hidden from the public eye.
The ongoing transformation from ‘old open government’ to 'new open government' [5], constitutes a promising game changer here. Modern open government legislation increasingly requires governments to disclose enormous amounts of government proactively in a machine-readable format. In several jurisdictions, this obligation even extends to administrative decisions in single cases, which used to be communicated only to the persons directly involved. This specific form of ‘open book government’ could result in a transformation of existing transparency guarantees in administrative decision-making processes, as it will allow citizens to have access to other cases than their own [6]. Eventually, this transformation could encourage or even urge public authorities to adopt a more comparative style of reason-giving in administrative decision-making.
Although public disclosure of administrative decisions has the potential to strengthen transparency guarantees in administrative decision-making, a first and necessary precondition is that administrative decisions are made public. This paper therefore explores how open government legislation currently steers administrative practices of public disclosure of single-case decisions. In particular, it answers this question by considering the applicable legislation and administrative practices within the Netherlands, which can be considered a frontrunner jurisdiction with regard to the legal regime applicable to public disclosure of administrative decisions.
In general, an administrative decision can be understood as administrative action addressed to one or more individualized public or private persons which is adopted unilaterally by a public authority to determine one or more concrete cases with legally binding effect [7]. Examples of administrative decisions include licensing, subsidizing and sanctioning decisions. Both the unilateral character and the legally binding effect of administrative decisions distinguish this type of administrative action from other types of individualized administrative action [8], such as information provision or contracting. Both characteristics imply that an administrative decision, sometime also referred to as a singlecase decision, is rooted in a legal framework, which legitimizes this impactful form of administrative action.
An administrative decision is the final product of a decision-making process. However, more than once, this decision is not the result of the straightforward application of a general rule to an individual case. Instead, public authorities often exercise some degree of administrative discretion when taking decisions in individual cases. The underlying idea of administrative discretion is that by conferring discretionary powers to administrative authorities, legislation enables public officials to take decisions that are not only compliant with the applicable legislation, but also tailormade for the case at stake [9].
As a necessary counterweight to straightforward decision-making on the basis of predefined (legal) rules, administrative discretion introduces its own challenges, since there is always the inherent risk of discretion turning into arbitrariness [10]. Therefore public officials are legally required to ensure consistency by taking decisions in line with prior decisions, in particular when general rules have not further limited in advance the discretion conferred to these decision-making authorities [11]. However, although the rule of law requires government decisions to be consistent with other decisions, citizens have hardly access to cases other than their own. The reason therefore is that in order to have legal effect, many administrative decisions are communicated only to the persons directly involved.
Access to information about other administrative decisions is therefore an important, even indispensable ingredient for realizing meaningful transparency with regard to administrative decision-making with a discretionary character. Interestingly, recent open government legislation increasingly obliges public bodies to disclose government information proactively as ‘open data’ in a machine-readable format, thereby creating new opportunities for citizens to access and process large amounts of government data [5]. However, administrative decisions as a specific type of open data are still an highly unexplored area, especially in comparison with other official government documents such as legislation or court decisions. The reason therefore is not only that administrative singlecase decisions are more than once hardly publicly available, but also that these decisions, unlike legislation or court decisions, are often ill-structured and lack relevant metadata. What is more, public disclosure of these decisions is more than once considered difficult, as the protection of personal data or other ‘sensitive’ grounds might oppose public disclosure of these documents. At the same time, since administrative decisions often have a similar structure or ‘anatomy’ due to legal requirements imposed on single-case decision-making, this type of government documents might be very well suited for proactive ‘open by design’ practices and for mutual comparison once publicly disclosed.
Current operationalizations of transparency build on the idea of so-called rule-based decision-making, i.e. the idea that the outcome of a decision-making process is the direct result of the straightforward application of a general rule to an individual case. In other words, existing transparency guarantees in the administrative decision-making process are mainly targeted at ensuring ‘rule transparency’. In particular, governments should make sure that the applicable general rule (the ‘law’) has been published and that citizens have access to their own case file.
When governments exercise administrative discretion, these rule-based transparency guarantees prevent citizens from evaluating whether the decision in their case has been consistent with those in other cases. In fact, these rule-based guarantees make it difficult, if not impossible for citizens to compare their case with other relevant cases. Thus, where decision-making itself transforms from rule-based to case-based decision-making, transparency guarantees should also transform from rule-based to case-based. Such ‘casebased’ of ‘case-inclusive’ transparency amounts to recognizing the supra-individual effect of administrative decisions as they will not only impact the case at stake, but also decisions in future cases (see Figure 1).
Acknowledging the supra-individual effect of administrative decisions implies the recognition that an administrative decision is not only the output of a decision-making process, but also the input thereof in future decision-making procedures. Once an administrative decision is considered as input rather than output of a decision-making process, the impact thereof on other transparency guarantees in decision-making process deserves further attention. In that regard, building on e-government literature [12][13][14], the tri-partition of data transparency, process transparency and reasoned transparency provides a useful analytical framework. First, data transparency refers to the inputs and output of the decision-making process (what?). Once administrative decisions are disclosed publicly, they will not only act as output data, but also, together with other sources such as the applicable law and the case file at stake, as input data for future decisionmaking. Next, process transparency refers to transparency on the process of decisionmaking, hence to the transformation of input into output (how?). Once citizens substantiate their own case by referring to other decisions that have been publicly disclosed, this might urge public officials to consider other documents in the decision-making process as well (e.g. applications or advisory opinions in other case files). Finally, reasoned transparency relates to the reasons underlying a certain decision (why?). Once the outcome of the decision-making process is determined not only by the applicable rule, but also by the comparison with other cases, public officials should possibly need to refer to those other cases in their final decision as well, which would amount to a more comparative style of reason-giving. Public disclosure of administrative decisions can therefore be considered a first necessary step to further shape ‘case-inclusive transparency’ in the context of administrative decision-making.
Legislation is often referred to as the most important determinant for disclosure practices of governments [15]. Thus, we aim to confront legal obligations on public disclosure of administrative decisions with actual practices thereof in public administration. Since proactive disclosure of administrative decisions is still in its infancy, we focus on the jurisdiction of the Netherlands. This jurisdiction can be considered a 'frontrunner' with regard to public disclosure of single-case decisions. As of 2022, a new piece of (modern) open government legislation has come into force: the Open Government Act (Wet open overheid). This Dutch piece of legislation contains - inter alia - detailed and far-reaching requirements with regard to public disclosure of single-case decisions, as it requires these decisions to be disclosed proactively for everyone (though with certain exceptions) [16].
We combine a legal analysis of applicable open government legislation in the Netherlands with an exploratory analysis of a selected number of government websites and portals. Since our aim is to confront existing practices of public disclosure of administrative decisions with applicable open government legislation, we select three public authorities that already have some track record in proactive disclosure of administrative decisions. In particular, as enforcement authorities are well-known for including public disclosure of single-case decisions in their policies of ‘naming and shaming’ [17], we select three so-called ‘independent administrative bodies’ (in Dutch: zelfstandige bestuursorganen) with enforcement powers within the Dutch Register of Official Government Organizations: Kansspelautoriteit – Ksa (Dutch Gambling Authority), Autoriteit Consument & Markt – ACM (Dutch Authority for Consumers and Markets) and Autoriteit Financiële Markten – AFM (Dutch Authority for the Financial Markets). In addition to these three authorities, we consider existing disclosure practices on the general open government information portal Platform Open Overheidsinformatie (PLOOI), but only as far as administrative decisions are concerned.
Data from the respective websites of the three enforcement authorities and from the platform PLOOI were collected in January and February 2024 and published together on the platform Woogle (woogle.wooverheid.nl). The analysis of these disclosure practices follows the characteristics identified in the applicable open government legislation.
As of May 2022, the Open Government Act (OGA) has replaced the previous Public Information Act (Wet openbaarheid van bestuur) [18]. One key characteristic of this new piece of legislation is the shift from disclosure of government documents at request of citizens (so-called 'passive disclosure') to disclosure of government documents at the initiative of public authorities themselves (so-called 'proactive disclosure'). According to Chapter 3 (Proactive disclosure) of the Dutch Open Government Act, the administrative authority directly concerned must proactively disclose information contained in documents held by the administrative authority to the general public if this is reasonably possible without disproportionate efforts or costs, except in so far as legitimate exceptions (such as the security of the State or privacy concerns) prevent disclosure or no reasonable interest would be served by disclosure. To further concretize this 'best efforts' obligation, Article 3.3 of the OGA stipulates that unless one or more of the exception grounds apply (such as the security of the State or privacy concerns), the administrative authority must at least disclose seventeen so-called 'information categories'. Proactive disclosure of these information categories should take place at the earliest possible opportunity, and in any event no more than two weeks after recording or receipt of the information. What is more, according to Article 2.4 of the OGA, government information must be disclosed in such a way as to reach the interested party and as many interested members of the public as possible and preferably - in electronic form, in a machine-readable open format, together with the metadata, in accordance with the requirements on the re-use of public sector information (as specified in the EU Open Data Directive (2019/1024)).
One of the information categories mentioned in Article 3.3 of the OGA is the category of administrative decisions, hence single-case decisions with legally binding effect. However, several subcategories of these administrative decisions have been excluded in advance from the obligation on proactive disclosure, such as taxation decisions or social benefit decisions. The underlying reason therefore is mainly that privacy concerns would oppose such practices of proactive disclosure. Instead of disclosing every single-case decision separately in full text, Article 3.3a of the OGA alternatively allows for proactive disclosure in the form of overviews: an administrative authority may disclose information about single-case decisions in an overview which can be consulted electronically by individuals and which should contain a set of specified details at a minimum, such as the (legal) basis for the decision, its legal consequences, the date of the decision and the recipient thereof (where possible). Furthermore, Article 3.3b of the OGA requires that disclosure of these documents (including single-case decisions), either in full text or in overviews, should take place electronically in a generally accessible manner by means of a central digital infrastructure maintained by the Minister of Internal Affairs. Thus, a central 'reading room' is created where citizens can find all government documents of different administrative authorities that have to be disclosed proactively.
Because of the administrative burden this obligation of proactive disclosure of certain types of government documents on a central portal would entail for governments, Article 3.3 of the OGA has not yet entered into force. This means that at the moment, administrative authorities are neither required to disclose single-case decisions proactively nor to use one central platform. Nonetheless, the 'best efforts- obligation of the OGA still encourages them to disclose single-case decisions proactively. However, in doing so, administrative authorities are free in choosing their platform (such as their own governmental website or another governmental database) and the timing (hence without the restriction to two weeks after the decision has been taken).
Apart from this generally applicable open government legislation, certain administrative authorities are subject to specific legislation (instead of the Open Government Act) with regard to public disclosure of their documents in general and of their single-case decisions in particular. The Establishment Act of the Authority for Consumers and Markets (Instellingswet ACM - Iw), for example, requires this authority to publish its administrative sanctions or binding instructions (Article 12u), whereas it is allowed - but not required - to publish other decisions it has taken (Article 12w). A similar distinct publication regime has been laid down in the Financial Supervision Act (Wet op het financieel toezicht – Wft) which applies to the Dutch Authority for Financial Markets. The Dutch Gambling Authority, by contrast, is subject to the disclosure regime of the Open Government Act.
Even though the obligation to disclose single-case decisions does not apply yet to its full effect, at least not under the OGA, several public authorities have established already practices for proactive disclosure of single-case decisions. The main characteristics thereof are summarized in Table 1. First, all three independent administrative bodies (Ksa, ACM and AFM) make use of their own website to disclose administrative decisions. However, it is not always easy to detect administrative decisions on these websites, as their labels vary from ‘sanctioning decisions’ (Ksa), to ‘decisions’ (ACM) or ‘measures’ (AFM). The Ksa, for example, has a separate entry on enforcement decisions, whereas (main elements of) licensing decisions can be found on another part of the website. Within the portal PLOOI (see Figure 2), a distinction is made between document types and information categories. Interestingly, only one type of decisions is recognized as a separate subcategory of so-called ‘document types’: licensing decisions (117 in total). This subcategory contains some administrative decisions of ministerial departments (mainly Economic Affairs – EZK, Infrastructure and Water Management – I&W, and Health, Welfare and Sports – VWS). These decisions are related to some specific topics (e.g. nuclear energy, public transport or specialized medical operations), but reflect by no means a complete set of decisions taken within that department. Finally, there is currently one example of an administrative decision published in the information category of administrative decisions (‘beschikkingen’), which is the subsidy register of the province of Zeeland (ZL).
As far as the legal basis for public disclosure is concerned, the AFM and the ACM are obliged to publish certain (enforcement) decisions under sectoral disclosure legislation. However, the Ksa has developed a similar practice, even though it is not obliged thereto on the basis of the OGA. What is more, all three independent administrative bodies have also published some other types of administrative decisions, such as licensing decisions and sometimes information request decisions (ACM). Licensing decisions are also present on the PLOOI portal: although there is no general obligation to publish these licensing decisions, legislation does also not impede the public disclosure thereof. It is striking, though, that most licensing decisions published on PLOOI have a date preceding the entryinto-force of the OGA in May 2022, which makes the portal currently a bit outdated.
Regarding the type of decisions, the decisions published by the enforcement authorities cover at least sanctioning decisions, such as the imposition of administrative fines, but are not limited thereto. Also other decisions, such as licensing decisions, have been published on their respective websites. Interestingly, these other decisions are often published on other parts of the website of the public authority concerned. What is more, some of these other decisions are only published in overviews containing only the main elements of the decisions instead of its full text (e.g. the licensing register of the KSA en the different licensing registers of the AFM).
When it comes to the form of disclosure, most decisions under review have been published as full text documents. Within PLOOI, the subsidy register of the province of Zeeland, which is included in the ‘information category’ of administrative decisions, is an example of an overview. In addition, the quality of the disclosed decisions is often not in accordance with the established requirements on the re-use of public sector information. Relevant metadata are lacking, whereas the text of the decision itself is not always machinereadable. This seems to hold in particular for older decisions, where pseudonymized pdfversions of the decisions have been made available as a scanned image only (instead of text).
Legislation is often referred to as an important determinant for disclosure practices of governments, as such legislation prescribes which information needs to be made public at least. Our research confirms that different ambitions with regard to proactive disclosure can be distinguished in legislation. Whereas the OGA does still not require public disclosure of administrative decisions, sectoral disclosure legislation puts stricter requirements on specific public authorities. In addition, even though single-case decisions are recognized as an important category of government documents that - as a main rule - need to be disclosed proactively, many exceptions apply, mainly because of privacy concerns. Nonetheless, several governments seem to consider open government legislation as an excellent opportunity to do more than what they are actually obliged to do [19].
In comparison with (published) case-law, administrative single-case decisions form a much larger and more diverse set of data. The challenges for comparing these decisions are also higher. More notably, similarity between judgments can be assessed with both citationbased and content-based approaches: a judgment can be in line with another judgment because it refers to that other judgment or because it uses similar wordings [20]. The former citation-based approach is unavailable, however, for single-case decisions that have not been made public. As a result, it is only possible to assess similarity between decisions on the basis of their relative substance. What is more, the quality of government documents in general as open data seems to be underdeveloped [21]. Thus, the challenge is not only to further engage in practices of proactive disclosure, but also to do so in a way that allows for re-use of these documents. This means not only investing in 'open by design' approaches that automatically pseudonymize information in single-case decisions that cannot be made public to everyone, but also providing these decisions with proper metadata that allow for categorization and comparison.
While literature in public administration has emphasized the notion of ‘voice’ next to ‘vision’ in open government [22], voice is mainly considered as giving citizens the opportunity to democratic participation in general rulemaking and accountability processes. Disclosure of single-case decisions can, however, not only strengthen this so-called collective voice, but also the individual voice. In particular, public disclosure of single-case decisions can strengthen the informational position of individual citizens vis-à-vis governments in administrative decision-making procedures in single cases. To assess this impact of public disclosure of single-case decisions on future decision-making procedures (and thus on the voice of individual citizens), it is necessary to further explore how such disclosure will impact the interpretation of existing legal transparency guarantees, such as the right of access to one's own case file and the duty to give reasons. If single-case decisions have indeed supra-individual effect, public officials could be forced to adopt a more comparative approach in future single-case decision-making procedures.
Open government legislation is gradually pushing towards more proactive disclosure of government documents. This push is not restricted to documents with a general nature, but also covers documents targeted at individual cases, so-called administrative decisions. Once citizens have access to the outcomes in cases similar to their own case, this might transform existing transparency guarantees in administrative decision-making, such as the right to reason-giving.
This exploratory case-study of a frontrunner jurisdiction shows that even where open government legislation is not obliging public authorities to disclose administrative decisions proactively, different public authorities are already acting in the spirit of the law by disclosing this type of government documents proactively. However, in the absence of detailed legislation, disclosure practices remain fragmented. Importantly, apart from the disadvantage that a central ‘reading room’ is lacking, even on the government websites of administrative bodies themselves, public disclosure of certain administrative decisions does not tell citizens which administrative decisions have not been disclosed. This lack of completeness can seriously impart the potential of public disclosure of administrative decisions to transform transparency guarantees in administrative decision-making.
This publication is part of the project ‘Administrative Decision-Making in Times of Open
Government: From Rule to Case Transparancy (with project number VI.Vidi.221R.026) of
the Vidi Talent research programme which is (partly) financed by the Dutch Research
Council (NWO) and of the ICON project ‘Case-Inclusive Transparency for a Digital and Open
Government’ (CITaDOG) of the Digital Sciences for Society program of Tilburg University.
The author wishes to thank Ramon Duursma BSc (University of Amsterdam) for collecting
several datasets of administrative decisions on the Woogle portal.
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