More than three years after the implementation of the Random Case Allocation System (SLPS) and almost four years after the first attempts to gain access to the algorithm used in this system, the Supreme Administrative Court (NSA) issued judgment, in which it stated that the algorithm used in SLPS could be perceived as public information. Although the ruling contains important observations on the legal categorization of information produced using new technologies, it leaves some uncertainties regarding the limits of the right of access to public information in the context of the use of new technologies in the public sector.
dr Joanna Mazur, DELab analyst
The NSA judgment ends the proceedings initiated in 2017, when SLPS was still in the testing phase, and changes the judgment issued by the Provincial Administrative Court in Warsaw in 2018, in which the Provincial Administrative Court refused to recognize the algorithm used in SLPS as public information. Since autumn 2017, concerns related to the implementation of SLPS have turned into serious allegations, supported by, among others, devastating criticism of the implementation of the system in report Supreme Audit Office, stating that:
The above-described deficiencies in the achievement of the products and the incomplete launch of all functionalities of the SLPS system made it impossible, until the completion of the audit, to achieve the project’s objective, which was to build an IT system ensuring random and even allocation of cases to judges, judicial assessors and referendaries. (p. 48)
In addition to allegations of the system's inefficiency, its technical shortcomings or doubts about the procedural aspects of the system's operation, a deeper question can be asked: about the democratic legitimacy of the automated decision-making system implemented in the judiciary, which is not subject to any democratic control. Neither citizens, nor judges, nor members of parliament have access to the algorithm used in SLPS. At the same time, it is the algorithm that shapes in practice the way in which cases are assigned to judges.
It is this problem – overlooked by the WSA – that seems to be the basis of the thesis presented by the NSA, which notes that “While the regulation specifies the principles that the System should follow, what elements and criteria it should take into account, it does not explain how the SLPS web application actually works”. The lack of access to the algorithm makes it impossible to verify whether the assumptions presented by the Ministry of Justice are reflected in reality. Regardless of the form in which the algorithm is written, it contains important information on the functioning of the judiciary:
The way SLPS works, as provided for in its algorithm (a set of individual commands that this System executes), is information about a sequence of actions leading to the appointment of a specific judge to handle the case. The fact that this sequence of actions is performed by a computer program and is therefore of a technical nature cannot deprive this information (on the method of appointing a judge) of the nature of public information.
This way of perceiving the algorithm, access to which was requested, is based on a perspective called technological neutrality. The NSA took a position emphasizing the need to assess each time the nature of the requested information as public information, regardless of the format or manner in which it is expressed. At the same time, the judgment emphasizes that the NSA's statements refer only to the subject of the complaint: the NSA does not determine whether it is possible to make the algorithm available or how it could be made available. It also does not refer to whether the SLPS source code constitutes public information, emphasizing that this was not an element of the case at hand. Although the NSA judgment is an important voice regarding the need to perceive technologies used in the public sector from the perspective of the function they perform or what type of information they carry, it certainly does not close the topic of the possibility of gaining access to digital information as public information in the Polish legal system.
This note was created as part of a project by the author, Joanna Mazur, Preludium grant from the National Science Centre – “Automated decision-making and the prohibition of discrimination in European law”, project number: 2018/29/N/HS5/00105.
