INTRODUCTION
India’s digital market has witnessed an exponential growth in the recent past. There has been a major increase in the use of the Internet with the penetration of digitalisation in the rural areas. The forthcoming digital transformation in India is expected to create tremendous economic value for India and align with India’s goal of having a five trillion-dollar economy by 2025.
The need for data for better governance was felt way back in 2005 with the Right to Information Act, 2005, and to boost the concept of transparency and accountability, National Data Sharing and Accessibility Policy was implemented in 2012.
In any organisation, data acts as a fundamental building block. An opportunity to provide better governance, service delivery and innovation in sectors critical for new-age technology transformation, such as artificial intelligence. Taking it into consideration, the Draft Data Accessibility and Use Policy, 2022 (the Policy) was introduced for public opinions and suggestions.
DATA AS DEFINED UNDER THE POLICY
‘Data’ within the policy means representing information, numerical compilations, observation, and documents. Facts, maps, images, charts, tables and figure concepts in digital and analogue form shall be collected and archived by the Government, directly or through authorised agencies by various Departments.
Herein, the data has been classified into ‘shareable or non-shareable data’. As per the Policy, ‘shareable data’ has been defined as data not covered under the Negative List, i.e., data declared as non-shareable by concerned Departments and sensitive data as defined under various Acts and Rules.
As per the Policy, each Department has to prepare its Negative List. The confidential datasets in the interest of the country’s security, are not open to the public and would fall into the Negative List. All other datasets which do not fall under this Negative List would fall under the ambit of the Open List.
These datasets would need to be prioritised into high-value and non-high value datasets. The data thereafter shall be classified into three segments:
- Primary data, such as population censuses, education censuses, economic surveys, etc.
- Processed/Value-Added Data, such as Budget, Planning, etc.
- Data generated due to the delivery of Government services, such as income tax collection, MNREGA salary distribution, and so on.
The Open Government Data (OGD) Platform India’s data must only be in the open data format, as defined in the Policy. The data must be handled internally to guarantee that the quality level is satisfied, i.e., correctness, freedom from any legal difficulties, respecting individual privacy, and that national security is not jeopardised.
The Policy stipulates that while prioritising dataset releases, it should be attempted to publish as many high-value datasets as possible.
Data Ownership and Legal Liability
The Policy distinctly states that the ownership of the data set will lie with the respective publisher Department/Ministry. The registered users are required to acknowledge the source as and when any data is published in any form.
It is further clarified that the low-value data sets or high-value data sets must comply with relevant enforced laws and regulations, and the onus lies on the concerned publisher Department or Ministry to ensure that the data sets are secure and not at risk.
Data Platform and Format
The Policy has mandated the respective ministries and departments to establish a Data Cell, nominate Data Control Officers, identify data contributors, identify data sets, classify them to Open Lists or Negative Lists, publish data sets on open and machine-readable formats, and in regular periods.
Based on a current examination of data formats used in Government, it is suggested that the data be released in one of the following forms: CSV (Comma-separated Values), XLS (Excel Spreadsheet), ODS (Open Document Formats for Spreadsheet), XML (Extensive Markup Language), RDF (Resources Description Framework), KML (Keyhole Markup Language used for Maps), GML (Geography Markup Language), RSS/ATOM (Fast changing data, for example, hourly/daily)
REMEDIES INTRODUCED
The draft Policy intends to establish the Indian Data Office and Indian Data Council to streamline and consolidate data access of non-personal data to stakeholders. The Indian Data Council (IDC) is comprised of India Data Officer and Chief Data Officer of Union & State Departments (in case of state two-year rotation tenure among State Departments). The IDC will finalise the data standards, formats and metadata standard and other guidelines.
The Policy intends to address the inconsistencies and fragmentation of the chain of command in the present framework. The Policy has also attempted to tackle inconsistency in identifying data sets by the concerned Ministries and Departments by providing a data-sharing tool kit to the Data Officers of Government Departments.
Implementation of the Policy will solve the problem of sub-standard data sets and duplication and streamline the process.
POTENTIAL CHALLENGES AND BOTTLENECKS
- Enforcement and Intra-Governmental Cooperation
The lack of well-structured business rules among the Ministries and Departments can result in the production and identification of sub-optimal data sets, duplication of data and inadequate discovery of relevant data.
Reasons behind the aforementioned are having multiple chains of command among the Ministries and Departments. Each Ministry has its separate data portal that is not integrated with the OGD Platform. Though integrated, there can be inconsistencies or delayed responses on the platform.
- Data Licensing and Privacy
It is pertinent to note that the current framework does not deal with any licensing framework, pricing of data sets, or criteria of valuation. Though the data is supposed to be shared anonymised, the absence of anonymisation and de-identification guidelines to assist relevant Department data cells and chief data officers might raise privacy concerns.
- User-Friendly Data Sharing Platform Interface
Due to the existing inconsistencies as mentioned herein above, there can be drawbacks pertaining to the lack of community engagement and feedback mechanisms. Hence effectively, there is no mechanism for citizens to request particular data sets or raise their complaints about particular data sets.
AMLEGALS REMARKS
Data and processing of data will play a major role in the digital transformation of Governmental services and the digital economy. Vide the Policy, the Government has addressed the concerns in the present framework, and the same shall aid in achieving India’s economic goal by 2025.
That said, the absence of a specific data privacy legislation has brought about operational difficulty to hold violators accountable and give remedy to privacy violation or breaches, as the Policy still lacks grievance redressal mechanism. Therefore, there is a need to build a stringent safeguard mechanism in addition to the broad principles to protect privacy of public data and integrity of such data.
Furthermore, the proposed India Data Office has an overlapping jurisdiction with the proposed Data Protection Authority under the Data Protection Bill, 2021, and the same needs to be addressed or amended accordingly in the Policy.
Furthermore, even though the Policy has prescribed restriction on data retention by concerned Departments; the duration of the same has been left to the discretion of the said Department which can pose to be a problem later on.
–Team AMLEGALS assisted by Mr. Mridul Pateriya (Intern)
For any queries or feedback, please feel free to get in touch with aditi.tiwari@amlegals.com or mridusha.guha@amlegals.com
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