How do we introduce e-government without harming our legal rights? | 19
tion Act about the right to make use of representatives and be assisted by others (see also Case
Nos. 2011 12-1, 2012-5 and 2016-1).
In addition to this, there have also been cases
where the chosen technical design of Public
Digital Post meant that the authority’s identity
was not always apparent from the letters which
citizens received (Case No. 2015-22). In another
case, citizens were not informed about the authority’s decisions but had to search the system
themselves in order to see whether the authority
had made a decision (Case No. 2011 18-1). Finally,
there have also been cases where the authorities
were not aware that statutory authority is required
when requesting citizens to communicate digitally with public authorities (Case No. 2015-36).
A number of the above cases indicate how essential it is for the legal rights of the individual
citizen that digital solutions are configured in
accordance with statutory law. But the cases
also imply another vital lesson: The problems
could have been avoided in almost all cases if
the authority had included administrative law
and design of the digital solution in the planning
from the beginning (Case No. 2014-34).
System errors come at a high price
It is a prerequisite for the sound development of
public digital solutions that the authorities ensure that they obtain a thorough overview at the
outset of the case types and procedures which
the new solutions must be able to handle (Case
No. 2014-24). It is also necessary to consider
which case processing rules in regard to consultation of parties and grounds are applicable in
the cases in question.
It is also a prerequisite for fully automated case
processing that you are already able at the time
of development of the system to foresee the
situations that may occur in actual practice and
to design the solution so that the system takes
such situations into account. This will typically
not be possible in cases where an individual assessment has to be made. Sometimes, a digital
solution can be configured in a way so that cases
under certain circumstances can be selected
for manual case processing. In other instances,
a fully automated case processing can only
be implemented if the individual assessment
is completely taken out of the legislation, and
the legislative basis so to speak can be put on a
mathematical formula.
Errors can result in disregard of the authority’s
(the system’s) decision, meaning that it is considered invalid. In that case, the authority must
process the case again and make a new decision. There may be a basis for compensation if
the citizen has suffered a financial loss.
The Ombudsman is concentrating his attention
on citizens’ legal rights. But it is not only the individual citizen’s legal rights and trust in the public
administration that are put at risk if a digital
solution fails. It is also a waste of resources since
it can be expensive as well as technically difficult
to change a complicated IT system once it has
been implemented. In a case about applicants
for the State Educational Grant (SU) not having
the possibility to be represented by others, it
took more than 18 months to put the system
right after the Ombudsman expressed criticism
(Case No. 2016-1). In the previous case about the
Danish Customs and Tax Administration (SKAT)
being unable to charge interest, the system was
not able to add interest until two years after it
had come into operation.
Sometimes, the expenses of not putting the systems right until afterwards are so heavy that you
choose to legitimise the unlawfulness (Case No.
2015-21).
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