The Right to Access Administrative Documents in the Algorithmic Era: Analysis from a Belgian Law Perspective

Abstract

This contribution aims to analyse whether and to what extent the Belgian (federal) legislation on access to administrative documents can ensure the transparency of administrative algorithmic systems. To this end, the contribution first identifies the different types of information whose access can help control these systems and the decisions they make possible. It then analyses the scope of application of this leg- islation. It shows that the right to access administrative documents is often at risk of being circumvented as soon as the requested elements of information (such as source codes or training datasets) are exclusively in the hands of a private actor. This phenomenon could be reinforced because, as discussed in this contribution, the exceptions that impose the refusal to disclose administrative documents based on intellectual property rights or trade secrets protection may be less protective of private interests than it is usually believed. In conclusion, this contribution reminds us that transparency — understood as access to information — is only a necessary but not a sufficient condition for controlling (administrative) algorithmic systems. Finally, it highlights new research avenues, such as the possible application of the theory of delegation of powers and the potential qualification of the private developer of the algorithmic system as an administrative authority. These questions are essen- tial to delineate the scope of application of administrative law in the algorithmic era.