Case Summary
The Civio Foundation first reported in 2018 that thousands of people were not receiving the bono social, a public aid to pay electricity bills, to which they were entitled by law. The non-profit organisation, which is dedicated to monitoring public administration and promoting transparency and accountability in Spain, then focused on BOSCO, the public algorithm used to decide who is eligible for this subsidy. To this end, the Civio Foundation requested access to BOSCO’s source code, technical specifications and use cases.
After receiving no response, the organisation filed a complaint with the Council for Transparency and Good Governance, which partially agreed, granting access to the technical specifications and use cases, but not to the algorithm’s code. With this information, the Civio Foundation was able to demonstrate that the designed algorithm contained significant errors that prevented people eligible for the social bonus from receiving it.
However, the Council for Transparency and Good Governance refused to open the source code, limiting the right of access to public information based on the intellectual property of the code. For this reason, the Civio Foundation took the BOSCO case to court, making it the first case in Spain on algorithmic transparency.
The first instance decision and the subsequent appeal decision before the National Court of Justice rejected the opening of the source code of the public algorithm, justifying the restriction of the right of access by applying restrictions related to intellectual property, national security, confidentiality and the protection of economic policy. Recently, the Civio Foundation submitted the preparatory document for the cassation appeal to the Supreme Court, the first step in bringing the BOSCO case to the Spanish Supreme Court.
There are three different grounds for the appeal: that intellectual property rights should not be applied absolutely to limit access to the algorithm’s source code, that partial access to the information can be granted without having to request it in the initial application, and that the contentious-administrative jurisdiction should not address additional limits beyond those initially set by the Council for Transparency and Good Governance, as this poses a problem of legal certainty and a violation of the right to effective judicial protection.
In a few months we will know if the Supreme Court accepts the cassational interest of the BOSCO case and, if it does, the Civio Foundation will present the corresponding appeal to the Supreme Court, becoming the first litigation on algorithmic transparency to be dealt with by this judicial body in Spain.
Access to the full judgment
Further notes on contested technology
- → Solely Automated-Decision
- → The technology is deployed
Additional resources
CIVIO, “Spanish court rejects opening code for automated public decisions”, available at https://civio.es/novedades/2022/02/17/spanish-court-blocks-the-way-for-making-public-code-open-and-transparent
Author of the case note
