The Italian Administrative Court with judgment no. 8472 of December the 13th 2019, stated that the public administration is legitimate to use algorithms for administrative procedures and in particular for the selections in public competitions.
In the case at hand, where some of the participants complained about being unfairly discriminated, the Italian Administrative Court legitimize the use of algorithms by referring to an actual 4.0 revolution of the public administration.
The use of technologies has to keep into consideration three principles:
- The knowability of the existence of automated decision-making processes, also for the purpose of the 2006/679 Reg., and the possibility of receiving “significative information based on utilized logic”.
- The non-exclusivity of the algorithmic decision, for which there has to be a human intervention able to control and validate the decision, a model known as HITL “human in the loop” which involved the interaction of the machine with a person.
- Non algorithmic discrimination, for which software’s mathematical procedures must allow the correction of the data to avoid any discrimination.
The Italian Administrative Court ruled that, in this case, the algorithm was not used in compliance with the aforementioned principles and that “the impossibility to comprehend how – through the mentioned algorithm – the available vacancies were assigned constitutes in itself a flaw likely to invalidate the procedure”.
Within a few months, the Italian Administrative Court was called upon to decide on the legitimacy of denying access to administrative documents in order to know a software’s algorithm.
Such possibility was denied and the Italian Administrative Court, even without commenting on this matter, reiterated that the algorithm owner can object to such access and that s/he is considered “jointly interested” in the administrative procedure.
The judgment no. 30 of January the 2nd 2020 states that the owner of the software source code is jointly interested “in the algorithms access request procedure, since the acceptance of the access application could cause an injury in her/his own juridical sphere”.
As a matter of fact, the owner of personal data or of technical or trade secrets which could be unveiled by accessing to documents has an equal or opposite interest compared to the one of the subject asking for publicity.
The Italian Administrative Court resumes the definition of algorithm expressed in a previous case (judgment n.2270/19) as an “ordinated sequence of operations through which the software operates” and affirms that “there is a technical rule, resulted from the programmer’s creative work, which is unknown and not easily accessible to experts and industry operators, protected by its owner and subjected to economic evaluation”.
Regardless of the fact that the algorithm can be considered or not an administrative document, the Judge states that “the owner of the algorithm, object of the access application, qualifies as the counter-interested party to the exposition, as by displaying the requested documents s/he could be subjected to a privacy impairment of her/his creative work.
In the present case, it is possible to recognize a procedural defect deriving from a failed notification of the appeal also to the counter-interested party.
Instead, the Italian Administrative Court has not commented on which is the prevalent interest between the transparency requirements and the right to protect industrial secrets.