The right to algorithmic understanding : Transparency in automated decision making within public administration

Automated decision making (ADM) is not a new phenomenon within public administration. Millions of automated decisions are made each year, including matters on parental benefits, social security benefits and income tax. ADM is used increasingly within both government agencies and municipal agencies. In light of this development, it becomes vital to have legal mechanisms in place which ensure transparency in automated decision making. This is to make sure that decisions are correct and that the systems work in compliance with procedural safeguards such as objectivity and impartiality. This begs the question of whether new legal solutions are needed to secure transparency of automated decisions. Current ADM systems within public administration are based on static algorithms that cannot change unless they are programmed to do so. Robotic Process Automation (RPA) is such a technology, commonly used by municipal agencies. Given the development within artificial intelligence (AI), ADM systems based on AI might be the next step. Then again, taking into account the extensive problems with the non-transparency of the “black box” of AI makes this technology rather unfit for decision making within public administration. The legal system provides different ways for citizens to obtain insight into and control of public administration. The principle of public access to information provides a right for all to access official documents. The Administrative Procedure Act (2017:900) provides access to information for the party concerned with a matter and the General Data Protection Regulation (GDPR) of the EU gives a right to information for data subjects. These rights to information can be restricted, for example by provisions on secrecy. However, the legal rights to information do not secure a comprehensive or direct transparency of the workings of ADM systems within public administration. The kind of transparency provided is rather a transparency by proxy, an indirect transparency that substitutes for a direct and functional one. For example, the provisions of the Administrative Procedure Act are not adapted to ADM, and the application of the right to access official documents entails inconsistencies. If information is provided to a citizen, there is no guarantee of understanding for example a description of an algorithm. To create a direct and functional transparency of automated decisions and the workings of ADM systems, it is vital for law and technology to evolve in interplay. A general discussion of public access to ADM systems and their implications on public trust and the rule of law is also of the essence