AI & LAW: Administrative due process when using automated decision‑making in public administration

Artifcial Intelligence and Law (2021), Markku Suksil –

Various due process provisions designed for use by civil servants in administrative decision-making may become redundant when automated decision-making is taken into use in public administration. Problems with mechanisms of good government, responsibility and liability for automated decisions and the rule of law require attention of the law-maker in adapting legal provisions to this new form of decision-making. Although the general data protection regulation of the European Union is important in acknowledging automated decision-making, most of the legal
safeguards within administrative due process have to be provided for by the national law-maker. It is suggested that all countries have a need to review their rules of administrative due process with a view to bringing them up to date regarding the requirements of automated decision-making. In whichever way the legislation is framed, the key issues are that persons who develop the algorithm and the code as well as persons who run or deal with the software within public authorities are aware of the preventive safeguards of legality in the context of automated decisionmaking, not only of the reactive safeguards constituted by the complaint procedures, and that legal mechanisms exist under which these persons can be held accountable and liable for decisions produced by automated decision-making. It is also argued that only rule-based systems of automatized decision-making are compatible with the rule of law and that there is a general interest in preventing a development into a rule of algorithm.

Introduction

The use of automated decision-making (hereinafter ADM) is on the increase not only within the private sector (banks, insurance companies, etc.), but also within the public sector, where it may be considered suitable for various decision-making processes within public administration. In that respect, the use of ADM is linked to a paradigmatic change in the method of production taking place in society, from the early agriculture-based rule of king via the recent industrialism-based rule of law to the incoming digitalization-based rule of algorithm (Suksi 2017, 285–294). When ADM is used in the service of public administration, the objective is to produce a decision that involves the exercise of public law in a manner that defines, for an individual or for a private legal entity, a particular right, duty or benefit on the basis of material legislation.

In particular, expectations of speedy decision-making have an impact on areas of public administration where so-called mass decisions are made (taxation, social benefits, etc.) and where ADM can be used to perform tasks of an uncomplicated nature. Legislation may, indeed, contain provisions that underline the need for fast decision-making, which is the case, for instance, in Finland: according to Section 21(1) of the Constitution of Finland (731/1999), everyone has the right to have his or her case dealt with without undue delay. The provision is repeated in Section 23(1) of the Administration Act (434/2003), according to which an administrative matter must be dealt with without undue delay, supported by a provision in Section 14(1) of the Act on the Civil Servants of the State (750/1994), according to which a civil servant of the state must perform his or her tasks without delay. For these structural reasons alone, and to support the use of ADM in public administration, it is important to analyze the preconditions of an administrative due process nature that ADM either is or should be placed under, not only in Finland but also in other countries.

However, few substantive requirements are currently imposed upon ADM. At the European level, Art. 22 of the General Data Protection Regulation of the European Union (2016/679; the GDPR) creates, as of 25 May 2018, a right for an individual to opt out from ADM as long as the ADM procedure is not regulated in national or European law so as to make it compulsory for the individual. In addition, Articles 13(2)(f), 14(2)(g) and 15(1)(h) of the GDPR create a right for the individual to know the logic of the ADM. However, this EU regulation is relatively narrowly confined to the area of data protection; whilst important in itself, it leaves a large part of ADM processes to be regulated in other law, mainly at the national level. National ADM rules vary from non-existent to very general and in some cases to specific rules on particular ADM systems (Malgieri 2019). In Sweden, the new Administration Act (2017:900), in force since 1 July 2018, contains a very open provision in Section 28(1), according to which an administrative decision may be made by an individual civil servant alone, or jointly by several civil servants, or by way of automated procedure (Suksi 2018a). In Finland, it appears that old provisions on decision-making might apply, as supplemented by the Act on Electronic Communication in the Activities of Public Authorities (13/2003), which, inter alia, makes it possible to sign decisions electronically, although it does not contain substantive rules about decision-making by ADM (Suksi 2018b). The assumption appears to be that the existing legislation is technology neutral, but at least Section 118 of the Constitution of Finland and Section 91 of the Local Government Act (410/2015) depart from a premise of human beings as decision-makers.

This article deals with the issue of fully automated decision-making and does not explicitly consider the use of ADM as decision-support when civil servants are making decisions. The discussion is here carried out largely from a Finnish perspective, with some limited observations concerning Sweden, Denmark and other countries. However, the issues relating to the use of ADM in public administration are of a general nature. It is therefore hoped that readers may relate these notes to corresponding phenomena in their own jurisdictions.

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