Is the public administration allowed to avail of algorithms with regard to assessments within its competence? The Consiglio di Stato, the highest Court in the administrative judiciary of Italy, gives a positive answer to this question. It encourages the use of new form of information technologies in the administrative procedure, especially in standard serial procedures. Anyway it sets specific limits.
– Consiglio di Stato, Section VI, n. 2270/2019 –
In the ever-changing process of innovation and digitalization, the use of algorithms – a set of rules that precisely defines a sequence of mathematic operations – represents the last frontier for the modernization of the public administration.
According to Consiglio di Stato, a higher level of digitalization of the public administration is essential to comply with the principles of effectiveness and economic efficiency provided by art. 1, L. 241/1990. Those principles, in accordance with art. 97 of Italian Constitution, require the public administration to achieve its aims and to pursue the public interest in the less costly way streamlining the administrative procedures. The ultimate purpose of digitalization is providing citizens with better services.
The engineering of evaluative procedures shall not lead to the breach of the principles which guide the actions of the public administration. In fact, the technical rule which governs the functioning of the algorithm is an administrative rule set by humans even if it is implemented by a machine. Consequently, the rule shall comply with the general principles of the administrative action, such as reasonability, proportionality, openness and transparency. The rule shall also provide a final solution for all possible scenarios, even for those unlikely, so that there will not be a discretional application by the machine.
The rule on which the algorithm is based on is always defined by the public administration. The public administration alone has the competence to asses all the public and private interests involved and, on the outcome of the evaluation, the authority to adopt a duly motivated rule.
Then the correctness of the whole automated evaluation process performed by the machine shall be appraised by the judge and examined in the judicial review.
In this perspective the algorithm shall be qualified as an informatic administrative act.
In conclusion, the use of algorithm is allowed if and to the extent the administrative action is transparent and duly motivated. This makes it possible to understand the logic of the mathematical operations and the public interest pursued by a digitalized public administration.
Legal experts are required by digitalization to take on a new role in order to prevent an unlawful administrative action.