Some research data may not be published with open access for legal or ethical reasons, (for example when the data are covered by confidentiality rules, contain personal data, include copyrighted content etc.).
State sector higher education institutions are covered by the principle of open access to information. This means that research data and research material that is stored at the institution and is to be regarded as received by or produced at the institution is a public document according to the Freedom of Information Ordinance. A public document is a publicly available document that everyone has the right to read, except where covered by the confidentiality provisions contained in the Public Access to Information and Secrecy Act. Confidentiality may apply, for example, if a document contains sensitive personal data.
This also applies to research material. Access to research material that is copyrighted can thus be granted under the principle of open access on the grounds of it being a public document. However, if the material is covered by copyright, the person requesting the material as a public document may not use the research material without the permission of the copyright holder. The fact that research material constitutes a public document thus does not mean that the employer “owns” the material according to the copyright rules.
It is the higher education institution’s responsibility to ensure that the principle of open access to information is applied correctly. The regulations surrounding the principle of open access with regard to research data may be difficult for an individual researcher to comprehend. The institution therefore also has a responsibility to provide information and support to researchers on how the principle of open access to information may be applied to their research projects. The principle should come as a surprise to researchers.