The Laws of Public Data Gaps

One of the most significant developments in the digitalisation and automation of government infrastructure is that the capacity of officials to collect, with minimal costs, valuable data on the performance, users, and impacts of public services is increasing exponentially. Public law thought tends to view this growing capacity through a concern about over-collection and misuse of the public’s data, with privacy and the protection of data being a particular anxiety. But there is also an opposite problem that has generally been neglected by public lawyers: it is still the case that public sector organisations routinely do not collect, in many areas, even the most basic data on the operation and impact of public services. This chapter, which grounds its discussion in the UK context, argues that these ‘public data gaps’ are not only a significant and growing problem of modern digital governance, but they are also a problem with distinctly legal dimensions. The chapter provides a new conceptualisation of the nature, causes, and harms of public data gaps before demonstrating how the problem raises questions for a range of important ideas in public law, including rationality and equality, access to justice, data protection and privacy, and duties of record-keeping and disclosure. Ultimately, alongside and as a part of the increasingly sophisticated legal analysis of the problems of government collecting too much data, we suggest the field ought to develop much more nuanced thinking around the laws of public data gaps.