The Use of Artificial Intelligence in the Decision-Making Processes of the Public Administration: Regulations and Executive Practice—The Case of the Italian Public Administration

Abstract

In recent years, the use of AI systems by Public Administrations, both in the context of administrative activities in general and, more specifically, in the context of decision-making processes, has increased disproportionately. However, given the difficulty of tracking down a specific law regarding the use of such systems in a public context in European and national law, especially in the context of administrative decision-making processes affecting the legal sphere of individual citizens, both administrative jurisprudence and the Italian Data Protection Authority have attempted to provide Public Administrations with guidance in this regard. On the one hand, they identify the legal requirements with which such systems must comply in order to be used, and, on the other, indicate (the Italian Data Protection Authority in particular) the main guarantees to be put in place in the case of their use or implementation. Among the legal requirements, one emerges in particular: that of the “non-exclusivity of the algorithmic decision”, from which the obligation to guarantee human intervention in the context of automated decision-making processes that may have significant effects on the legal sphere of citizens stems. This obligation derives from administrative jurisprudence from Article 22 of the General Data Protection Regulation (“GDPR”). However, jurisprudence makes no reference to the exceptions provided for in the same provision. When read in conjunction with Italian data protection regulations that have recently undergone important changes with Decree Law of October 8, 2021, no. 139, converted by Law No. 205 of December 3, 2021, this provision could allow administrations to introduce AI systems as part of their decision-making processes also without the need to ensure any human intervention, which could give rise to the risk of undermining the principle of legality that oversees administrative action.