In January, the government announced plans to amend the Freedom of Information Act 2000 (FoI) to ensure public authorities proactively release data in a way that allows businesses, non-profit organisations and others to reuse it for social and commercial purposes.
OpenlyLocal, a local government data aggregation site, has said that, at present, most councils do not provide ‘fully’ open data that could be reused and distributed, while the cabinet minister Francis Maude accused councils last year of ‘deliberately making data unusable to anyone else’.
On the other hand, some authorities have expressed concerns about FoI being ‘abused’ by the private sector.
They have cited examples of FoI requests where they are effectively asked to do unpaid research or to supply information, which is then sold on to other public authorities.
Clause 92 of the Protection of Freedoms Bill, currently going through parliament, contains proposals to require all public authorities to release datasets in a reusable electronic format.
If passed, which seems likely, it will mean more FoI requests from commercial companies and data aggregators, and fewer reasons for public authorities to say no.
What is a dataset?
A dataset is a collection of information held in electronic form where all or most of the information meets the four criteria set out in the following paragraphs (of the new section 11(5) of FoI):Examples of the types of datasets which meet the definition will include postcodes and references used to identify properties, spend data, lists of assets and information about job roles in a public authority.
- It has to have been obtained or recorded for the purpose of providing a public authority with information in connection with the provision of a service by the authority or the carrying out of any other function of the authority;
- It is factual information which (a) is not the product of interpretation or analysis other than calculation, in other words that it is the ‘raw’ or ‘source’ data; and (b) is not an official statistic – the meaning given by the Statistics and Registration Service Act 2007 (SRSA) (official statistics have been excluded from the definition of datasets because the production and publication of official statistics is provided for separately in the SRSA 2007); and
- It remains presented in a way that – except for the purpose of forming part of the collection – has not been organised, adapted or otherwise materially altered since it was obtained or recorded (datasets which have had ‘value’ added to them or which have been materially altered, for example in the form of analysis, representation or application of other expertise, would not fall within the definition).
Datasets to be released in reusable electronic form Clause 92 of the bill will amend section 11 of FoI (means by which communication is to be made).
At present, section 11 allows a requester to choose the format of the information to be supplied to them.
As long as this is reasonably practicable the public authority must give effect to his preference.
A new section 11(1A) will mean that in future, where a request is made for information held by a public authority that is a dataset, or which forms part of a dataset, and the applicant requests that information be communicated in an electronic form, then the public authority must, so far as is reasonably practicable, provide the information in an electronic form that is capable of reuse.
This is in a machine-readable form using open standards which enables its reuse and manipulation.
Thus, in future, authorities will be prevented from turning an Excel spreadsheet into a PDF document before releasing it in order to stop recipients conducting their own analysis or reformatting the data.
New section 11(1A) uses the words ‘so far as is reasonably practicable’.
There is no absolute duty for datasets to be provided in a reusable format because it is recognised that, in some instances, there may be practical difficulties in relation to costs and IT to convert the format of the information.
Reuse of copyright works
New section 11A(2) provides that, when communicating a dataset to an FoI applicant and all or part of the dataset contains a relevant copyright work, a public authority must make the copyright work available for reuse in accordance with the terms of the specified licence.
The terms of such a licence will be specified in a new section 45 of the Code of Practice.
It is not known at present whether such licences will allow public authorities to charge for allowing reuse.
The definition of a ‘relevant copyright work’ includes a copyright work – as defined by the Copyright Designs and Patents Act 1998 – as well as a database subject to a database right.
This provision is designed to prevent public authorities from refusing to release datasets on the basis that they contain a copyright work and so are exempt under section 43 (commercial interests).
New section 11A(1) provides for the four criteria which must be met for the new requirement to allow reuse of datasets (in section 11A(2)) to apply: (a) a person must have made a request for a dataset or part of it; (b) the dataset requested includes a ‘relevant copyright work’; (c) that the public authority is the only owner of the ‘relevant copyright work’ (in other words that it is not owned in whole or in part by a third party); and (d) that the public authority is communicating the relevant copyright work to the requester under the FoI – in other words, it is not being withheld under one of the exemptions.
These provisions will require public authority information professionals and lawyers to brush up on their knowledge of copyright and database law.
There are many cross-references to the Copyright Designs and Patents Act 1998 as well as the Copyright and Rights in Databases Regulations 1997.
Once a dataset is disclosed following an FoI request, the Protection of Freedoms Bill amends FoI to place obligations on the public authority to make that dataset more widely available.
Under new section 19(2A) of FoI, publication schemes must include a requirement for the public authority to publish any dataset it holds, which is requested by an applicant, and any updated version of the dataset.
All datasets published in this way will have to, where reasonably practicable, be in an electronic form which is capable of reuse and any relevant copyright work within it will have to be made available for reuse in accordance with the terms of the specified licence (as above).
New section 19(2A) requires authorities to publish any dataset as discussed above unless ‘the authority is satisfied that it is not appropriate for the dataset to be published’.
The Campaign for Freedom of Information, in its submission to the Protection of Freedoms Bill Committee on clause 92 of the bill, has criticised this carveout as not within the spirit of the act and because it involves a subjective element which will be difficult for the information commissioner to oversee.
It remains to be seen whether this provision is amended as per the campaign’s suggestion to a ‘reasonably practicable’ test.Clause 92(5)(a) of the bill amends section 45 of the FoI (issue of code of practice) to insert a new requirement for the code of practice to include provision relating to the disclosure by public authorities of datasets held by them.
Paragraph (b) of the same clause sets out the different provisions relating to the reuse and disclosure of datasets that may, in particular, be included in the code.
Paragraph (c) amends section 45(3) of the FoI so as to provide for the possibility of making more than one code of practice under section 45, each of which makes different provision for different public authorities.
The new FoI obligations to be introduced by the Protection of Freedoms Bill will no doubt mean more work for public authorities at a time when money is scarce and staff levels are being reduced.
There will be at least one new code of practice to implement as well as a new publication scheme to adopt.
It will be interesting to see the terms of the ‘specified licence’ and to what extent, if at all, public authorities will be able to charge for allowing reuse of datasets.
Ibrahim Hasan, solicitor and director of Act Now Training