The Protection of Freedoms Act 2012 amends the Freedom of Information Act 2000 (FOI). The key points of Section 102 of the Act (which amends section 11, 19 and 45 of FOI) are:
- There will be a new duty on public authorities, when releasing datasets, to adhere to any request to do so in electronic form which allows their re-use where reasonably practicable.
- Any dataset containing copyright material (where the authority holds the copyright) must be made available for re-use under a specified licence.
- Publication schemes will, in future, contain a requirement to publish datasets, which have been requested, as well as any updated versions.
- Such datasets will also have to be published in an electronic form capable of re use and any copyright material must be available for re use in accordance with the terms of a specified licence.
- Public authorities will be able to charge a fee for allowing re use of any datasets containing copyright material.
It is important to note that the changes do not give new rights of access. They are concerned with format and the ability to re-use datasets, once the public authority has decided that no exemptions or other provisions (e.g. costs, vexatious) in the legislation apply.
New Guidance and Code
There is also a new Code of Practice (datasets), which will sit alongside the existing Section 45 Code of Practice under FOI. This outlines the licencing framework which public authorities must use when making copyright material within datasets available for re-use.
The new code aims to make it clear as to what is meant by the terms set out in the new provisions. For example, what is meant by “an electronic form which is capable of re-use” or a “re-usable format” for the purposes of the Act.
The new code contains three standard licences available to public authorities when allowing re use of copyright material contained in a dataset which is disclosed under FOI. The first two are the Open Government Licence and the Non-Commercial Government Licence. Both allow re use of the information without charge including copying, publishing, distributing and adapting the information as well as combining it with other information. The new code encourages authorities to use the Open Government License wherever possible. The Non-Commercial Government licence is slightly more restrictive because it contains a clause preventing the use of the information “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” It will be interesting to see if public authorities routinely offer this licence (even though it would be against the spirit of the Act and the new code) just to prevent the private sector from profiting from the requested dataset.
The third type of licence is the Charged Licence. This has been published by The National Archives in beta form . It can be usedby public authorities that have reason to charge for the re-use of the dataset information they hold or produce. As I have said before, this provides an opportunity for public authorities to raise some much needed revenue. The Secretary of State has exercised his power (under new Section 11B of FOI) to make regulations prescribing “the amount of any fee payable or providing for any such amount to be determined in such manner as may be prescribed, provide for a reasonable return on investment. (See The Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013). It will be interesting to see how many complaints are made to the Information Commissioner about public authorities over charging.
What to do now?
According to the ICO, public authorities need to:
- Start thinking about the definition of a dataset: what information or categories of information do they have that fits the definition?
- Promote the key principles of open data in their organisation: use an open format and open licences by default and only deviate from this when they have good reasons to do so.
- Charging for re-use is not encouraged but can be justified in some situations: does the authority have existing powers that allow a charge? Can the cost recovery and return on investment be justified?
- Be clear who owns the intellectual property rights (IPR) in their datasets.
The ICO also encourages FOI officers to learn a little more about copyright, the licencing framework and the new version 2.0 of the OGL. In some organisations open data is not part of the remit of the FOI officer. It’s crucial to make sure these two functions have an understanding that they need to work together. Looking longer term, the ICO’s advice is to think about open data requirements when procuring new IT systems. Public authorities shouldimplement “transparency by design.”
In preparation for the provisions coming into force on 1st September 2013 the ICO has revised the approved model publication schemes to reflect the new legislative requirements. It has also published new guidance on datasets. Ibrahim Hasan’s detailed article on datasets will also assist. How will datasets be used by the private sector? (Read about Fearsquare.)
This will be discussed in our forthcoming datasets webinar. If you prefer a more detailed face to face discussion and sharing of best practice, please attend one of our one day workshops. If you want to give your career a boost, why not start by attaining an internationally recognised qualification in FOI?