FOI Can Make You Money!

A guest post from Ibrahim Hasan

Many public authorities have expressed concerns about the Freedom of Information Act 2000 (FOI) being “abused” by the private sector. They have cited examples of information requests where they are effectively asked to do unpaid research or to supply facts, figures and statistics, which are then repackaged and sold on for profit with little return for the authorities. Many have taken the opportunity to present evidence to the Justice Select Committee  about the cost of dealing with FOI requests. Although some of the figures cited are somewhat dubious, there seems to be groundswell of opinion that the price of openness and transparency is too high. But how many of the same public authorities have considered the forthcoming changes to the FOI regime which may well assist in defraying some of the costs?

The Protection of Freedoms Bill will provide an opportunity for public authorities to raise much-needed revenue from the licensing of some information released pursuant to FOI requests. The Bill is currently proceeding through the final stage in Parliament, strangely termed “Ping Pong”.

Clause 102 of the Bill will amend FOI to require all public authorities when releasing datasets (raw unprocessed data) pursuant to an FOI request, to do so in a re usable electronic format. Where such datasets contain copyright work (owned by the authority), they must make that copyright work available for re use in accordance with the terms of a specified license. Finally once datasets are disclosed under FOI, they must also be published together with any updated versions. (For a full discussion of the proposals see my article here)

As far as disclosures of normal datasets go (i.e. those not containing copyright work) the usual FOI charging provisions will apply as set out in Section 12 and the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. This means that public authorities will only be able to charge photocopying, postage and any disbursements.

So what’s new (I hear you ask)? The Bill is going to create an additional burden without additional money! This is true in relation to the mere disclosure of datasets. However when it comes to allowing a requestor to re use a released datasets containing copyright work (owned by the authority) there is an opportunity to charge more.

A new Section 11A(4) will be added to FOI by the Bill. This states that nothing prevents a public authority “from exercising any power that
it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re use.” This means that if there are any other regulations or statute which allow a public authority to charge for re use of copyright material contained in a dataset, then FOI cannot be used by the requestor to obtain free permission to re use the same. Note though that this only covers re use of the material not disclosure of it. Access to the dataset is still covered by FOI and the Fees Regulations (discussed above).

A new Section 11B of FOI also allows for regulations to be made to make provision about the charging of fees by public authorities in connection with making copyright material in datasets available for re use. Section 11B(2) states that these regulations may:

(a) prescribe cases in which fees may, or may not, be charged,

(b)  prescribe the amount of any fee payable or provide for any such amount to be determined in such manner as may be prescribed,

(c)  prescribe, or otherwise provide for, times at which fees, or parts 
of fees, are payable,

(d)  require the provision of information about the manner in which amounts of fees are determined, 10

(e)  make different provision for different purposes.

Section 11B(3) also allows for the possibility of public authorities making a profit from charging for re use of datasets which include copyright material:

(3)  Regulations under this section may, in 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. (my emphasis)

These new provisions are a significant departure from the normal FOI charging principles as discussed above.  They were added as amendments to the Bill during its passage through Parliament in what seems to be an attempt to lighten the burden on public authorities who receive FOI requests from businesses who may want to re use copyright material.

The Bill seems to duplicate the Re-use of Public Sector Information Regulations 2005, which came into force on 1st July 2005. The aim of these Regulations is to encourage the re use of public sector information by removing obstacles that stand in the way of re use. It requires those bodies covered by it to consider requests for re use fairly and to impose fair and transparent conditions on re use. The Regulations are rarely invoked by businesses seeking information from public authorities.

The main problems with the Regulations are they do not impose an obligation to allow re use, do not have a binding enforcement mechanism and do not apply to some organisations e.g. universities and cultural establishments. The amended FOI provisions relating to datasets, to be introduced by the Bill, will apply to all public authorities, will be obligatory and will be enforced by the Information Commissioner.  Therefore there is a much greater chance that they will be used to their full effect by both public authorities and the private sector.

Much of the detail will be contained in a new Section 45 Code of Practice. Much depends on how the Government defines “reasonable return of investment” i.e. how much profit can be made. Certainly the potential is there for canny public authorities to raise some much needed revenue from the licensing of datasets. Work needs to start now on identifying relevant datasets and raising awareness amongst stakeholder departments that “FOI can make you money!”

 

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk). Follow him on Twitter https://twitter.com/#!/ActNowTraining

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8 thoughts on “FOI Can Make You Money!

  1. Matt Hudson says:

    Senior officers may like this idea, and this may be useful in itself, but the concept of charging (twice, some might say) really flies in the face of most FOI officers efforts to move the culture of their organisation to one that is open by default.
    The RPSI Regs have never been used much by either party, so will the added incentive of making a profit will make much difference?
    Does promoting FOI as a profit-making exercise undermine the moral case, the public service case and the economic development role case for an authority to be open?

  2. Andrew says:

    Ibrahim, while I appreciate the spirit behind this post, I have to say that I find the proposition that public authorities should seek to raise revenue from the datasets they hold quite offensive.

    There are instrumental and intrinsic reasons behind FOI laws. The instrumental reasons: greater accountability, enabling public participation in policy making and service delivery, rebuilding public trust in government, etc were reviewed by the Constitution Unit in its research on the operation of the Act. Although we do not have to agree with their conclusions or methodology, that was the Unit’s aim, and formed the basis of some of its evidence to the Justice Select Committee recently.

    From an instrumentalist point of view, enabling public authorities to charge for re-use of the data they make available may be desirable, but deciding whether it is desirable does depend on what the desired outcomes, or policy goals, are that lie behind the proposed statutory provisions, and whether you agree with them.

    However, from the perspective of FOI laws being introduced for their intrinsic merit, the proposal in the ‘Protection of Freedoms Bill’ appears to border on the grotesque (and possibly an Orwellian use of ‘freedom’ in this instance). The intrinsic reason for FOI laws is that, in a democracy, the information held by state agencies is collected, gathered, processed, created, massaged and disposed of by agencies whose authority derives from us, the citizens, who vote representatives into office at a national, regional and local level, and whose income is derived from our (and companies’) taxes.

    The information held by these agencies should not be viewed as being owned by these authorities, but by us, the people, in whose name, and at whose expense, it has been gathered or created. Public authorities are merely custodians of the information owned by the public, from the intrinsic perspective, and FOI laws – at their most basic – provide a framework in which the public interest in receiving the information held by the authority is balanced with a number of competing public interests that may, from time to fime, favour withholding it at the point in time when access to it is sought.

    FOI laws should be written to respect this intrinsic purpose, as well as to try and achieve legitimate policy goals, and the language of FOI laws often does reveal this mixture of intrinsic and instrumentalist approaches.

    However, the proposed provisions you are lauding as a reason why public authorities should temper their whinging about the ‘burdens imposed by FOI’ are antithetical to the intrinsic justification for FOI. If it is ‘my’ information or data that the authority holds as custodian, not only should I receive it for no cost (or minimal cost, depending on the complexity/volume of the search required), but there should be no restrictions on my re-publication of information that belongs to me, as a member of the public.

    Much effort is being made in the UK and around the world to try and advance the proposition that data held by public authorities should be made freely available, with a licence for re-use that is as liberal and low-cost as possible (preferably ‘CC-BY’ in Creative Commons-speak). This rests both on the intrinsic argument for FOI, and on the instrumental argument that government will derive greater income from taxation of any profits made by companies exploiting the data than it would get from selling licenses to re-use it.

    The current UK government appears to be wanting to have its cake and eat it on this score. While it is making available datasets for re-use, the ones that are created (or have value added to them) on the back of funds received for access to the data, e.g. some Ordnance Survey digital mapping data, are likely still to be charged for. Probably because a government dedicated to reducing overall levels of taxation does not want to have to fund the collection of things like geo-data from general taxation: for this kind of high-value material, they appear to prefer the user-pays approach. The proposals in the Protection of Freedoms Bill appear to be about giving statutory effect to this policy.

    It is possible to support these proposals to amend the FOI Act from an instrumentalist point of view, if you agree with the desired policy goals (although even then, there will be similar concerns to charging for FOI requests: will it cost more to administer than will be collected in revenue?). But if you believe that access to government held information and data stems from our intrinsic rights as citizens in a democracy, I’m not sure it is possible to endorse the proposed amendments as positive, or ameliorative of public authority concerns about workload.

    Ultimately, there are lots of good arguments to be made for FOI saving public authorities (and members of the public) money in the long run, but the possibility of using FOI to generate revenue for an authority is not an argument I’d want to seeing gaining much support.

    What do other members of the Save FOI campaign think?

    • Hi Andrew

      Many thanks for your comment.

      I accept your view and to a great extent agree. However the idea behind the post is that it’s not all doom and gloom. For those who whinge about the costs of FOI and requests from commercial companies seeking to make a fast back, there is some “good news”.

      The SaveFOI campaign is not be pushing this line, just raising awareness and a creating a forum for debate.

  3. The area where councils could stem losses, rather than make profits, is by looking closely at each FOI request which is asking about costs and asking themselves if they have been wasting money on services. The famous five Barnet bloggers highlighted the lack of a contract for security which led to a tender and reduced spend on security by 6 figures.

  4. Tim Turner says:

    I think the biggest mistake for anyone to make about FOI is to assume (especially on behalf of others) what the legislation is ‘for’. The Information Commissioner around at the time FOI was passed (Liz France) urged that there should be a purpose clause in the bill, which would settle this once and for all. It’s not there, so FOI’s purpose is in the eye of the beholder. Some see it as a way to get stories. Others see it as a positive way of finding out how their taxes are used. I think FOI is a leveller, an opportunity to set the record straight and a legitimate way to cause mischief by asking awkward and provocative questions. The idea that the public sector might be able to make money out of the re-use of information isn’t offensive to me at all, it’s just another one of the many different things that FOI can end up doing.

    I doubt that the other people involved in this campaign use FOI the way I do, or see it the way I see it. For example, I have significant doubts that FOI will succeed in rebuilding trust unless we privatise our politics and Sweden get the contract. But differing perceptions of what the law does or how it works doesn’t change a shared and sincere belief that it should be left to do all the different things it does.

    • Andrew says:

      Tim, you’re right that the Blair government rejected the proposal that there should be a standalone purposes clause in the FOI Act. However, it also took a miniscule step in that direction in an attempt to fend off criticism on this point. Jack Straw had the long title of the draft Bill amended, so that instead of it being ‘An Act concerning the disclosure of information’ (or something neutral, along those lines), it became ‘An Act to make provision for the disclosure…’. Straw (and the government) argued that simply inserting what the Act was ‘for’ into the long title was enough to give a purposive steer for any occasions where judicial interpretation was required. Lots of people were, rightly, sceptical of this, but it does make it difficult to argue that it is a mistake to assume what the legislation is ‘for’. And that’s leaving aside all the other statements made in white papers, ministerial speeches, and so on.

  5. Blog Now says:

    […] 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 […]

  6. […] 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 […]

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