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!”