The Freedom of Information Act 2000 (FoI) changed on 1 September 2013 to usher in a new era of open data. No longer is the act just about openness and transparency. The changes, brought in via section 102 of the Protection of Freedoms Act 2012, give FoI requesters new rights to request data in a reusable format and to reuse that data, even for commercial purposes.

The term ‘dataset’ is defined in the new subsection 11(5) of FoI:‘… information comprising a collection of information held in electronic form where all or most of the information in the collection:

(a) has 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,

(b) is factual information which— (i) is not the product of analysis or interpretation other than calculation, and (ii) is not an official statistic (within the meaning given by section 6(1) of the Statistics and Registration Service Act 2007), and

(c) 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.’

Examples of datasets include postcodes and references used to identify properties, departmental spending data, lists of assets and information about job roles in a public authority.

The key points of the 2012 act (which amends section 11, 19 and 45 of FoI) are:

  • There is a new duty on public authorities, when releasing datasets, to adhere to any request to do so, where reasonably practicable, in electronic form that allows its reuse.
  • Any dataset containing copyright material (where the authority holds the copyright) must be made available for reuse under a specified licence.
  • FoI Publication Schemes will now include 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 reuse and any copyright material must be available for reuse in accordance with the terms of a specified licence.

It is important to note that the changes do not give new rights of access. They are concerned with the format of a response and the ability to reuse datasets, once the public authority has decided that no exemptions or other provisions (for example, costs, vexatious request) in the legislation apply.

The changes are in line with the increasing trend towards open data. The government’s open data white paper (‘Unleashing the Potential’) discusses this trend and sets out government policy in this area. The aim of this policy is not only to promote greater transparency and accountability by releasing more data held by public authorities, but also to enable and encourage developers to reuse that data in new products and applications. This, in turn, is expected to create business opportunities and drive economic growth. The dataset provisions are part of this policy.

 New guidance and code

The Information Commissioner’s Office (ICO) has published new guidance on the changes.  It has also revised the approved model publication schemes accordingly.

There is also a new Code of Practice (datasets), which will sit alongside the existing section 45 Code of Practice under FoI. The new code aims to make it clear 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 reuse’, or a ‘reusable format’, for the purposes of the act.

The new code outlines the licensing framework that public authorities must use when making copyright material within datasets available for reuse.

It contains three standard licences available to public authorities. The first two are the Open Government Licence (OGL) and the Non-commercial Government Licence. Both allow reuse 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 OGL 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.

 Charged Licence

The third type of licence is the Charged Licence. This has been published by The National Archives in beta form. It can be used by public authorities that have reason to charge for the reuse of the dataset information they hold or produce.

The secretary of state for justice 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. The effect of the new Freedom of Information (Release of Datasets for Reuse) (Fees) Regulations 2013) is that where a public authority is charging a fee for reuse, then, so far as is reasonably practicable, it must calculate the charge according to the relevant accounting principles and a reasonable estimate of demand. Furthermore, the total fee cannot exceed the cost of collecting, producing, reproducing and disseminating the dataset, plus a reasonable return on investment.’

These considerations will mainly be relevant to public authorities that operate on a commercial basis in order to cover their costs. The regulations also require public authorities to, so far as reasonably practicable, establish standard fees for reuse.

If a requester considers that the public authority has not properly dealt with their request for a dataset or for reuse of the same, they should ask the authority to review its decision. If the requester is not satisfied with the outcome of the internal review, they may apply to the ICO for a decision under section 50 in the usual way. It will be interesting to see how many complaints are made about public authorities over charging for reuse licences.

 Duties of public authorities

According to the ICO, public authorities need to:

  • Think about the definition of a dataset: what information or categories of information do they have that fit the definition?
  • Be clear who owns the intellectual property rights in their datasets.
  • Ensure that the new text regarding datasets in the ICO’s model publication scheme and definition documents is inserted into their own publication schemes and guides to information.
  • 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.
  • Identify powers to charge for information. Charging for reuse 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?

The ICO also encourages FoI officers to learn a little more about copyright, the licensing 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 is crucial to make sure these two functions have an understanding that they need to work together. In the longer term, the ICO’s advice is to think about open data requirements when procuring new IT systems. Public authorities should implement ‘transparency by design’.

 Disclosure warning

Finally a word of caution when releasing information, especially datasets using spreadsheets. Sometimes spreadsheets contain a ‘pivot table’, which can neatly summarise the information, without revealing the underlying personal information the summary is based on. Pivot tables, both in Microsoft Excel and other spreadsheet programs, retain a copy of the source data used. This information is hidden from view, but is easily accessible. Public authorities are not always properly removing the underlying data before disclosing.

In August 2013, the ICO fined Islington council £70,000 for a breach of the Data Protection Act 1998, after personal details of over 2,000 residents were inadvertently released online in response to a FoI request. This revealed sensitive personal information relating to residents’ housing needs, including details of whether they had a history of mental illness or had been a victim of domestic abuse.

The breach occurred due to a lack of understanding of pivot tables. Islington council used the tables to show statistics on how housing had been allocated to residents, but failed to remove the source data, and so sensitive personal data about tenants was revealed.

The new FoI dataset provisions will mean more work for over-stretched FoI officers within public authorities. However, they also provide opportunities for greater scrutiny of the public sector and easier access to information, which can be also be used by the private sector for commercial purposes.

 Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk)

 

 

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