Copy of useful briefing from LGiU about recent legislation effecting public service info. Thank you LGiU
Since 2005, how public bodies provide access to their information and data and specifically the extent to which it can be re-used by others has been governed by regulation across the European Union designed to remove obstacles to the re-use of public sector information.
New regulations which came into force in July this year will make obtaining information for re-use easier and bring the cultural sector, including libraries and museums, into scope.
Essentially the regime is moving from one where public bodies were encouraged but not required to make information available for re-use to one where accessible information which is owned by the public sector body – with some exceptions – must be made available for re-use.
This briefing will be of particular interest to officers with responsibilities for copyright and licensing, information/data production and protection, IT and web, communications and press.
Briefing in Full
The purpose of the briefing is to explain the statutory requirements on local authorities and other public bodies to allow information which it holds to be re-used by others for other purposes.
Since 2005, how public bodies provide access to their information and data and specifically the extent to which it can be reused has been governed by regulation originally set down in a European Directive (2003/98/EC) and then transposed into domestic law through The Re-use of Public Sector Information Regulations 2005. That legislative framework has recently been the subject of significant change. The original regulations did not oblige public sector bodies to permit re-use of its information. Instead it removed obstacles by setting the rules public bodies must follow if they chose to permit re-use. The new European Directive (2013/37/EU) which has been transposed into UK domestic law from 18 July 2015 by The Re-use of Public Sector Information Regulations 2015 (“2015 regulations” or “the regulations”), subject to certain circumstances, goes further and increases the rights of re-users by:
- Making re-use mandatory for most public bodies, unless specifically excluded or restricted.
- Extending the scope of the information available for re-use to not just that which is accessible but anything produced held or disseminated within a public body’s “public task”;
- Setting a default charging mechanism of marginal cost recovery in most circumstances;
- Bringing public sector museums, libraries and archives within the regime for the first time; and
- Introducing a process for complaints that would provide for binding decisions.
The National Archives is the UK policy lead on public sector information, and the legislative framework is UK-wide.
This briefing seeks to describe the whole legislative framework as is, rather than simply the changes made by the 2015 Regulations. However the diagram below produced by the National Archives highlights the main differences with the previous requirements under the 2005 regulations.
This briefing is also meant as an introduction and not a comprehensive guide on these statutory requirements, for that the National Archives’ has published separate guidance for public sector bodies and for cultural institutions. They have also produced several more supporting documents for example, on producing information asset lists and on the procedures for investigating complaint; these and the many others can be found here.
What is reuse of public sector information?
The re-use of public sector information means using public sector information for a purpose different from the one for which it was originally produced, held or disseminated. The government sees that public sector information constitutes a vast, diverse and valuable pool of resources enabling the creation of new products and services and thereby stimulating economic activity and helping to make public functions more efficient and transparent.
Which public bodies are covered by the regulations?
Most public sector bodies across central and local government, the police force and the National Health Service are covered by the regulations. Specifically this includes county councils, districts, London boroughs, parish councils, fire and rescue authorities, national park authorities, police and crime commissioners, as well as the Council of the Isle of Scilly, the City of London council and the Greater London Authority.
The cultural sector and specifically public sector museums, libraries and archives have been brought within the regime for the first time.
However, the regulations explicitly do not apply to public broadcasters, or to educational establishments including schools and cultural establishments which are not libraries, museums and archives.
(This table is reproduced from inNational Archives guidance publication (PDF document))
What information is covered by the regulations?
Any information in whatever medium – including print, digital or electronic and sound recording – produced, held or disseminated by a public sector body is considered public sector information and potentially within scope of the regulations. This includes a range of corporate information such as reports and financial data, mapping, codes of practice, public records, statistics, local planning and tourist information and artefacts.
Public sector information within the “public task” of the public sector body and is accessible must be made available for re-use unless the information is otherwise restricted or excluded (see below). Accessible could mean that the information: has been published; it is information already being re-used by another party; or the applicant has gained access to that information through access legislation like the Freedom of Information Act.
Libraries, museums and archives are not required to make information available to re-use but may choose to do so. This is unless the information has already been made available for re-use including by the public body itself or its commercial trading arm, then they must make this information available for re-use on the same terms. See section below.
The regulations do not consider that all data held by public bodies to be in scope, providing a number of exemptions including where information:
- Falls outside the scope of the “public task” of the public sector body;
- Information in which the intellectual property is owned by a different organisation that is not in scope of the regulations;
- Parts of documents containing only logos, crests and insignia;
- Information that covers personal data protected by the Data Protection Act 1998; and
- Information exempt from access legislation including the Freedom of Information Act 2000, for example on grounds of national security, defence or public security and statistical or commercial confidentiality.
Information is also out of scope if it is transferred within a public body or to another public body and that information is required to carry out its ‘public task’. Where a public body shares research information with a research institute that sharing is not considered re-use and is therefore out of scope.
The flowchart, below, published by the National Archives, illustrates the scope of the regulations:
What is expected of public bodies?
What the regulations essentially mean is that accessible information which is produced, held or disseminated by a public sector body, and for which it owns the copyright, must be made available for re-use; that is unless it is otherwise restricted or excluded. In the case of libraries, museums and archives they may release that information for re-use.
Under the Regulations, public sector bodies must maintain and publish a list of information available for re-use with relevant metadata, and ensure where possible that applicants are able to search the list by electronic means and provide details of their complaints procedures.
Upon receipt of a re-use request, public sector bodies must respond “promptly” and within twenty working days at the latest. Where documents are extensive or the request raises complex issues this may take longer. Documents must then be made available to applicants “in the form and language in which it is held on the date of the request” and where possible in an machine-readable format, together with its metadata, complying insofar as possible with ‘open standards’ and by electronic means wherever possible.
Where appropriate, conditions may be imposed upon re-use through a licence, but only insofar as those conditions do not “unnecessarily restrict” competition or the way in which a document can be re-used. TheOpen Government Licence (OGL) is the preferred policy option; however it is not mandated by the regulations. (Where information is made available for re-use under the OGL a request is not necessary, but the re-user must meet licence conditions). However, the regulations do prohibit exclusive arrangements except where exclusivity is necessary for the provision of a service in the public interest or where re-use is in relation to the digitisation of cultural resources.
The default is to make this information available at marginal cost; where this information is provided online or in digital form, the National Archives’ advice is that the marginal cost will usually be nil. Where a charge is made, public sector bodies must publish a clear and equitable pricing structure which is readily available to applicants. Greater fees can be imposed by libraries, museums and archives or if public bodies are “required to generate revenue to cover a substantial part of its costs relating to the performance of its public task”. In such cases public bodies may charge to recover their costs plus a reasonable return on their investment. And cultural bodies may do so over the appropriate accounting period.
An internal complaints procedure must be established to manage any issues with requests that might arise; see below.
The relationship between ‘access’ to, and ‘reuse’ of information
While the re-use regulations provide a framework for obtaining permission to re-use public sector information, they do not provide a right to access information that is not readily accessible (i.e. it has been published in one form or other or has been provided to the applicant). Nor does having access to information give an automatic right to re-use it except where information has been provided under the Open Government Licence.
The advice from the National Archive is that re-use requests for information that have not already been provided, or it is not otherwise assessible, should be handled as an access request (under the relevant legislation) and only when it has been provided will it become eligible for re-use.
Libraries, museums and archives
The 2015 regulations bring libraries, museums and archives within the regime for the first time. That includes university libraries. However, there are a number of notable differences:
- These bodies are not required to permit re-use, but may do so.
- While they retain the right to decline a request, these cultural bodies cannot do so if the information has already made available for re-use (even by themselves including by a commercial trading arm).
- They can require terms and conditions of re-use if the end-use is deemed to be unsuitable (e.g. limit use to non-commercial research re-use).
- Such decisions (on refusals, and conditions of use) may not be discriminatory and all decisions can be subject to challenge by the applicant.
- They are not subject to the marginal cost default and so may charge to cover the cost of collection, production, reproduction, preservation and right clearance together with a reasonable return on investment.
- Exclusive licences are permitted for digitising cultural resources as well as when it is in the public interest to do so, but the regulations provide for time limits and the agreements must be published.
There is no distinction between works of art, artefacts and other information in the 2015 Regulations.
The transfer of local government archival information to a cultural sector archive (such as the local authority’s archive) is not considered re-use as receiving archival transfers is part of the archive’s “public task”.
The new regulations require public bodies to establish an internal complaint procedure and to deal with such complaints within a “reasonable time” with National Archives’ guidance advising this should be within 20 working days (i.e. the same statutory period for dealing with applications).
If unresolved, the complainant can escalate their complaint to the Information Commissioner’s Office (ICO) following the existing statutory procedures which apply to freedom of information requests with a subsequent appeal to the First-tier Tribunal in specific circumstances.
There is a different (to the FOI) appeals procedure where the compliant is against the basis on which a charge has been levied for permitting re-use. The ICO will consider the initial complaint and but will only be able to make a nonbinding recommendation. If the public sector body decides not to follow that recommendation it must notify the complainant and give its reasons and it is open to the complaint to seek a binding decision from the First-tier Tribunal. This different approach on charging issues reflects that the government considers that only a judicial authority can make a binding decision affecting the funding of a public sector body.
Freedom of Information Act 2000
Public authorities within the meaning of the Freedom of Information Act 2000 have to provide dataset of factual management information in a re-usable form, and with a licence permitting re-use when obliged to disclose information under the 2000 Act. This was provided for in changes made to the 2000 Act in 2012.
The new re-use regulations go further than this. So to facilitate this and ensure that the two pieces of legislation work together, the new regulations consolidate these requirements. This essentially means that where a public body and a dataset is covered by the 2015 regulations, then it is those regulations and not the FOI Act which will govern the re-use of dataset information and their entry on publication schemes. For other datasets or public authorities out of the scope of the 2015 regulations, like educational establishments, but which are covered by the FOI Act there is no change.
Data Protection Act
The 2015 Regulations do not reduce the protections of the Data Protection Act 1998 (DPA). They do not apply to any personal data that is not available under access legislation nor to personal data that may be accessible but cannot be re-used due to data protection.
Personal data may be accessible (for example, in a public register or by a request under access legislation) but that does not automatically make it re-usable. Any subsequent use or re-use of any personal data must be lawful under the DPA, which controls how personal information is used.
The public sector body is responsible for complying with the DPA when making information available for re-use. After permission to re-use has been given, the re-user is responsible for complying with the DPA.
While the government has relaxed copyright assertion, and has encouraged the wider public sector to do the same, to facilitate re-use of public sector information the 2015 regulations do not change copyright law. This is particular relevant where intellectual property of documents or material within is owned by a third party.
Copyright in re-used information does not grant copyright in the original information (to the re-user) even if that information is in the public domain or otherwise out of copyright.
The National Archives tell us that for most public bodies, particularly those which already make their information available for re-use under the Open Government Licence, the amended Directive and the new regulations will mean business as usual. Or will it? We are moving from a regime where public bodies were not required to make information available for re-use to a mandatory one. And, significantly for local authorities, the regime now also covers museums, libraries and archives – though with some significant differences. So it is to be seen whether or not this is ‘business as usual’.
Going forward the key steps that each local authority can take to ensure compliance, include:
- Creating and publishing a statement of re-use which describes the processes for making requests, details of any charges which apply, together with the procedures for making a complaint, helping re-users know up front what material is offer for re-use and any conditions which might apply.
- Developing an asset list register detailing “all the main documents available for re-use with relevant meta-data” aligned to the “public task” of the council.
- Ensuring that records of intellectual property are up-to-date and include contact details of third-party rights holders where known (while still complying with the Data Protection Act).
- Consider how information and metadata is made available in an open and machine-readable.
- Consider on what basis information will be offered for re-use, noting that the conditions may not be discriminatory and restrict competition and must not restrict the way in which a document can be used (save cultural bodies) this may point to using either the Open Government Licence or an alternative like the Non-Commercial Government Licence.
- Work out a clear and equitable pricing structure and publishing these details up front; in the majority of cases as per the regulations information should be offered at marginal cost.
- Creating or updating (i.e. you might build your FOI process) internal complaints processes to manage any issues with requests for re-use.
- Consider how the council’s process for dealing with FOI and other access requests can work in harmony with requests for the re-use of information.
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