Freedom of Information Act Section 45 Code of Practice (Datasets)

Freedom of Information Act Section 45 Code of Practice (Datasets)

Yesterday the Ministry of Justice published its long-delayed Code of Practice (Datasets) in support of new dataset provisions in the Freedom of Information Act. The provisions themselves will now commence on 1 September 2013. There was also a Written Ministerial Statement.

In the simplest terms the new provisions require UK public authorities to provide datasets requested under FOI in a re-usable format and with a licence for re-use, where reasonably practicable. The Code of Practice is guidance for public authorities on how to implement the provisions.

I've blogged previously about the dataset provisions and why I think they are likely to be problematic both for supporters of open data and for FOI practitioners. You can also read a range of other views in the responses to a consultation that was launched last year on a draft version of the Code of Practice.

I have now read through the published Code of Practice in detail and compared it to the consultation draft. My interest is mainly in whether the provisions are likely to make it easier or harder to unlock publicly owned datasets for open re-use. I have not attempted a full analysis from a FOI point of view. (However my strong impression is that FOI practitioners who do not already have experience of data licensing will have a steep learning curve, regardless of their views on open data vs charging for re-use.)

In a nutshell my conclusion is that the final version of the Code of Practice (Datasets) is not only unhelpful but actively hostile to open data interests. It is impossible to reconcile with either support for open data in civil society or with the broader transparency agenda espoused by the Cabinet Office. Compared to the status quo under existing FOI (which is silent on licensing of data for re-use), the new provisions are likely to encourage more charging for public data -- and seem calculated to do so.

Chapter and verse is below. It's not completely clear at the moment how bad the effect will be, because the new Fees Regulations -- the Freedom of Information (Fees for Re-use of Datasets) Regulations 2013, due to commence alongside the dataset provisions -- have not yet materialised.

As a summary of the main issues, the Ministry of Justice has in the final version of the Code of Practice (Datasets):
removed the presumption that the Open Government Licence will apply in all but exceptional circumstances;

replaced a statement that public authorities may charge a fee for re-use in exceptional cases with advice that they have the power to charge and should consider doing so;

diluted or removed references to the Public Data Principles, the Five Star ranking system and the provision of metadata; and

warned about third-party intellectual property rights in a manner that may make public authorities wary of licensing discussions.

-- Owen Boswarva (@owenboswarva), 18/07/2013

Update: subsequent to the analysis below the accompanying Fees Regulations have now been published: The Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013. As anticipated they provide public authorities with a framework for charging for re-use of data, and do little to support the presumption that data should be released under the OGL. A key point is that the regs allow authorities to base their charges on a "reasonable" return on investment (ROI), rather than limiting charges to marginal cost.

-- Owen Boswarva (@owenboswarva), 09/08/2013

i. Introduction (p 5)

Draft Final

Neither the Act nor this Code require the creation of datasets for publication, nor do they require datasets to be updated if they would not otherwise be updated as part of the public authority's function. They are intended to increase publication of updated datasets which are already accessible and to make them available for re-use and, where possible, in a re-usable format. 3. Neither the Act nor this Code require the creation of datasets for publication, nor do they require datasets to be updated if they would not otherwise be updated as part of the public authority's function. The Act and Code are intended to increase publication of updated datasets which are already accessible and to make them available for re-use and, where reasonably practicable, in a re-usable format.

Comments:

These introductory remarks are essentially unchanged from the consultation draft, but (to set the scene) it's worth comparing them to the version argued for by the Open Data Institute:
"The Act and the Code are intended to increase regular publication of up-to-date datasets, in a re-usable format, and licensed to encourage their reuse. This Code requires public authorities to publish data that they manage in a reusable format and as open data. The Act does not require datasets to be maintained or updated if they would not otherwise be updated as part of the public authority's function."
In other words, MOJ has rejected the opportunity to include these three elements in the Code of Practice: explicit support for open public data, promotion of regularity in publication of public data, and the notion that the licensing approach should actually encourage re-use of public data.

ii. Scope (pp 6-7)

Draft Final

The first part of the definition (subsection (5)(a)) means that the datasets caught by the Act are those datasets which a public authority has originally obtained or recorded for the purposes of providing services or carrying out its functions, including decision-taking. The purpose of releasing these datasets is to increase transparency and accountability of a public authority's decisions and functions. 8. The first part of the definition (subsection (5)(a)) means that the datasets caught by the Act are those datasets which a public authority has originally obtained or recorded for the purposes of providing services or carrying out its functions, including decision-making.

Where information requested meets the definition of a dataset, the authority will be under a duty to provide the dataset in a re-usable format (see below), where reasonably practical. However, the 're-use duty' and relevant provisions relating to licensing in this Code do not apply to all datasets. The provisions that relate to licensing and the re-use of datasets apply only to datasets that are, or contain, a 'relevant copyright work'. The definition excludes datasets subject to Crown copyright and Parliamentary copyright (see section 11A (8) of the Act). 13. Where information requested meets the definition of a dataset, the authority will be under a duty to provide the dataset in a re-usable format (see below), where reasonably practicable. However, the separate duty, to make their dataset available for re-use, and the relevant provisions relating to licensing in this Code do not apply to all datasets. Separate arrangements are in place to make available spatial datasets which fall under the INSPIRE Regulations. The provisions that relate to licensing and the re-use of datasets apply only to datasets that are, or contain, a 'relevant copyright work'. The definition excludes datasets subject to Crown copyright and Parliamentary copyright (see section 11A (8) of the Act).

Comments:

There are a couple of reasons why the reference to "transparency and accountability" might have been removed. Normally why the applicant wants access to information is irrelevant to the handling of a FOI request, so it's immaterial whether releasing a dataset will support transparency or accountability. On the other hand, how an applicant intends to re-use a dataset might well be relevant to agreeing a licence for that re-use. Including a blanket presumption that release of datasets will increase transparency and accountability militates in favour of an open data approach to licensing, because charging isn't transparent. We can give MOJ the benefit of the doubt on this edit, but it really does highlight the underlying incoherence of trying to add re-use of information to legislation that's built around access to information.

The reference to "separate arrangements" for spatial datasets that fall under the INSPIRE Regulations is new and, without a more detail explanation, is likely to confuse FOI practitioners. Many, possibly most, INSPIRE datasets fall under the Environmental Information Regulations and are therefore outside FOI. However I don't think that's true for all of them, and the INSPIRE Regulations do not really contain re-use provisions equivalent to those now being added to FOI.

iv. Standards applicable to public authorities in connection with the disclosure of a dataset (p 9)

Draft Final

When releasing datasets public authorities should as far as possible adhere to the Public Data Principles (http://www.data.gov.uk/library/public-data-principles). These principles are compulsory for central government departments and recommended for the wider public sector. Authorities may wish to publish or signpost to these principles on their website. 20. When releasing datasets public authorities should as far as possible adhere to the Public Data Principles (http://www.data.gov.uk/library/public-data-principles). These principles are expected good practice for central government departments and recommended for the wider public sector. Authorities may wish to publish or signpost to these principles on their website.

When releasing a dataset, authorities should apply the Sir Tim Berners-Lee Five Star ranking system (http://www.w3.org/DesignIssues/LinkedData.html). Whilst not a mandatory requirement this will help applicants in assessing the suitability for re-use of a dataset they have received.

Published datasets should, so long as there are no good reasons for it not to be provided, be accompanied by a sufficient amount of metadata and contextual information about how and why the dataset was compiled or created in order that users may fully comprehend the dataset they are dealing with and as part of compliance with Section 16 (duty to advise and assist) of the Act. 21. It is recommended good practice that, so long as there are no good reasons for it not to be provided, that datasets will be accompanied by sufficient metadata and contextual information about how and why the dataset was compiled or created in order that users may fully comprehend the dataset they are dealing with.

Comments:

The Public Data Principles, which articulate a strong open-by-default approach to public sector information, are now given as "expected good practice" instead of "compulsory" for central government departments. The recommendation to apply the Five Star ranking system for linked open data has been dropped. The advice to provide metadata and contextual information has been watered down and disassociated from the "duty to advise and assist" set out in Section 16 of the FOI Act.

These are all elements that, in the consultation draft, reflected a stronger open data influence.

v. Giving permission for datasets to be re-used (p 10)

Draft Final

The public authority should ascertain whether copyright and/or database rights in the dataset are owned solely by the authority, that there is no other copyright owner with rights in the dataset. Nothing in the Act removes any rights of third parties in that dataset. If a public authority grants a licence to re-use a dataset where it is subject to intellectual property owned by a third party, the grant may constitute an infringement of the third party's rights. Consideration should also be given to the extent to which it is appropriate to disclose such information, in particular with reference to sections 41 and 43(2) of the Act. 24. The public authority should ascertain whether copyright and/or database rights ('intellectual property') in the dataset are owned solely by the authority or whether there is a third party interest. Nothing in the Act overrides the rights of any third parties who may own intellectual property contained in the datasets. Upon receiving the FOI request consideration should be given to the extent to which such information is exempt from disclosure under sections 41 and 43(2) of the Act. If a public authority grants a licence to re-use a dataset or part of a dataset containing third party intellectual property without the owner's permission it may constitute an infringement of the third party's rights.

Where the copyright or database right in a dataset is owned wholly or partly by a third party, a public authority can only give permission for re-use of the dataset if it has been authorised to do so by the relevant third party rights holder. The 're-use duty' only applies where the public authority is the only owner of the copyright or database right. If the authority does not have the legal authority to make it available for re-use it should make it clear to the applicant when releasing the dataset that this is the case. Even when the public authority is not able to license re-use, it must still provide the dataset in a re-usable format, so far as reasonably practicable, if the applicant has asked for an electronic version. 25. Where there is a third party interest under the terms of the Act any re-use licence must permit re-use only of those parts of the dataset that the public authority owns. However, if possible and subject to any confidentiality requirements, the public authority should identify who owns the remainder of the rights by the inclusion of an acknowledgment. In some cases the public authority may be able to obtain the third party's permission to grant the re-use of the third party intellectual property outside the Act; it is not a requirement under the Act. If in doubt it is advisable to seek legal advice.

Authorities should consider how best to streamline the process of ascertaining the ownership of copyright and database rights in the dataset, and where relevant obtaining authority to license the dataset, ideally before any requests arrive. Identification and acknowledgement of third party rights is good practice and may prevent unnecessary applications and delay in responding to requests.

Comments:

There are several things going on here. The additional warnings ("may constitute an infringement", "advisable to seek legal advice") are likely to alarm any FOI practitioner who is not already comfortable with licensing issues. If a public authority is risk-averse they may want to seek legal advice on any request to re-use a dataset that they haven't released previously -- and (depending on what's in the new Fees Regulations) they may be able to pass the cost of that advice on to the applicant. Removing the recommendation to "streamline" the process by clarifying such issues beforehand means that those costs are more likely to be attached to individual applications for re-use.

MOJ is also promoting an assumption that third-party interests in the data are necessarily a barrier. For example the advice does not contemplate the idea that the third-party material might itself be open data that the public authority could sub-license to the applicant, or that it might be Ordnance Survey data that has been approved for onward re-use under the PSMA exemption process.

Notably MOJ has also removed the expectation that the public authority will provide the data in a re-usable format even if it is not able to license re-use. This has implications particularly for journalists; existing rights of access under FOI are usually sufficient for reporting purposes even without a re-use licence, but journalists still want to be able to manipulate the data.

v. Licensing (p 10)

Draft Final

If the dataset that is being provided, or any part of it, is a relevant copyright work, the public authority must make that work available for re-use in accordance with the terms of one of the specified licences in this Code. Authorities are encouraged to use the UK Open Government Licence as most datasets can be re-used without a charge. It is envisaged that the other licences will only be used in exceptional circumstances. 26. If the dataset that is being provided, or any part of it, is a relevant copyright work owned solely by the public authority, the public authority must make that work available for re-use in accordance with the terms of one of the licences specified in the following paragraphs. The starting point is that public authorities are encouraged to use the Open Government Licence for datasets which can be re-used without charge.

UK Open Government Licence: The Open Government Licence is the main licensing model for the UK Government. Established under the UK Government Licensing Framework, the model encourages the use and re-use of a wide range of public sector information. The Open Government Licence is a non-transactional open licence which enables use and re-use with virtually no restrictions. It permits use and re-use, including for commercial purposes, at no cost to the user/re-user. The Licence can be easily used by public authorities, for example, it only requires public authorities to link to the Open Government Licence which is hosted on The National Archives website (http://www.nationalarchives.gov.uk/doc/open-government-licence). 27. UK Open Government Licence: The Open Government Licence is the default licensing model for most Crown copyright information produced by the UK Government and supplied without charge. It is also widely used across the public sector. It is a non-transactional open licence which enables use and re-use with virtually no restrictions. It is applicable when use and re-use, including for commercial purposes, is at no cost to the user/re-user. Established as part of a wider UK Government Licensing Framework, the model encourages the use and re-use of a wide range of public sector information. The Open Government Licence can easily be used by public authorities, for example, it only requires public authorities to link to the Open Government Licence which is hosted on The National Archives website (http://www.nationalarchives.gov.uk/doc/open-government-licence).

Non-Commercial Government Licence: It is recognised, however, that the Open Government Licence will not be appropriate in all cases, for example, in circumstances where information may only be used for non-commercial purposes. The Non-Commercial Government Licence was developed to meet those situations. As with the Open Government Licence, public authorities can link to the Non-Commercial Government Licence on The National Archives website (http://www.nationalarchives.gov.uk/doc/non-commercial-government-licence). Non-Commercial Government Licence: It is recognised that the Open Government Licence will not be appropriate in all cases, for example, in circumstances where information may only be used for non-commercial purposes. The Non-Commercial Government Licence was developed to cover that situation. As with the Open Government Licence, public authorities can link to the Non-Commercial Government Licence on The National Archives website.

Charged Licence (Beta): If re-use for commercial purposes which involves payment of a fee and/or royalties by the re-user is required, a transactional licence may be used. The licence uses standard licensing terms and forms part of the UK Government Licensing Framework and is available on the National Archives website (http://www.nationalarchives.gov.uk/information-management/government-licensing/charged-licence.htm). Charged Licence: Where a public authority charges a fee for the re-use of a dataset, it must do so in accordance with the Charged Licence. The licence consists of standard licensing terms and, like the above licences, forms part of the UK Government Licensing Framework. It can be accessed on The National Archives website (http://www.nationalarchives.gov.uk/information-management/government-licensing/charged-licence.htm).

Comments:

This is the change that's most hostile to open data: MOJ has removed the presumption that the Open Government Licence will apply except in "exceptional circumstances".

The OGL is now simply the "starting point" for datasets "which can be re-used without charge". This gives greater parity to the other two licences in the UK Government Licensing Framework (the little-used Non-Commercial Government Licence and the newly devised Charged Licence). Basically the introduction to licensing options has been rejigged in a way that encourages public authorities to first decide whether to charge, then to choose the appropriate licence, rather than start with the attitude that they should not charge for re-use of public data without good reason.

vi. Fees for making a relevant copyright work available for re-use (pp 12-13)

Draft Final

In exceptional cases a public authority that is the owner of a copyright work in a dataset being released may exercise the power to charge to charge a fee for re-use of that dataset. 34. A public authority that is the owner of a copyright work in a dataset being released has the power to charge a fee for re-use of that dataset.

Section 11B of the Act provides that the Secretary of State may make regulations about the fees for making relevant copyright works available for re-use; public authorities can charge a fee, in accordance with any regulations under section 11B, for making that copyright work available for re-use. Alternatively, if a public authority is entitled to charge a fee under any other legislation for the re-use of a relevant copyright work, then it may do so on that basis instead. 35. Section 11B of the Act provides that the Secretary of State may make regulations about the fees for making relevant copyright works available for re-use. The regulations may prescribe cases in which fees may, or may not, be charged. The new Freedom of Information (Fees for Re-use of Datasets) Regulations 2013 provide that public authorities may charge a fee in accordance with those regulations, unless it already has another applicable statutory power to charge. If a public authority wishes to charge a fee and is already entitled to do so under any other applicable legislation for the re-use of the relevant copyright work, then it must do so on that other statutory basis instead of these regulations. However, it is important to note that where datasets are being released under the Act, the power to charge for re-use under the Re-use of Public Sector Information Regulations 2005 does not currently apply. Instead the public authority should first consider if it has any other statutory power which applies (and, if so, it should charge under that basis); if it does not have another statutory power, it should then consider charging under the regulations made under section 11B.

Comments:

Instead of telling public authorities that they "may" exercise the power to charge for re-use in "exceptional" cases, MOJ is now flatly telling public authorities that they have the power to charge and that they "should" consider using it.

MOJ has clarified that where there is another applicable statutory power to charge it takes precedence over the new FOI provisions; the public authority cannot pick and choose. However there is additional language that encourages the public authority to assertively consider both whether it has any other power to charge and then whether it wants to charge under the new powers.

The RPSI presumption that most government information should be made available for re-use at marginal cost, unless the public authority can make a business case for additional charges, has gone out the window.

Draft	Final
When releasing datasets public authorities should as far as possible adhere to the Public Data Principles (http://www.data.gov.uk/library/public-data-principles). These principles are compulsory for central government departments and recommended for the wider public sector. Authorities may wish to publish or signpost to these principles on their website.	20. When releasing datasets public authorities should as far as possible adhere to the Public Data Principles (http://www.data.gov.uk/library/public-data-principles). These principles are expected good practice for central government departments and recommended for the wider public sector. Authorities may wish to publish or signpost to these principles on their website.
When releasing a dataset, authorities should apply the Sir Tim Berners-Lee Five Star ranking system (http://www.w3.org/DesignIssues/LinkedData.html). Whilst not a mandatory requirement this will help applicants in assessing the suitability for re-use of a dataset they have received.
Published datasets should, so long as there are no good reasons for it not to be provided, be accompanied by a sufficient amount of metadata and contextual information about how and why the dataset was compiled or created in order that users may fully comprehend the dataset they are dealing with and as part of compliance with Section 16 (duty to advise and assist) of the Act.	21. It is recommended good practice that, so long as there are no good reasons for it not to be provided, that datasets will be accompanied by sufficient metadata and contextual information about how and why the dataset was compiled or created in order that users may fully comprehend the dataset they are dealing with.

Draft	Final
The public authority should ascertain whether copyright and/or database rights in the dataset are owned solely by the authority, that there is no other copyright owner with rights in the dataset. Nothing in the Act removes any rights of third parties in that dataset. If a public authority grants a licence to re-use a dataset where it is subject to intellectual property owned by a third party, the grant may constitute an infringement of the third party's rights. Consideration should also be given to the extent to which it is appropriate to disclose such information, in particular with reference to sections 41 and 43(2) of the Act.	24. The public authority should ascertain whether copyright and/or database rights ('intellectual property') in the dataset are owned solely by the authority or whether there is a third party interest. Nothing in the Act overrides the rights of any third parties who may own intellectual property contained in the datasets. Upon receiving the FOI request consideration should be given to the extent to which such information is exempt from disclosure under sections 41 and 43(2) of the Act. If a public authority grants a licence to re-use a dataset or part of a dataset containing third party intellectual property without the owner's permission it may constitute an infringement of the third party's rights.
Where the copyright or database right in a dataset is owned wholly or partly by a third party, a public authority can only give permission for re-use of the dataset if it has been authorised to do so by the relevant third party rights holder. The 're-use duty' only applies where the public authority is the only owner of the copyright or database right. If the authority does not have the legal authority to make it available for re-use it should make it clear to the applicant when releasing the dataset that this is the case. Even when the public authority is not able to license re-use, it must still provide the dataset in a re-usable format, so far as reasonably practicable, if the applicant has asked for an electronic version.	25. Where there is a third party interest under the terms of the Act any re-use licence must permit re-use only of those parts of the dataset that the public authority owns. However, if possible and subject to any confidentiality requirements, the public authority should identify who owns the remainder of the rights by the inclusion of an acknowledgment. In some cases the public authority may be able to obtain the third party's permission to grant the re-use of the third party intellectual property outside the Act; it is not a requirement under the Act. If in doubt it is advisable to seek legal advice.
Authorities should consider how best to streamline the process of ascertaining the ownership of copyright and database rights in the dataset, and where relevant obtaining authority to license the dataset, ideally before any requests arrive. Identification and acknowledgement of third party rights is good practice and may prevent unnecessary applications and delay in responding to requests.

Draft	Final
If the dataset that is being provided, or any part of it, is a relevant copyright work, the public authority must make that work available for re-use in accordance with the terms of one of the specified licences in this Code. Authorities are encouraged to use the UK Open Government Licence as most datasets can be re-used without a charge. It is envisaged that the other licences will only be used in exceptional circumstances.	26. If the dataset that is being provided, or any part of it, is a relevant copyright work owned solely by the public authority, the public authority must make that work available for re-use in accordance with the terms of one of the licences specified in the following paragraphs. The starting point is that public authorities are encouraged to use the Open Government Licence for datasets which can be re-used without charge.
UK Open Government Licence: The Open Government Licence is the main licensing model for the UK Government. Established under the UK Government Licensing Framework, the model encourages the use and re-use of a wide range of public sector information. The Open Government Licence is a non-transactional open licence which enables use and re-use with virtually no restrictions. It permits use and re-use, including for commercial purposes, at no cost to the user/re-user. The Licence can be easily used by public authorities, for example, it only requires public authorities to link to the Open Government Licence which is hosted on The National Archives website (http://www.nationalarchives.gov.uk/doc/open-government-licence).	27. UK Open Government Licence: The Open Government Licence is the default licensing model for most Crown copyright information produced by the UK Government and supplied without charge. It is also widely used across the public sector. It is a non-transactional open licence which enables use and re-use with virtually no restrictions. It is applicable when use and re-use, including for commercial purposes, is at no cost to the user/re-user. Established as part of a wider UK Government Licensing Framework, the model encourages the use and re-use of a wide range of public sector information. The Open Government Licence can easily be used by public authorities, for example, it only requires public authorities to link to the Open Government Licence which is hosted on The National Archives website (http://www.nationalarchives.gov.uk/doc/open-government-licence).
Non-Commercial Government Licence: It is recognised, however, that the Open Government Licence will not be appropriate in all cases, for example, in circumstances where information may only be used for non-commercial purposes. The Non-Commercial Government Licence was developed to meet those situations. As with the Open Government Licence, public authorities can link to the Non-Commercial Government Licence on The National Archives website (http://www.nationalarchives.gov.uk/doc/non-commercial-government-licence).	Non-Commercial Government Licence: It is recognised that the Open Government Licence will not be appropriate in all cases, for example, in circumstances where information may only be used for non-commercial purposes. The Non-Commercial Government Licence was developed to cover that situation. As with the Open Government Licence, public authorities can link to the Non-Commercial Government Licence on The National Archives website.
Charged Licence (Beta): If re-use for commercial purposes which involves payment of a fee and/or royalties by the re-user is required, a transactional licence may be used. The licence uses standard licensing terms and forms part of the UK Government Licensing Framework and is available on the National Archives website (http://www.nationalarchives.gov.uk/information-management/government-licensing/charged-licence.htm).	Charged Licence: Where a public authority charges a fee for the re-use of a dataset, it must do so in accordance with the Charged Licence. The licence consists of standard licensing terms and, like the above licences, forms part of the UK Government Licensing Framework. It can be accessed on The National Archives website (http://www.nationalarchives.gov.uk/information-management/government-licensing/charged-licence.htm).