Post: 3 October 2014
National Archives is consulting on UK implementation of the revised EU Directive on the reuse of public sector information (the ‘PSI Directive’). This is a process called “transposition”, and will take the form of new PSI regulations to replace the existing Re-use of Public Sector Information Regulations 2005.
The PSI regulations are of great relevance to the future availability of open data in the UK, because they set out the rules under which some public bodies are allowed to charge for re-use of public data assets.
The Open Data Institute has published a draft submission to the consultation, in which it raises a number of concerns (discussed below).
The NA consultation is open until 7 October if you want to submit your own response.
Although the consultation is being run by National Archives, I first want to place it within the wider context of Government policy on information rights.
Where’s OPSI?
When the original PSI regulations were introduced the UK body responsible for information policy was the Office of Public Sector Information. OPSI was then part of the Cabinet Office reporting structure.
In 2006 OPSI was folded into National Archives, which is an executive agency of the Ministry of Justice. At the end of 2010 the current Government shut down the OPSI website.
Search on GOV.UK today and you will be hard-pressed to find much evidence that OPSI still exists. OPSI is also difficult to recognise on the National Archives site itself. As ODI says in its submission, "the identity and visibility of OPSI has been obscured.“
This matters because under the PSI regulations OPSI is responsible for handling public complaints about barriers to re-use of public sector information. If potential complainants can’t figure out who they should complain to, that undermines the credibility of the regulatory process.
MoJ and information rights
The wider point is that, although Cabinet Office leads on the Government's transparency agenda (which includes open data), practical authority over information policy and information rights now sits with MoJ.
In addition to its oversight of National Archives and OPSI, MoJ funds the Information Commissioner’s Office (ICO), which handles complaints about freedom of information and data protection.
As a consequence of these separate policy streams, there is a noticeable disconnect between Cabinet Office’s rhetoric in favour of open data and MoJ’s legislative approach to public sector information.
UK negotiating position on the revised PSI Directive
In December 2011 the European Commission launched an Open Data Strategy for Europe, along with the original proposals for a revised PSI Directive. Those proposals included new measures intended to strongly advance the open data agenda.
Of primary interest: the Commission proposed to explicitly limit charges for re-use of PSI to recovery of marginal costs incurred for reproduction and dissemination (other than in exceptional cases).
However those proposals were subsequently eviscerated in committee, based on amendments put forward by the UK.
The UK amendments to the Commission proposals created a broad exception to marginal cost pricing, for libraries, museums and archives, and for "public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks”. (See in particular Amendments 35, 78, 84 and 92. Sajjad Karim is a British MEP.)
According to the final text of the revised PSI Directive, those public bodies will be allowed to charge fees to recover not only the marginal costs of reproduction and dissemination, but also the cost of collection and production “together with a reasonable return on investment”.
In other words those public bodies will be allowed to recover the costs of creating information for its core purpose (the delivery of a public task), and not just additional costs related to re-use or production of added value.
The UK amendments are similar to the wording in the existing PSI regulations, i.e. they operate to reverse proposals from the Commission that would have put tighter constraints on charging and bolstered the open data agenda.
The UK’s negotiating position was in direct opposition to the basic principle underlying open public data, i.e. the argument that if government already needs to fund creation of the information then re-use for other purposes should be free (or charged at the marginal cost of reproduction).
There is a more detailed explanation of the UK’s negotiating position, in a March 2013 letter to the European Scrutiny Committee from MoJ minister Helen Grant MP.
It is clear from that letter that the UK Government was keen to protect the commercial interests of its data-rich trading funds (Ordnance Survey, Met Office, et al). However in my view the exceptions to marginal cost pricing in the final PSI Directive are sufficiently broad that other public bodies could take advantage of them quite easily.
Meanwhile …
MoJ has until July 2015 to enact regulations that transpose the revised PSI Directive into UK law, and this process is the subject of the current consultation.
However, in the meantime, MoJ has introduced amendments to the Freedom of Information Act that also deal with licensing and charging for re-use of public information. I’ve written previously about those amendments and why I think they are hostile to open data.
Of particular interest are the accompanying Fees Regulations, which contain some familiar language. Public authorities may charge fees for re-use, to recover:
(a) the cost of collection, production, reproduction and dissemination of the relevant copyright work, and
(b) a reasonable return on investment.
The Fees Regulations seem to go further than the revised PSI Directive, because they apply to all public authorities rather than just those that are actually required to generate revenue. There could even be potential for a legal challenge here: arguably the Fees Regulations constitute “gold-plating” to UK transposition of the revised PSI Directive. (The MoJ consultation notes that there “may be a need” for further amendments to FOI.)
Does the current National Archives consultation matter?
Given that the consultation is about transposition of amendments already agreed during negotiations in Europe, the scope to influence changes to the proposals is quite narrow. It would have been more meaningful if MoJ had consulted on formulation of the UK negotiating position, back in 2013.
There are five questions in the consultation, and only one of those relates to charging. National Archives has not released a draft of the new PSI regulations, so there is a lack of detail. Some of the background work in the impact assessment is interesting. However the consultation seems to be only a token effort to seek public views on the general approach to selected parts of the process.
Comments on the Open Data Institute’s draft submission: Redress
I agree with many of the concerns raised in the ODI draft submission. However on the question of the redress mechanism I tend to side with the Government proposals.
The Government proposes to retain OPSI as the investigative body for PSI complaints, with referral to a First-tier Tribunal (likely the Information Rights Tribunal) for a legally binding decision.
ODI would prefer that, rather than providing for referral to a First-tier Tribunal, the Government should empower ICO to both investigate complaints and to make legally binding decisions.
I cannot see how the ODI’s approach would serve the interests of complainants. Not only does it take away the recourse to the courts offered by the Government proposals, it removes the appeal stage (fulfilled by APPSI in the current process) entirely.
ODI seems to think it is proposing that PSI complaints should be handled in the same way as FOI complaints. But ICO’s decisions on FOI (and DPA etc.) can be appealed to the FTT (and upwards). ICO’s decisions are binding but not necessarily final, and it is not unusual for the FTT to rule against ICO. There is no reason at all to suppose ICO would be less fallible in making decisions on PSI complaints.
Removing the recourse to appeal is only in the interests of complainants if we expect ICO to uphold most complaints. We don’t have any reason to think that will be the case; ICO’s record on FOI and other complaints is irrelevant because it is based on different legislation, and OPSI has handled too few PSI complaints to provide credible data.
Could ICO substitute for OPSI, but with a right of appeal to the FTT? Perhaps – but where is the advantage? There is little practical difference between an OPSI “recommendation” and an ICO “binding decision” if parties to the complaint have recourse to the FTT either way.
Notwithstanding the recent introduction of re-use into the Freedom of Information Act, ICO has no track record on handling PSI complaints. It is already under-resourced to manage its casework on FOI/EIR and data protection. Even if OPSI staff and resources were transferred to ICO, PSI could well be seen as a low priority relative to FOI and DPA. I think it makes more sense to retain OPSI as a specialised unit within the information policy environment of National Archives.
The one advantage ICO has over OPSI is a recognisable public profile. But that is a function of the Government’s decision to conceal OPSI. Rather than transfer OPSI’s functions to ICO, the Government should give OPSI back it’s own public-facing identity. The Government should also require public bodies to include information about the OPSI complaints process in any responses they make to requests for re-use of PSI.
Comments on the Open Data Institute’s draft submission: Charging
I concur with ODI’s response to Question 4, as far as it goes. As I think ODI has recognised, it is difficult to comment in detail on the proposed approach to charging because National Archives hasn’t actually set out any new criteria, either for deciding when public bodies are entitled to charge above marginal cost or for how those charges should be calculated.
I think ODI is quite right to be concerned that the charging regime under the new PSI regulations could be implemented in a manner contrary to the stated aim of the PSI Directive.
My recommendations in this regard are as follows:
Yes, the last point is an unrealistic expectation. But that is the approach Government should take if it wants to show full support for the open data agenda, and maximise re-use of public sector information. The only barrier is political will.
Update 7 October 2014:
I have now submitted my own views to the National Archives consultation.
Image credit: Ministry of Justice by Charles Hoffman (CC BY-SA 2.0)