The information held by public sector organisations is extremely valuable. In an attempt to aid the commercial exploitation of public sector information, new regulations came into force on 1 July 2005 which provide rules to govern the re-use of public sector information. The impact of these regulations is potentially huge for the public sector. This article highlights the main features of the new regulations.
Public sector bodies collect, produce and disseminate a huge amount of information. In fact, the public sector represents the largest source of information in Europe and, according to the European Commission, it accounts for between 15 percent and 25 percent of the total data used in e-commerce trading. The value of this industry in Europe has been estimated at €496 billion. In the United States however, the equivalent industry is estimated to be five times larger despite the United States’ economy being roughly equal in size to that of the European Union.
Based on the value of the industry in the United States, the European Commission views the exploitation of the public sector information in Europe as having huge commercial potential. However, to realise this potential the Commission decided that there would need to be EU-wide legislation in order to harmonise the currently disparate legislative provisions across the different Member States of the European Union. As a result, on November 17, 2003 the European Union passed Directive 2003/98/EC on the Re-use of Public Sector Information (the “Directive”).
The Directive aims to regulate the exploitation of public sector information resources and to harmonise the rules in this area across the European Union. The Directive provides a minimum set of standards across the EU Member States. The Member States are however free to create a more extensive framework of rules to allow for a greater range of re-use.
The EU Member States were required to pass laws and regulations to implement the Directive by July 1, 2005. This has given rise to the drafting of the Re-use of Public Sector Information Regulations 2005 (SI 1515/2005) (the “Regulations”), which came into force on July 1, 2005.
The Regulations: Key Provisions
The scope of the Regulations is quite broad – it covers information recorded in any form, whether in writing or stored in electronic form or as sound, visual or audio-visual recording. Computer programs are specifically excluded from the scope of the Regulations. The Regulations only apply to documents held by public sector bodies, which includes government departments, the House of Commons and local authorities.
As the name of the Regulations suggest, they only apply to the re-use of existing public sector information (not the creation of new information).
Examples of the types of public sector information which would be potentially covered by the Regulations include:
What is Re-Use?
For the purposes of the Regulations, re-use covers any use of a document for a purpose other than the purpose for which the document was produced. This obviously covers a broad range of activities. However, it specifically does not include the transfer of the documents within the relevant public sector body or the transfer of documents between different public sector bodies for the purposes of fulfilling their public tasks.
The Regulations contain several exclusions. They do not apply to:
Documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies (e.g., not directly related to its core responsibility); and
Documents in which third parties hold intellectual property rights.
In addition, the Regulations do not apply to a document unless:
It has been identified by the public sector body as being available for re-use; or
It has been made available to the individual (e.g. under the Freedom of Information Act 2000 (“FOIA”)); or
It is otherwise obtainable by means other than by making an application under either the Data Protection Act 1998 (“DPA”) or FOIA.
The Regulations do not apply to documents that are held by:
Documents held by public service broadcasters;
Documents held by educational and research establishments; or
Documents held by cultural establishments, such as museums, libraries, archives and theatres.
Finally, the Regulations do not apply in cases where citizens or companies have to prove a particular interest in the information in order to gain access to it. (So, for example, information which would only be released in response to a subject access request under the DPA would not be available for re-use, due to this provision).
Requests for Re-Use
The Regulations place an obligation on public sector bodies to list the main documents in their possession that are available for re-use in an “Asset List”. This is something that all public sector bodies should take note of as it may require a detailed analysis of the nature of the information held by that body.
Companies who wish to use public sector information must make an application to the appropriate public sector body. The application must be in writing, provide a name and address for communication, specify the document requested and the re-use planned. The request should be processed promptly and at the latest by the end of the twentieth day from the date of receiving the application, unless the request is particularly extensive or complex, in which case the response should be in a reasonable time period.
Conditions of Re-Use
The Regulations state that a public sector body may impose conditions on the re-use of information, providing:
the conditions do not unnecessarily restrict the way in which a document can be re-used or restrict competition; and
the public sector body must not discriminate between applicants who make a request for re-use for comparable purposes (or between an applicant’s and the public sector body’s re-use).
The most likely method of imposing conditions on re-use is by creating a licence. In an attempt to standardise the licences used in this context, the HMSO has drafted a standard licence (called the “Click-Use Licence”) which can be used either in its unaltered form or amended to reflect the specific arrangement needed.
One of the most important provisions of the Regulations relates to exclusivity arrangements. The Regulations prohibit public sector bodies from entering into exclusive arrangements with any applicant, unless this is necessary for the provision of a service in the public interest. Any exclusive arrangement entered into after December 31, 2003 must be published by the public sector body. Any exclusive arrangement already in existence that does not satisfy the public interest test must be terminated at the latest by December 31, 2008.
Format of Documents
There is no obligation on public sector bodies to create or adapt documents in order to comply with a request to re-use information. This means that public sector bodies can leave documents in the format and language in which they were created. In addition, there is no obligation to provide extracts from documents where this would involve disproportionate effort.
Charges may be levied for the re-use of the information, but the Regulations set out the strict provisions on the amount that can be charged. In particular, the total income from the charge for re-use must not exceed the sum of the “cost of collection, production, reproduction and dissemination of the documents” and “a reasonable return on investment”. What is considered to be “a reasonable return on investment” is not explained in the Regulations and so is open to interpretation, however clearly the scope to make large profits is likely to be limited and public sector bodies may be called upon to justify their charges.
The Regulations require a public sector body, if possible, to establish standard charges for re-use, calculated in accordance with applicable accounting principles and on the basis of a reasonable estimate of the demand for a document over the body’s accounting period. These charges should then be made available to the public.
One interesting further point to note in relation to charging for re-use is that, where an applicant has been charged to access the same data under information access legislation (e.g. the FOIA), the authority may not make a further charge in relation to the collection and production of the information, although the possibility of obtaining a reasonable return on investment appears to remain.
The final major section of the Regulations deals with the complaints procedure that should be followed by an aggrieved applicant if a public sector body refuses the applicant permission to re-use the information held by it.
The first stage in the complaints process is dealt with by the public sector body in accordance with its internal complaints procedure. After this there are several appeal stages including a review of the complaint by the Office of Public Sector Information, a new government body created to oversee the development of the re-use of public sector information. The appeal process culminates in a review by the Advisory Panel on Public Sector Information.
Unlike the regime under the FOIA 2000, under these Regulations public sector bodies are required to put in place an internal complaints procedure. However, it is worth noting that individuals still have the ability to by-pass the complaints procedure and make a claim through the courts (again this is difference from the position under FOIA where complainants must follow the procedure under the Act rather than take their complaint to the courts).
In practice requests for re-use are likely to be combined with requests under the FOIA: applicants will first attempt to get access to the information and then ask the ability to re-use that information. Therefore, public sector bodies will need to ensure that anyone dealing with freedom of information requests is able to recognise a request for re-use, even if they do not handle it themselves.
The pressure points will no doubt come from requests where the public sector body is minded to refuse the re-use or places, what is considered to be, onerous conditions on the re-use. It is important to note that these Regulations do not require the disclosure of information. The Regulations apply to a document which has already been made available to the individual or is identified as being available for re-use. The Regulations themselves do not require re-use. However, although there is no legal obligation to require re-use, there is heavy emphasis in guidance that public sector bodies must think long and hard about refusals to re-use. Inventive complainants may consider using judicial review or competition law to argue against unreasonable or unfair refusals. In addition, any onerous charges for re-use would not be viewed favourably. Guidance places emphasis on the policy of encouraging re-use of public sector information.
Public sector bodies will need to respond to these Regulations by organising their information asset lists, showing those items of public sector information which are available for re-use and also organising licence terms and charging policies. Resource will be required to handle the requests (either new resource or extra time from FOI officers) and deal with any complaints.
The objective of the Directive, and therefore the Regulations, is relatively simple: a fair, non-discriminatory process for the “re-use of public sector information”. It is intended that this will be an addition to existing information access regimes. Anecdotally, to date, the use and awareness of these Regulations seems to be very limited. Assuming this will change over time, no doubt we will face some difficult questions on whether particular re-use should be refused and/or the type of conditions which can fairly be applied to any re-use.
More information can be found at the following links:
This article was first published in the November 2005 issue of BNA International's World Data Protection Report (www.bnai.com).