Get set, Go

Government proposals on the release of datasets are likely to generate a great deal of extra work for public authorities, says Ibrahim Hasan.

In January the Government announced plans to amend the Freedom of Information Act 2000 (FOI) to ensure public authorities proactively release data in a way that allows businesses, non-profit organisations and others to re-use it for social and commercial purposes. Clause 92 of the Protection of Freedoms Bill, currently going through Parliament, contains proposals to require all public authorities to release datasets in a re-usable electronic format. If passed, which seems very likely, it will mean more FOI requests from commercial companies and data aggregators and fewer reasons for public authorities to say no.

What is a Dataset?

A dataset is a collection of information held in electronic form where all or most of the information meets the four criteria set out in the following paragraphs (of the new section 11(5) of FOI):

• It has to have 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
• It is factual information which: (a) is not the product of interpretation or analysis other than calculation, in other words that it is the ‘raw’ or ‘source’ data; and (b) is not an official statistic the meaning given by the Statistics and Registration Service Act 2007 (“SRSA 2007”). (Official statistics have been excluded from the definition of datasets as the production and publication of official statistics is provided for separately in the SRSA 2007.)
• It 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. (Datasets which have had ‘value’ added to them or which have been materially altered, for example in the form of analysis, representation or application of other expertise, would not fall within the definition.)

Examples of the types of datasets which meet the definition include postcodes and references used to identify properties, spend data, lists of assets and information about job roles in a public authority.

Re-Usable Electronic Form

Clause 92 of the Bill will amend section 11 of FOI (means by which communication to be made). At present section 11 allows a requestor to choose the format of the information to be supplied to him. As long as this is reasonably practicable the public authority must give effect to his preference.

A new section 11(1A) will mean that in future where a request is made for information held by a public authority that is a dataset, or which forms part of a dataset, and the applicant requests that information be communicated in an electronic form, then the public authority must, so far as is reasonably practicable, provide the information in an electronic form that is capable of re-use. This is in a machine-readable form using open standards which enables its re-use and manipulation. Thus, in future, authorities will be prevented from turning an Excel spreadsheet into a PDF document before releasing it in order to stop recipients conducting their own analysis or re-formatting the data.

New section 11(1A) uses the words “so far as is reasonably practicable”. There is no absolute duty for datasets to be provided in a re-useable format as it is recognised that, in some instances, there may be practical difficulties in relation to costs and IT to convert the format of the information.

Copyright Works

New section 11A(2) provides that when communicating a dataset to an FOI applicant and all or part of the dataset contains a relevant copyright work, a public authority must make the copyright work available for re-use in accordance with the terms of the specified license. The terms of such a license will be specified in a new section 45 Code of Practice. It is not known at present whether such licenses will allow public authorities to charge for allowing re-use.

The definition of a “relevant copyright work” includes a copyright work (as defined by the Copyright Designs and Patents Act 1998) as well as a database subject to a database right. This provision is designed to prevent public authorities from refusing to release datasets on the basis that they contain a copyright work and so are exempt under section 43 (commercial interests).

New section 11A(1) provides for the four criteria which must be met for the new requirement to allow re-use of datasets (in section 11A(2)) to apply:

(a) a person must have made a request for a dataset or part of it

(b) the dataset requested includes a ‘relevant copyright work’

(c) that the public authority is the only owner of the ‘relevant copyright work’ (in other words that it is not owned in whole or in part by a third party); and

(d) that the public authority is communicating the relevant copyright work to the requester under the FOI (in other words it is not being withheld under one of the exemptions).

These provisions will require public authority information professionals and lawyers to brush up on their knowledge of copyright and database law. There are many cross references to the Copyright Designs and Patents Act 1998 as well as the Copyright and Rights in Databases Regulations 1997.

Proactive Publication

Once a dataset is disclosed following an FOI request, the Protection of Freedoms Bill amends FOI to place obligations on the public authority to make that dataset more widely available.

Under new section 19(2A) of FOI, Publication Schemes must include a requirement for the public authority to publish any dataset it holds, which is requested by an applicant, and any updated version of the dataset. All datasets published in this way will have to, where reasonably practicable, be in an electronic form which is capable of re-use and any relevant copyright work within it will have to be made available for re-use in accordance with the terms of the specified licence (as above).

New section 19(2A) requires authorities to publish any dataset as discussed above unless “the authority is satisfied that it is not appropriate for the dataset to be published”. The Campaign for Freedom of Information (www.cfoi.org.uk), in its submission to the Protection of Freedoms Bill Committee on clause 92 of the Bill, has criticised this carve out as not within the sprit of the Act and because it involves a subjective element which will be difficult for the Information Commissioner to oversee. It remains to be seen whether this provision is amended as per the Campaign’s suggestion to a “reasonably practicable” test.

Clause 92(5)(a) of the Bill amends section 45 of the FOI (issue of code of practice) to insert a new requirement for the code of practice to include provision relating to the disclosure by public authorities of datasets held by them. Paragraph (b) of the same clause sets out the different provisions relating to the re-use and disclosure of datasets that may, in particular, be included in the code. Paragraph (c) amends section 45(3) of the FOI so as to provide for the possibility of making more than one code of practice under section 45, each of which makes different provision for different public authorities.

The new FOI obligations to be introduced by the Protection of Freedoms Bill will no doubt mean more work for public authorities at a time when money is scarce and staff levels are being reduced.

There will be at least one new code of practice to implement as well as a new publication scheme to adopt. It will be interesting to see the terms of the “specified license” and to what extent, if at all public authorities, will be able to charge for allowing re-use of datasets.

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