Re-using public sector information

November 30, 2015

This Q&A from the LexisPSL Public Law team examines the key changes implemented by the Re-use of Public Sector Information Regulations 2015, which came into force from 18 July 2015, replacing the Re-use of Public Sector Information Regulations 2005.

The Re-use of Public Sector Information Regulations 2015 (2015 Regulations) came into force on 18 July 2015, replacing the Re-use of Public Sector Information Regulations 2005 (2005 Regulations). The 2015 Regulations implement Directive 2013/37/EU amending Directive 2003/98/EC on the Re-use of Public Sector Information. The aim of the new Regulations is to encourage proactive publication of information which is easy to identify and re-use, making it simpler to re-use public sector information and to support technology-driven growth, in accordance with the principles of fairness, transparency, non-discrimination and consistency. The table below sets out a non-exhaustive list of key provisions, comparing the 2015 Regulations against the corresponding provisions of the 2005 Regulations.

2015 Regulations and 2005 Regulations--key provisions compared:

	New regulations		Old Regulations (Compared)
	Re-use of Public Sector Information Regulations 2015	SI 2015/1415	Re-use of Public Sector Information Regulations 2005	SI 2005/ 1515
Public sector bodies	The 2015 Regulations apply to public sector bodies, including government departments, local authorities and certain cultural establishments: libraries, museums and archives.	SI 2015/1415, regs 3, 5	The 2005 Regulations apply to public sector bodies, including government departments and local authorities (with cultural establishments excluded).	2005 Regs, regs 3, 5
Information in scope	For the 2015 Regulations to apply, the document must be: - identified by the public sector body as being available for re-use - provided to the applicant (ie accessed) - otherwise accessible by means other than by making a request for it within the meaning of the Data Protection Act 1998, the Freedom of Information Act 2000 (or Freedom of Information (Scotland) Act 2002 where appropriate), or the Environmental Information Regulations 2004, SI 2004/3391 (or Environmental Information (Scotland) Regulations 2004 where appropriate)	SI 2015/1415, reg 5	For the 2005 Regula-tions to apply, the document must be: - identified by the public sector body as being available for re-use - provided to the applicant (ie accessed) - otherwise accessible by means other than by making a request for it within the meaning of the Data Protection Act 1998, the Freedom of Information Act 2000 (or Freedom of Information (Scotland) Act 2002 where appropriate), or the Environmental Information Regulations 2004, SI 2004/3391 (or Environmental Infor-mation (Scotland) Regulations 2004 where appropriate)	2005 Regs, reg 5
Exclusions	The 2015 Regulations do not apply where the activity of supplying the document falls outside the public task of the public sector body as long as the scope of the public task is: - transparent - subject to review The 2015 Regulations do not apply where a third party owns relevant intellectual property rights in the document The 2015 Regulations do not apply to documents held by: - public service broadcasters and other bodies and their subsidiaries for the purposes of the provision of pro-gramme services or public service broadcasting - educational and research establishments including organisations established for the transfer of research results, schools and universities (except university libraries) - cultural establishments (other than libraries, museums and archives), such as orchestras, opera, ballet and theatre establishments	SI 2015/1415, reg 5	The 2005 Regulations do not apply where the activity of supplying the document falls outside the public task of the public sector body. The 2005 Regulations do not apply where a third party owns relevant intellectual property rights in the document. The 2005 Regulations do not apply to documents held by: - public service broadcasters and other bodies and their subsidiaries for the purposes of the provision of pro-gramme services or public service broadcasting - educational and research establishments, such as schools, universities, archives, libraries and research facilities including organisations established for the transfer of research results - cultural establishments, such as libraries, museums, archives, orchestras, and opera, ballet and theatre establishments	2005 Regs, reg 5
Permitting, refusing and responding to a request for re-use	Most public sector bodies have a duty to permit re-use of a document in re-sponse to a request . Cultural establishments subject to the regulations (libraries, museums and archives) holding intellectual property rights in a document have discretion as to whether to permit re-use of that document. Provisions for responding to requests for re-use, notifications of re-fusal and processing requests (by electronic means) are set out in regs 8-10.	SI 2015/1415, reg 7	A public sector body has a discretion to permit re-use of a document in response to a request. Provisions for responding to requests for re-use, notifications of refusal and processing requests (by electronic means) are set out in regs 8-10.	2005 Regs, reg 7
Format of documents	A public sector body must make a document available: - in the format and language in which it exists on the date of responding to the request for re-use; and - in open format and machine-readable format where possible and appropriate	SI 2015/1415, reg 11	A public sector body may make a document available: - in the format and language in which it exists on the date of responding to the request for re-use	2005 Regs, reg 11
Conditions and non-discrimination	A public sector body may impose conditions on re-use through a licence where appropriate. Conditions must not: - unnecessarily restrict the way in which a document can be re-used - restrict competition - discriminate between applicants who request re-use for comparable purposes Open licensing is encouraged	SI 2015/1415, regs 12-13	A public sector body may impose conditions on re-use. Conditions must not: - unnecessarily restrict the way in which a document can be re-used - restrict competition - discriminate between applicants who request re-use for comparable purposes	2005 Regs, regs 12-13
Prohibition of exclusive arrangements	A public sector body must not enter into an exclusive arrangement for re-use (ie a contract or arrangement granting an exclusive right to re-use a document) except: - where it is necessary for the provision of a service in the public interest; or - it relates to the digitisation of cultural resources (in which case the exclusive arrangement should be published and should not normally exceed 10 years)	SI 2015/1415, reg 14	A public sector body must not enter into an exclusive arrangement for re-use (ie a contract or arrangement granting an exclusive right to re-use a document) except where it is necessary for the provision of a service in the public interest.	2005 Regs, reg 14
Charging	Charges for re-use must be limited to the marginal costs incurred in the reproduction, provision and dissemination of the documents unless the public sector body is: - a library, musem or achive, or - required to generate income to cover a substantial propor-tion of the costs of its public task or of the collection, production, reproduction and dissemination of the document in question (in these circumstances, specific charging parameters apply) Marginal cost pricing will be the default and in many cases this will be nil. Charges in excess of marginal cost must be justified in accordance with the 2015 Regulations. Use of standard charges is encouraged as far as reasonably practicable. If not, the public sector body must indicate at the outset the factors taken into account in calculating a charge and set out details in writing if requested by an applicant.	SI 2015/1415, reg 15	Income from charging 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 Use of standard charges is encouraged as far as reasonably practicable. If not, the public sector body must set out in writing the factors that will be taken into account in calculating the charge if requested by an applicant.	2005 Regs, reg 15
Complaints, enforcement and appeals	Public sector bodies must establish an internal complaints procedure. OPSI and APPSI will no longer investigate complaints. If required, complaints may be escalated the Information Commissioner's Office in accordance with the relevant enforcement and appeals provisions of the Freedom of Information Act 2000. The ICO's decision is appealable to the Information Rights First-Tier Tribunal. A modified process applies for enforcement and appeals in relation to charging exceptions. For enforcement and appeals concerning a Scottish Public Authority, the Information Commissioner must notify the Scottish Information Commissioner to allow an opportunity for information sharing.	SI 2015/1415, regs 17-20	Public sector bodies must establish an internal complaints procedure. If required, the complaint may be escalated to the Office of Public Sector Information (OPSI) and thereafter to the Advisory Panel on Public Sector Information (APPSI).	2005 Regs, regs 17-20

Impact on freedom of information, data protection and copyright

The 2015 Regulations seek to balance easier re-use of public sector information with protection of copyright and personal data, providing a framework for re-use of information which presumes re-usability once access has been obtained in accordance with the relevant legislation (unless excluded eg by third-party copyright). Permission for re-use may be required for information which is not provided under an open licence.

Freedom of Information Act 2000

The rights of re-use under the 2015 Regulations have been consolidated with the Freedom of Information Act 2000 (FIA 2000) provisions in respect of datasets falling within the scope of the 2015 Regulations. Regulation 21 amends sections 11A and 19 of FIA 2000 in respect of the release of datasets for re-use, with the effect that:

o re-use of those datasets (or parts of datasets) will be governed by the 2015 Regulations, and not by sections 11A and 11B of FIA 2000
o where a dataset is published in accordance with a publication scheme, the re-use of the dataset will be governed by the 2015 Regulations and the duty under section 19(2A)(c) of FIA 2000 (and the related provisions in FIA 2000, sections 19(2B)--(2F)) will not apply

If the 2015 Regulations do not apply, for instance because the relevant body is excluded under the 2015 Regulations, the re-use provisions under FIA 2000 may still apply if the body in question is subject to the relevant FIA 2000 provisions.

Data Protection Act 1998

The 2015 Regulations do not apply to information for which access or re-use is restricted due to the protection of personal data. Public sector bodies are responsible for complying with the Data Protection Act 1998 (DPA 1998) when making information available for re-use and the applicant for re-use must also comply when re-using the information. The ICO's Guide to Data Protection provides further explanation and guidance on the regulation of use of personal data under DPA 1998.

Copyright

The 2015 Regulations do not impact the law of copyright. The re-use of information under the 2015 Regulations does not grant copyright in the original underlying information, even if that information is already available in the public domain, under open licence, or out of copyright.

For further reading, see the National Archives' Guidance on the implementation of the Re-use of Public Sector Information Regulations 2015 (July 2015). This information is licensed under the terms of the Open Government Licence v3.0.

This Q&A was originally published in LexisPSL Public Law. If you would like to read more quality articles like this, then register for a free 1 week trial of LexisPSL.