FOI reforms: dataset information could be disclosed in re-usable format even though copyright restrictions may still apply

Out-Law News | 12 Aug 2013 | 5:14 pm | 3 min. read

Public authorities could be required to make copyrighted information contained in datasets available in a re-usable format under changes to freedom of information (FOI) laws even if they are not in a position to sanction re-use.

On 1 September new laws amending parts of the Freedom of Information Act (FOIA) will come into force and require public bodies to disclose datasets "in an electronic form which is capable of re-use" when requesters ask for information to be provided in electronic form, subject to it being "reasonably practicable" to do so.

Under the reforms, public bodies will also be obliged, when making such FOIA disclosures, to licence the re-use of the datasets by others when they own the copyright to that information. However, even where they do not own the copyright in the information, the public authorities will still have to make the material available in a re-usable format.

The Information Commissioner's Office (ICO) has issued new guidance on dataset disclosures under the new FOIA rules (33-page / 427KB PDF). In a statement sent to Out-Law.com the watchdog clarified that rules on licensing and copyright would not impact on the duty of public authorities to release information from a dataset in a re-usable form when "the requester wants it in electronic form".

"If the dataset is a relevant copyright work (as defined) and the public authority is the only owner of the copyright/ database rights, then the public authority must release the dataset under the terms of the specified licence," an ICO spokesperson said. "If the dataset is not a relevant copyright work, or if it is one but the public authority does not own the copyright/ database rights, then the public authority still has to release the dataset in a form that is technically capable of being re-used."

"This may appear paradoxical; on the face of it, the PA [public authority] is having to release something that can be re-used but is not allowing the requester to re-use it," the spokesperson conceded. They said, though, that there are a couple of reasons why the rules are as they are.

"Firstly, as we point out in the guidance, providing a dataset in an open format rather than a proprietary one will make it easier for the requester to read the data, even if they don’t re-use it," the ICO spokesperson said. "Encouraging the use of open formats is part of the Government’s open data strategy."

"Secondly, one of the largest categories of datasets that are not relevant copyright works, and hence fall outside [the scope of the new provisions], is that of Crown copyright works. However, where Crown copyright works can be re-used they are already made available, mainly under the Open Government Licence. They are taken out of the duty [under the reforms to make copyrighted works available in a re-usable form, subject to licensing conditions] because they are already made available for re-use under equivalent conditions. Furthermore, the government department releasing Crown copyright datasets is still bound by the duty ... to make them available in a form that is technically capable of being re-used."

Guidance issued by the Ministry of Justice (20-page / 110KB PDF) last month advised public bodies to generally make information they disclose under the terms of the new rules available for re-use under the terms of the Open Government Licence, under which re-use can be made of Government-owned copyrighted material for free.

It said, though, that public authorities can legitimately decide to make dataset information subject to charges under the 'Charged Licence' agreement, or make use of the Non-Commercial Government Licence if they wish to restrict the re-use of its material for non-commercial purposes only.

Under new rules set out in The Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations, which also come into force on 1 September, public authorities will be permitted to account for "the cost of collection, production, reproduction and dissemination of the relevant copyright work" and consider what "a reasonable return on investment" would be when setting charges for re-use of copyrighted dataset information they disclose under the amended FOI regime.

"A public authority may not charge for the cost of providing the dataset in a reusable format but can take into account the cost, time and resources involved in deciding whether it would be reasonably practicable to do so," the MoJ's guidance said.

In its guidance document the ICO also advises public bodies to consult its code of practice on anonymising personal data to help ensure that there is no unauthorised disclosure of personal data when the authorities disclose information in line with the new rules. The watchdog last month warned that it was considering enforcement action against some public sector bodies over the way personal data was being disclosed in responses to FOI requests.