FOI can make you money!

The Protection of Freedoms Bill will provide an opportunity for public authorities to raise some much-needed revenue from some information requests under the Freedom of Information Act 2000 (FOI), writes Ibrahim Hasan.

Many public authorities have expressed concerns about FOI being “abused” by the private sector. They have cited examples of information requests where they are effectively asked to do unpaid research or to supply facts, figures and statistics, which are then repackaged and sold on for profit.  On first reading the Protection of Freedoms Bill, currently proceeding through the Report Stage in the House of Lords, will not help matters.

Clause 102 of the Bill will amend FOI to require all public authorities when releasing datasets (raw unprocessed data) pursuant to an FOI request, to do so in a re-usable electronic format. Where such datasets contain copyright work (owned by the authority), they must make that copyright work available for re use in accordance with the terms of a specified license. Finally once datasets are disclosed under FOI, they must also be published as well as any updated versions. For a full discussion of the proposals see my previous article in Local Government Lawyer.

As far as disclosures of normal datasets go (i.e. those not containing copyright work) the usual FOI charging provisions will apply as set out in Section 12 and the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. This means that public authorities will only be able to charge photocopying, postage and any disbursements.

However when it comes to allowing re use of datasets containing copyright work, in what seems to be an amendment to the Bill during its passage, a new Section 11A(4) will be added to FOI. This states that nothing prevents a public authority “from exercising any power that
it has by or under an enactment other than this Act to charge a fee in connection with making the relevant copyright work available for re use.” This means that if there are any other regulations or statute which allow a public authority to charge for re use of copyright material contained in a dataset, then FOI cannot be used to obtain free permission to re use the same. Note though that this only covers re use of the material not disclosure of it. Access to the dataset is still covered by FOI and the Fees Regulations (discussed above).

A new Section 11B of FOI also allows for regulations to be made to make provision about the charging of fees by public authorities in connection with making copyright material in datasets available for re use. Section 11B(2) states that these regulations may:

(a) prescribe cases in which fees may, or may not, be charged,

(b) prescribe the amount of any fee payable or provide for any such amount to be determined in such manner as may be prescribed,

(c) prescribe, or otherwise provide for, times at which fees, or parts of fees, are payable,

(d) require the provision of information about the manner in which amounts of fees are determined,

(e) make different provision for different purposes.

Section 11B(3) also allows for the possibility of public authorities making a profit from charging for re use of datasets which include copyright material:

"(3)  Regulations under this section may, in prescribing the amount of any
fee payable or providing for any such amount to be determined in such manner as may be prescribed, provide for a reasonable return on investment." (my emphasis)

This is a significant departure from the normal FOI charging principles as discussed above. It also seems to duplicate the Re-use of Public Sector Information Regulations 2005, which came into force on 1 July 2005. The aim of these Regulations is to encourage the re use of public sector information by removing obstacles that stand in the way of re use. It requires those bodies covered by it to consider requests for re use fairly and to impose fair and transparent conditions on re use. The main problems with the Regulations are they do not impose an obligation to allow re use, do not have a binding enforcement mechanism and do not apply to some organisations e.g. universities and cultural establishments. This has led to very few requests being made to public authorities for re use under these Regulations. The amended FOI provisions relating to datasets, to be introduced by the Bill, will apply to all public authorities, will be obligatory and will be enforced by the Information Commissioner. Much of the detail will be contained in a new Section 45 Code of Practice. Expect lots of complaints and arguments about the definition of datasets, what is a “reasonable return of investment” and what is copyright material.

The Protection of Freedoms Bill will create more work for public authorities at a time when resources are scarce and staff numbers are being reduced. It will also bring an opportunity for canny public authorities to make some money. Public authorities need to start work now on identifying datasets and raising awareness amongst stakeholder departments.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk). He is course director for the ISEB certificate in Freedom of Information and publishes the UK’s only FOI podcast.