New opportunities and increased accountability: public sector re-use rules come into force

By Steve Wood, Head of Policy Delivery.

RPSIThis weekend, as most of us will be hoping that rain doesn’t interrupt summer fêtes, weddings, BBQs or stage 14 of the Tour de France, the ICO will take on a new role under the Re-use of Public Sector Information Regulations 2015, which come into force on Saturday.

The Regulations require public sector bodies to make information available for re-use, putting the revised European Directive on re-use of public sector information on a legislative footing, and supporting the Government’s commitment to open data.

We welcome this new role for the ICO. It fits well with the work we already do, and it will build on our experience with issues such as transparency and proactive disclosure. It will also enable us to play a further role in promoting open data. Improving the re-use of public sector information can increase accountability and create new opportunities for public sector information to be combined into new information products.

Most public sector bodies will now have to make information that they produce as part of their ‘public task’ available for re-use, unless it’s restricted or excluded (for example personal data). The previous Regulations, issued in 2005, encouraged re-use but didn’t require it; this is an important change in emphasis.

The previous Regulations specifically excluded libraries, museums and archives. These bodies are now covered by the new Regulations but they only have to consider making information available for re-use, unlike other public sector bodies for whom re-use will be mandatory. Educational and research establishments are not subject to the Regulations.

In most cases public sector bodies will only be able to charge marginal costs for allowing re-use. This will mean that in most instances there will be no charge for online or digital information. Charges above that level are permitted in some circumstances: if the public sector body is required to generate revenue to cover a substantial part of the costs in relation to its public task or of specific documents, or if it is a library, museum or archive. The Regulations set out the criteria for calculating charges in those situations.

The 2015 Regulations cover public sector bodies in Scotland, meaning that the ICO will have responsibility for handling re-use complaints about these bodies. The Regulations contain an obligation for the ICO to share information with the Scottish Information Commissioner when we receive re-use complaints about Scottish public sector bodies and we will update our MoU with them to reflect this, and work to ensure that a joined approach is taken when necessary.

Many public sector bodies already make vast amounts of information available for re-use, have open data strategies and plans to progressively make information re-usable, and the Regulations will reinforce this existing good practice. We will encourage public sector bodies to continue to make use of the Open Government Licence. Compliance with initiatives such as the Local Government Transparency Code will have prepared the ground. However, there may still be difficult issues in some cases and the ICO’s job will be to resolve them.

Some questions public sector bodies will need to start asking:

  • Does my public sector body have a statement about our public task?
  • Do we have a policy on licencing and charging?
  • Are we familiar with the Open Government Licence? Will we use it by default?
  • Do we have a policy on when information will be made available in machine readable formats (e.g. csv)?
  • Do we have an information asset list?

If someone who wants to re-use information is not satisfied with the public sector body’s response, and has exhausted their internal complaints procedure, they can complain to the ICO. We have been given this role because we are independent of government and have existing powers to make legally binding decisions. We were able to speak publicly about our new role once the Regulations were laid in Parliament on 25 June.

We have a range of powers that will enable us to investigate complaints and to communicate the outcome. This will include the power to issue information notices on public sector bodies to obtain details about the position they are taking in relation to the re-use of information. This is much like our power under the Freedom of Information Act and will be open to us when investigating those complaints where we can make a legally binding decision.

In the majority of cases we will communicate the outcome of our investigation via a decision notice. This will set out any steps we consider a public sector body needs to take in order to comply with its obligations under the Regulations. A decision notice could be appealed by either the public sector body or the applicant to the First-Tier Tribunal.

If a complaint is about charging above marginal cost, our powers will be more limited. In these cases we have the power to make a recommendation rather than a binding decision. The public sector body must still consider and respond to the recommendation.

We will publish our decisions and recommendations on the ICO website.

We will publish our own guidance on our website, the Guide to Re-Use of Public Sector Information Regulations 2015 and The National Archives have also published their own guidance. We will update our guidance over coming months as we learn more about the different compliance issues that emerge. If you think there are areas that the ICO should cover in guidance please contact us with suggestions. We also plan to run a webinar in the Autumn. We will continue to work closely with the National Archives, as we have been over the last few months to draw on their knowledge and expertise and will also publish a revised MoU with them because they will retain their policy role in relation to re-use and public sector copyright.

Last updated 17/07/2015 17:00

Steve WoodSteve Wood‘s department develops the outputs that explain the ICO’s policy position on the proper application of information rights law and good practice, through lines to take, guidance, internal training, advice and specific projects.
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