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Open Season for Data

September sees the start of the open season for public sector data, in the form of new regulations furthering the Government's open data plans.

In June 2012, the Government published its “Open Data White Paper – Unleashing the Potential". The fact that this White Paper was presented to Parliament by Francis Maude, Cabinet Office Minister and Paymaster General, perhaps gives an insight to the Government’s motives here: releasing public sector datasets not only meets the Government's transparency agenda but it is also intended to kick start economic revival. The foreword to the paper starts with Francis Maude’s statement “data is the 21st century's new raw material”.

In order to further these aims the White Paper had a multi-faceted approach to promoting

  • Releasing more data into the public domain;
  • Making the data accessible through an overhauled site;
  • Reviewing the use/reuse funding and regulation of public sector information;
  • Amending the Freedom of Information Act 2000; and
  • Making sure privacy experts are brought into all sector panel discussions when data releases are being considered.

Changes to FOIA came into effect on 1 September 2013, introduced by the Protection of Freedoms Act 2012, and address how information is to be released by the public sector. Guidance issued by the Information Commissioner’s Office (ICO) and the government address these new provisions.

Broadly, these provisions look at the release of datasets, a new defined term. Where requested electronically, or where the form is specifically requested, a person can receive a dataset from a public sector body. The dataset will be information in electronic form which has been obtained or recorded by the public authority in connection with its functions, but has not been the subject of any analysis or interpretation. It is therefore intended to be raw data.

The public authority has an obligation to provide the information in electronic form “which is capable of re-use”. Therefore any spreadsheet made available must be in an open standard such as CSV, rather than a proprietary one, such as Microsoft Excel.

Apart from the practical issues of what is the subject of this new right and how the dataset should be released, there are some legal and financial issues. For example, what is the basis of the licensing of any intellectual property rights in the datasets? It is intended that public sector bodies should make available these works in accordance with the Open Government Licence (OGL) which enables datasets to be reused without charge. Where this is not appropriate there are alternative government licences to enable the public authority to make a charge.

This leads to another thorny issue: the fees that can be levied by public sector authorities. Further regulations which came into force on 1 September 2013 specify how any fees must be calculated. The fees must be limited to the cost of collection, reproduction and dissemination of the dataset together with a reasonable return on investment. The fee must be calculated in accordance with public authority accounting principles and on the basis of a reasonable estimate of the demand for the particular work over an appropriate period.

Apart from making datasets available in respond to particular requests, public authorities are under new obligations to proactively publish datasets and make them available for re-use. This will require amendments to publication schemes under FOIA to include any datasets which will be made available.

Provisions relating to datasets will be enforced by the Information Commissioner. In what circumstances might he be active in this area? The particularly sensitive areas are likely to be:-

  • Defining what is a data set and the extent to which information has been analysed or interpreted by the public authority and is therefore taken out of this definition;
  • The incorporation of third party owned material inside a dataset and the potential risk to public sector authorities that they will have breached copyright (or some other intellectual property right) in making available that material under these regulations;
  • The selection by the authority of the relevant licensing terms and the calculation of any fees payable for reuse; and
  • Anonymisation of any personal data in the dataset. Given the ICO’s particular responsibilities and the issue of ICO’s Anonymisation Code earlier this year, the ICO is likely to be particularly interested in ensuring that the information released for reuse does not permit re-identification of the individuals who were the subject of the original datasets.

But this is not the whole picture, elsewhere open data is receiving renewed interest. On 30 August the European Commission issued a consultation on best ways to open up more public data. Interested parties can contribute up until 22 November 2013. The aim being to ensure an effective implementation of the newly revised Public Sector Information Directive.