The news that a UK local authority has refused to release information to a website on the grounds that automatic publication on the applicant’s website amounts to re-use poses an interesting challenge to existing legislation and assumptions (see story in)
The website in question -- aggregates the process of making FOI requests and publishes the results. It is acting very much in the spirit of both the last Government’s open data agenda and so much more in the spirit of the Coalition Government, whose commitment to transparency and accountability looks like surpassing its predecessor by some distance!
The council in question – Brent – is however acting within the legal framework established by regulation. As defined under UK and European law “re-use means the use by a person of a document held by a public sector body for a purpose other than the initial purpose within that public sector body’s public task for which the document was produced" (). Accessing a document under Freedom of Information is one thing; exposing it via the internet as part of an aggregated service is “re-use”.
Now the website faces a choice. It can adopt a Wellingtonian stance of “Publish and be damned”. Or it can apply for a licence. In which case it will have to adhere to whichever terms and conditions which the public body chooses to apply (and Local Authorities in particular are notoriously inconsistent in how they apply these terms.) The public body may refuse to permit re-use, or it might permit it but with “charges for the cost of collection, production, reproduction and dissemination of documents” and also “a reasonable return on investment” (SI 1515, section 15). Furthermore, there is no obligation to decide upon this expeditiously.
None of which is consistent with the spirit of open data and this Government’s agenda.
Here is where the law lags well behind the internet age – what constitutes “publishing” and “re-use” in the self disclosing age of the blog? Any attempt to fall back on making distinctions between “commercial" re-use and "not for profit" re use will also fall apart - what is “commercial” re-use in an age of privatised public utilities, Trading Funds and not for profit corporations?
Government lawyers will continue to make elegant cases for distinguishing between Access and Re-use – just as they continue to uphold the distinctions between Crown Copyright and other forms of public sector intellectual copyright (another subject, another time!).
There are some good reasons - a check on the mis-use of third party intellectual property within a public sector dataset, for example being a very good one. But it is a thin legalistic membrane which distinguishes Access from Re-use - one in danger of fast dissolving under the pressures of technological advance and Government’s own policy momentum.
Public sector bodies are being driven to admit Re-use as readily as they have supported (however reluctantly) Access. The new and vastly simplified UK Government Licencing Framework, to be published later this week by, is keenly awaited in this respect (STOP PRESS: )
It needs to (and is expected to) simplify vastly the process of licencing of public sector information to prevent this legalistic membrane which divides Access and Re-use from being rent asunder.