Freedom of Information and Charging for Public Sector Data
Prior to yesterday’s release of the Cabinet Office’s Open Data White Paper there was speculation, mainly in an article first published Wednesday evening on the Guardian website, that the UK Government would also use this occasion to announce a review of charging for information requested under the Freedom of Information Act.
It’s unclear whether the Guardian’s original draft was just based on a misunderstanding, or whether the Cabinet Office picked up on the initial negative responses and decided it would really rather not face the wrath of both open data campaigners and freedom of information activists on the same day.
Either way the Guardian article was substantially revised with comments from a Cabinet Office spokeswoman, and the original headline ‘Public services data to be published - but at a price’ was replaced by the much more congenial ‘Mass of government data on public services to be published’.
Although the Open Data White Paper was rather a damp squib for those of us hoping for some commitments on release of core reference data, it was apparently well-received by those concerned mainly with public sector transparency. The success of the launch event was also helped by a colourful revamp of the Government’s public data portal Data.gov.uk.
Had the Government decided to float a FOI charging proposal yesterday, the social media reaction would have eclipsed any positive coverage of the open data paper.
FOI charging therefore remains an outstanding and highly contentious issue for another day. Probably another day soon; we know that the Ministry of Justice, which for some reason has lead responsibility for the freedom of information brief, is keen on charging.
It should be said however that if charging for FOI responses and charging for re-use of public sector data are two ideas that are easy to confuse, the Government has only itself to blame. Recent legislative changes seem to have been designed to deliberately conflate requests for access to information with licensing to re-use that information, when the subject of the information request is a publicly-owned dataset.
Following changes to the Freedom of Information Act brought in last month (via Section 102 of the Protection of Freedoms Act), the Government has effectively combined the procedures for requesting FOI access to a dataset and requesting a licence to re-use that dataset.
Annex B in yesterday’s Open Data White Paper establishes clearly that the standard route for requesting re-use of any public dataset that is not already available is now to submit a FOIA request.
The FOIA changes include a new power to charge fees in relation to release of datasets for re-use. Although the original intention may not have been to allow charging for access alone, the actual language of the FOIA changes is suspiciously ambiguous. The provisions seem to require public bodies to prepare the data for re-use anyway, i.e. to do the work for which they could charge a fee, even if the requestor only wants to access the data.
The practical effect is that public bodies will have the option to charge for responding to a FOIA request whenever that request is for a public dataset, unless or until they receive clearer guidance to the contrary from Government.
Public bodies have not yet had formal guidance from Government on interpretation of these FOIA changes or on the appropriate shape of any charging policies. That may fall within the scope of new responsibilities given to the Information Commissioner’s Office. The ICO is expected to introduce a revised model publication scheme in April 2013.
Open data campaigners will hope that any such guidance re-establishes the presumption that public bodies should charge at most the marginal cost of preparing the data for re-use. Under the previous Government public bodies were (in principle at least) required to justify any charging policy that was not based on a marginal cost pricing approach.
P.S. I wrote a previous analysis of these problems back in February, when the Protection of Freedoms Bill was under scrutiny in Parliament.