Impact on Freedom of Information Law
The Protection of Freedoms Act came into force on 1 May 2012. Amongst its many implications are those for the Freedom of Information Act 2000 Part 6 of the Act covers the Freedom of Information (FOI) and Data Protection (DP) changes. Section 102 amends section 11 of FOI to the following effect:
- where a public authority is asked for information that is in the form of a dataset and the requester asks for it in electronic form, as far as is reasonably practicable, the public authority must disclose the dataset in a re-usable format.
A new section 11A:
- requires that where the copyright of a disclosed dataset belongs to the public authority, it will be subject to a licence to be specified by the Secretary of State in the Section 45 Code of Practice;
- allows an authority to charge a fee for re-use in line with section 11B or any other regulations that provide for a fee to be charged for re-use;
- requires an authority to issue a fees notice to an applicant where it is planning to charge for re-use;
- removes the obligation to allow re-use until such a fee has been paid.
And section 11B:
- empowers the Secretary of State, in consultation with the Treasury, to establish fees for re-use of datasets through regulations;
- these regulations would apply to datasets disclosed in response to FOI requests and listed in a public authority’s publication scheme.
Public authorities will be obliged to publish datasets disclosed in response to FOI requests in their publication schemes unless they are satisfied that it is not appropriate. They will also have to publish updated versions when they change.
Section 45 has been updated to require the Secretary of State to make provision in the Code of Practice for disclosure of datasets.
Section 103 of the Protection of Freedoms Act closes down the loophole in the coverage of FOI for bodies established by two or more public authorities by amending section 6 of FOI.
Section 104 extends certain provisions of FOI that hitherto had not applied to Northern Ireland to that jurisdiction.
Section 105 amends both the Data Protection Act and FOI to extend the Information Commissioner’s term of office from 5 to 7 years, and limit those appointed to the post to one term.
Section 107 amends section 47(4) of FOI allowing the Information Commissioner to charge for “relevant services” – training, multiple copies of published material, and conferences – without consulting the Secretary of State (as he was obliged to do previously).
- public authorities are obliged to make datasets available in a re-usable format on request;
- re-use will be allowed under the terms of licence(s) to be announced, and charging will probably be allowed in line with existing or new regulations;
- disclosed datasets will normally have to be published (and kept up-to-date) under an authority’s publication scheme;
- publicly-owned companies owned by more than one public authority will no longer escape FOI;
- Information Commissioners will serve only one 7-year term; and
- expect the Information Commissioner’s Office to start charging for training and conferences.
Key changes to FOIA are:
- extending the regime to cover subsidiary companies even if not wholly owned by a single public authority – a significant gap in the original legislation; and
- imposing an obligation on public authorities to disclose datasets in a reusable format. The definition of dataset is likely to capture research data pre analysis, which is understandably causing concern and is currently the topic of heated debate in the House of Lords.
The Bill will extend FOIA to more bodies and will increase the obligations on all bodies covered by FOIA. In the context of the wider Government changes proposed for transparency and Information Commissioner’s Office (ICO”) consultations, the impact of the changes on the majority of education institutions which are public authorities for the purposes of FOIA will be potentially complex and onerous. They will affect not only those institutions but also those working with them.
Release and use of Dataset: New rules from 1 September 2013
From 1st September 2013 public authorities will face new obligations when it comes to the release and re use of datasets. The key points are:-
- There will be a new duty on public authorities, when releasing datasets, to adhere to any request to do so in electronic form which allows their re-use where reasonably practicable.
- Any dataset containing copyright material (where the authority holds the copyright) must be made available for re-use under a specified licence.
- Publication schemes will, in future, contain a requirement to publish datasets, which have been requested, as well as any updated versions.
- Such datasets will also have to be published in an electronic form capable of re use and any copyright material must be available for re use in accordance with the terms of a specified licence.
- Public authorities will be able to charge a fee for allowing re use of any datasets containing copyright material.
It is important to note that the changes do not give new rights of access. They are concerned with format and the ability to re-use datasets, once the public authority has decided that no exemptions or other provisions (e.g. costs, vexatious) in the legislation apply.