The UK Ministry of Justice has drafted a Code of Practice (Datasets) to help public authorities implement changes to the Freedom of Information Act expected to take effect in April. These changes, introduced via the Protection of Freedoms Act, require public authorities to provide datasets in a re-usable format and with a licence for re-use, where reasonably practicable.
I wrote about these amendments back in February, when they were at the Bill stage. I took the view then that the proposals presented a threat to open data interests and were likely to encourage more charging for public sector information. There is nothing in the enacted provisions or in the draft Code of Practice to change my view.
Although there was no formal public consultation on the FOIA changes themselves, the MoJ recently ran a consultation on the Code of Practice (Datasets) via a commenting system on the Data.gov.uk website. That consultation closed this week and the comments have now been hidden. However you can still read the draft Code itself and the explanatory material.
These are the general comments that I submitted to the Code of Practice (Datasets) consultation:
I am generally not content with the Code of Practice (datasets), since I disagree with the underlying approach. I think it is a fundamental error to pursue licensing for re-use of data through the FOIA request process, and to conflate access with re-use. I view this approach as a tactic designed to undermine the more robust rights regime articulated in the PSI Regulations.
That said, I would like to endorse in its entirety the consultation response submitted by the Open Data Institute. In particular I strongly support the ODI’s recommendation that the Code should be used to re-enforce open data licensing (and the Open Government Licence) as the default approach to re-use of public sector information.
Following are some additional comments and suggestions:
- Public authorities may receive requests for re-use of information where access is subject to the Environmental Information Regulations (EIR) rather than FOIA. The ‘right to data’ amendments in the Protection of Freedom Act do not explicitly apply to EIR requests. However in most other respects public authorities are accustomed to treating FOI and EIR requests in a similar manner. It would be sensible to state in the Code that the 'right to data’ should be applied to EIR requests also, at least as a matter of informal best practice.
- The Code of Practice should note, as a reminder to the public authority, that it may also receive requests for re-use of information that are not attached to an access request. The requestor may wish to re-use data that is already accessible, just not licensed.
- The Code of Practice should reinforce the primacy of the access request over any additional considerations relating to re-use of the data. In particular the Code should remind public authorities of their responsibility to meet the statutory timescales for providing access to the data (subject to any exemptions), even if that means the data cannot immediately be provided in a re-usable format and/or a decision on licensing has not yet been made.
- Lack of clarity in the Code of Practice on what constitutes a re-usable format is likely to create difficulties, particularly as this may affect costs attached to the request. For example, although Excel files are not universally considered to be an open format, it would be onerous for public authorities to establish charges simply for converting Excel files to another format such as csv.
Overall I found the draft Code of Practice to be rather slight as a guidance document, particularly as the target audience is likely to be FOI practitioners who may not have an in-depth knowledge of licensing and re-use issues. Although the draft was supposedly produced “in consultation with” the Information Commissioner’s Office it has less substance than comparable guidance on other FOI provisions available from the ICO.
The value of the consultation exercise is also rather questionable given that the Fee Regulations have not yet been published. If those regulations give public authorities carte blanche in setting fees for re-use of data, any other good practice arising from this guidance will be irrelevant.
The Open Data Institute’s submission makes a solid argument for revising the draft Code to encourage public authorities to publish open datasets. The MoJ could support open data by drafting Fee Regulations that re-enforce the expectation that public authorities will release datasets either without charge or at marginal cost. However I will be surprised if that happens. Under the current Government the Ministry of Justice has shown little support for open data or for public information rights in general.
The ODI’s suggested re-wording is good:
The Act and the Code are intended to increase regular publication of up-to-date datasets, in a re-usable format, and licensed to encourage their reuse. This Code requires public authorities to publish data that they manage in a reusable format and as open data. The Act does not require datasets to be maintained or updated if they would not otherwise be updated as part of the public authority’s function.
although I would personally like to see “maximise” in place of “encourage”. Public authorities will often say that their data charging policies encourage re-use, but it is more difficult to refute the argument that an open data approach maximises re-use.
I very much like the ODI’s idea that public authorities should be required to publish a cost/benefit analysis, if they want to charge for data instead of applying the Open Government Licence. (Of course this would reverse the onus contemplated by the Government in the terms of reference for the Open Data User Group, which expect applicants to produce a benefit case for open data release.)
I do think there is more work to be done on what we consider to be re-usable formats for the purpose of guidance to FOI practitioners. The vagueness of the Code on this point is likely to create difficulties. However I also differ in some respects with the ODI recommendations.
The statement in the draft Code that “a re-usable format is one that is machine readable” is rather dogmatic, and not a universally held view. That is certainly the way IT developers tend to think about re-use of data, and the statement is more likely to be true for large datasets. However many datasets are re-used directly for analysis (i.e. just read and considered) and do not necessary need to be pre-structured.
A particular problem in thinking about re-use in the context of FOI is that the FOI process is supposed to be “applicant blind”. Re-usability may in practice depend on who the applicant is and what they hope to do with the data.
The Code of Practice should encourage discussion based on the specifics of individual datasets. A single dataset may be suitable for a range of different re-uses and there will not always be an ideal format. When in doubt the public authority should try to strike a balance between making the data re-usable and preserving the data in its original context.
We have to be wary in particular of this knee-jerk aversion to “proprietary formats”. That phrase is used in the draft Code as equivalent to a format that does not support re-use. However there are some file formats that remain technically proprietary but are generally considered to support re-use, because the IP owners have undertaken not to assert rights that would limit their wide use.
See for example the Microsoft Open Specification Promise, which applies to the .xls file format. Similarly ESRI’s shapefile format for geographic data is widely treated as open. It is more important to consider interoperability than whether the format is proprietary.
I am firmly of the view that open data licensing should take priority over re-usable formats. If the MoJ is determined to shoehorn re-use into the FOI process, it may be necessary for open data activists to argue for the former at the expense of the latter. If we take a prescriptive approach to formats, some public authorities will feel obliged to spend an unnecessary amount of time restructuring and converting data for release – and they will want to charge for that time.
We will have to wait and see how the Code of Practice (Datasets) shapes up and how much of the feedback from the ODI and others the MoJ takes on board. It will be difficult to judge the seriousness of this exercise until the Fee Regulations have been published, and there may be a case for more substantive clarification from the ICO once the FOI amendments actually take effect.