Member Article

Great fanfare surrounded the introduction of the Freedom of Information Act and the Freedom of Information (Scotland) Act 2002 a year ago. The FOI legislation was hailed as a success in changing the culture of government. But while most public sector organisations have now come to grips with the workings of the FOI legislation, many have overlooked an associated set of regulations that came into effect at the start of this summer. The Re-use of Public Sector Information Regulations 2005 ("ROPSI") quietly came into being in July 2005 to promote the re-use of information produced and held by public sector organisations. ROPSI complements, but is distinct from, the FOI regime. In essence, FOI legislation provides for access to public sector information while ROPSI addresses the question of its re-use. The public sector collects and collates a vast array of information that could be valuable to a wider market, such as scientific research, codes of practice, patent information and statistics. The impetus behind the regulations is to encourage the development of a secondary market in this information, including computer databases - although not computer programmes - and audio and video recordings. ROPSI is designed to implement the European Union Directive 2003/98/EC on the Re-use of Public Sector Information, which also came into force on 1 July 2005. The Directive was meant to stimulate the latent market relating to information held in the public sector in Europe. This market is largely unexploited in Europe due to the considerable differences in rules and practices of Member States in the exploitation of public sector information and the high level of restriction on re-use compared with other jurisdictions, in particular the United States. The European Commission estimates that between 15 and 25% of data used in e-commerce trading and information products are based on public sector information. The annual turnover of the information and publishing industries in Europe is estimated to be 68 billion euros. However, the turnover of the US information industry is about five times that size, in spite of the fact that the respective economies and populations are more or less the same. The value of PSI to the US economy has been estimated to be in the region of $750 billion. The purpose of the Directive and the Regulations is to establish commons standards to promote smoother running of the internal market and stimulate the expansion of information industries across Europe. Both the FOI legislation and ROPSI require public bodies to change the way in which their information systems are set up, along with some of their working practices. Previously there was a presumption in favour of public sector information being for official use only. FOI now confers a right of access to public sector information but it does not provide any right to re-use that information. That potential lacuna is now filled by ROPSI, which provides a framework to enable for the re-use of such information. There is no requirement on a public body to allow re-use of its information, and re-use can be allowed subject to reasonable licence terms and conditions, including payment. But once a public body has identified information as being available for re-use, then it must take a consistent approach between all potential users of the information so as not to be unfair or limit competition. In particular, ROPSI provides that public sector bodies should not enter into exclusive arrangements that would prevent others from re-using the information. Requests for re-use under ROPSI are subject to a regime very similar to that for FOI requests and public bodies should dovetail their management of the two regimes. ROPSI requires public bodies to publish a list of information generally available for re-use together with information on any applicable conditions for re-use and charges that may apply. This requirement is similar to the requirement in FOI legislation for public bodies to have a publication scheme. ROPSI also sets out a process for dealing with requests for re-use. These state that: all requests be made in writing; public bodies deal with requests within 20 working days and requests are processed electronically where possible. ROPSI contains a limited number of allowing a public body to refusing a request for re-use. Public bodies must also have in place an internal complaints process for dealing with complaints under ROPSI. Only six months after implementation, the true impact of ROSPI remains to be seen. It is certain, however, that understanding of the synergies between FOI legislation and ROSPI is a valuable asset for public and private sector organisations alike.

 

Footnotes: Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn. +44 (0)131 473 5382