Tag Archive for Information Commissioner

Nothing flopsy about this RoPSI

FOIMan finds the Holy Grail of a first decision under the Re-use of Public Sector Information Regulations.

A rabbit

Careful…it could turn at any minute.

Ever since the first Re-use of Public Sector Information Regulations became law in 2005, I’ve known them as RoPSI. This has always amused me as I envisage them as a cute little bunny rabbit. Flopsy RoPSI. Bless.

But in fact since 2015 they’ve had more teeth – think more of the blood-thirsty fur-ball in Monty Python and the Holy Grail. The 2015 regs require public authorities to allow re-use of information on request in most circumstances. And what’s more, they bring the full range of FOI enforcement options to bear on re-use. Which are of course wielded by the Information Commissioner.

That said, we haven’t seen the Commissioner use these powers in anger – until now. The first decision notice has been issued in relation to RoPSI. It criticises Cambridgeshire County Council for imposing unnecessary restrictions on the applicant for re-use of right of way data.

Cambridgeshire had allowed the re-use of the data under a licence which was limited to one year, and appeared to limit re-use to the applicant alone. These were problems for the applicant as the intention was to use the data on an open mapping website where it might then be further re-purposed by others. They had also reserved the right to charge for re-use but had waived the charge on this occasion.

One of the council’s concerns was that the intellectual property of the Ordnance Survey (OS) would be breached, which was soon dismissed when the OS told the ICO that they had no problem with rights of way data being re-used under the Open Government Licence (OGL). Another was that the data itself would soon be updated. The council was imposing the one year licence so that the applicant would be forced to update their map after a year. The ICO pointed out that the OGL requires those reusing data to publish data with a caveat warning that the data might not be accurate. This should be sufficient to meet the council’s concerns.

The council’s position was also undermined by the fact that other councils allowed re-use under the OGL. Taking all this into account, the Commissioner concluded that the licence terms were unnecessarily restrictive. It appears that when it comes to licensing of public sector data, public authorities will need good reasons not to apply the OGL.

Unfortunately the issue of whether the council could charge for re-use wasn’t examined because the council hadn’t charged in this case. I suspect that if it had been looked at, the Commissioner would not have been sympathetic to a charge. Under RoPSI, in many circumstances, only “marginal costs incurred in respect of the reproduction, provision and dissemination of documents” can be charged for re-use. Take note those tempted, like Cambridgeshire, to adopt the National Archives’ “Charged Licence” when responding to re-use requests.

The Commissioner was also critical of the council’s tardiness in responding to ICO enquiries (and indeed considered whether they had failed to deal with the original request ‘promptly’). The decision notice threatens that in future the Commissioner will be prepared to require information under her statutory powers at s51 of FOIA, and suggests that the council should consider whether sufficient resources are in place. It’s clear the Commissioner has been less than impressed with the way that Cambridgeshire have dealt with her enquiries and this request for re-use.

This first decision notice under RoPSI sends out a signal that, as with FOIA and data protection, the ICO means business under their new Commissioner.

Should Cambridgeshire disagree with the Commissioner, they need only appeal to the First Tier Tribunal. Unless they have access to the Holy Hand Grenade of Antioch, of course.


I’ll be covering re-use and the Re-use of Public Sector Information Regulations on my Practical FOI Skills and Transparency Requirements course for Act Now Training.

References:

Decision notice FS50619465 (Cambridgeshire County Council)

Re-use of Public Sector Regulations 2015

Open Government Licence v.3

Delving Deeper into Denham’s Drive for a Duty to Document

FOIMan examines the Information Commissioner’s proposals for a new duty to document.

In December, the Information Commissioner, Elizabeth Denham, gave a speech at an event celebrating 250 years of freedom of information. During the speech Ms. Denham indicated that she wanted the government to legislate for a “duty to document”.

I wrote briefly about this at the time. But in my latest piece for PDP’s Freedom of Information Journal (available here), I’ve looked further into the Information Commissioner’s proposals.

Amongst the issues explored are:

  • what effect FOI has had on public sector records management;
  • how the Information Tribunals have dealt with the issue of records management;
  • what problems is the Commissioner seeking to resolve;
  • what tools are available to the Commissioner now;
  • and finally, are there any existing duties to document along the lines that Elizabeth Denham suggests?

What would an archivist do as information commissioner?

FOIMan reports on his first encounter with the new Information Commissioner.
Elizabeth Denham, Information Commissioner

Elizabeth Denham, speaking at the FOI at 250 event

One of the things that struck me most when Elizabeth Denham was appointed Information Commissioner earlier this year was her background. After the career bureaucrat that Chris Graham represented, her background as an archivist and records manager seemed particularly refreshing. And not least because that’s (ahem) my background too. One of the things I’ve been wondering ever since is whether, and how, this would affect her approach as Commissioner. What would an archivist use the position of Information Commissioner to achieve?

Last night I was fortunate to be able to attend a panel discussion celebrating the 250th anniversary of FOI, and the answer was forthcoming. It was my first opportunity to hear Ms. Denham in person. She drew a clear line in the sand with what had gone before. In particular she laid out two aims in relation to FOI.

Firstly – and a thousand archivists punch the air – she announced that she would be seeking to persuade government to introduce a statutory record-keeping requirement. In answers to questions it became clear that she saw this as an answer to the decline of registries. She also mentioned other jurisdictions that already have this kind of legislation, notably in Australia.

Secondly – and a hundred thousand FOI campaigners punch the air – she indicated her intention to pursue the extension of FOI to private sector contractors. “We should extend the right to know about public service so it is independent of the service provider”, she said.

Ms. Denham told us that Parliament would receive a report from her office in 2017 pushing both of these agenda. This is a Commissioner like we’ve never seen before – a campaigning, activist ombudsman. Whether it will achieve more than the pragmatic, softly, softly approach that appeared to characterise her predecessor we will have to wait and see. But it is certainly a refreshing and exhilarating change.

With thanks to Article 19 and the Information Law and Policy Centre at the IALS for organising the event.

Is the ICO fit for purpose?

FOIMan summarises the outcome of the government’s long-awaited Triennial Review of the Information Commissioner’s Office.

The government has finally published its Triennial Review of the Information Commissioner’s Office (ICO). The long-awaited report concludes that:

  • the ICO still has an important role to play
  • it needs to adjust to the challenges of developing technology
  • it should still report to a sponsoring department in government rather than the Commissioner becoming an officer of Parliament
  • its structure should change to a board of commissioners – in line with a recommendation made by the Leveson Inquiry
  • the government and ICO should quickly agree a more sustainable funding approach especially for DP activities.

Along the way, the report highlights criticism from many stakeholders which is familiar to long-term observers in this field – that the ICO aren’t tough enough at enforcement, that they go for the easy targets, and that the quality of guidance and assistance from the ICO can be inconsistent and sometimes poor. Nonetheless the report also discusses the achievements of the ICO in reducing backlogs and providing necessary expertise. It also recognises some of the challenges that the ICO has faced in recent years.

Overall, I suspect the ICO won’t be unhappy with the report and especially the recognition that whilst changes are necessary, government needs to put its hand in its pocket to pay for a more effective regulator. For more details, read the published report.

Source: Triennial Review of the ICO, 8 November 2016

Postscript: the government has rejected the proposal to restructure the ICO as a multi-commissioner board.

Source: statement by Minister of State for Digital and Culture, Matt Hancock MP

 

News Flash: new Information Commissioner announced

The Department for Culture, Media and Sport has announced that their nomination to take over from Christopher Graham is Elizabeth Denham.

NEWS1Ms. Denham is currently the Information and Privacy Commissioner in British Columbia, Canada. This would be the first time that a UK Commissioner would be appointed from overseas. It won’t be the first time that we will have a female Information Commissioner – Elizabeth France was the Commissioner at the time that both the Data Protection and Freedom of Information Acts received Royal Assent.

The current Commissioner has welcomed the nomination:

“Elizabeth Denham is an inspired choice for Information Commissioner. As commissioner for both privacy and access to information in a similar jurisdiction, Elizabeth has shown independence of judgement and toughness of character. She will be a great leader for the ICO as it adapts to the demands of the new data protection framework – and she’ll be an effective upholder of information rights both in the UK and internationally.”

Ms. Denham will have to go through a pre-scrutiny hearing from the DCMS Select Committee, but if all goes well, the Queen will appoint the new Commissioner by Letters Patent later this year. Once this process is complete, the new Commissioner will take office in June this year. Following changes made by the Protection of Freedoms Act in 2012, Elizabeth Denham can serve a single 7 year term as Information Commissioner.