This is not a ROPSI
FOIMan looks at a cuddly sounding piece of legislation that features in some FOI responses – and causes confusion.
The Re-use of Public Sector Information Regulations 2005 are not the best known piece of UK information rights legislation. I’ve always referred to them as ROPSI, which has the effect of making them sound like an endearing furry animal. But some requesters are starting to see them (not unreasonably in the context) as a pest – more Roland Rat than Peter the Rabbit.
Both clients and Twitter users have told me that they’ve received responses to their FOI requests containing something along the following lines:
“If you re-use the information you have requested, in whole or in part, please write to…stating how you want to re-use the information. We will then write to you within 20 working days with any conditions and charges that relate to the re-use…”
Often the regulations themselves will be cited, perhaps in conjunction with a warning that the public authority retains the copyright in the material. If you’re a journalist or a campaigner, the last thing you want to hear is that you might have to wait a further 4 weeks to be given permission to publish information received in response to an FOI request which may well already have taken many weeks to obtain.
So do you have to ask for permission? Well, let’s look at some facts here.
If a public body has disclosed a document that it created, then it is true to say that it retains the copyright in that document. So if you’ve received a 30 page report, and then published it on a website, and you’re a member of the public, then in theory at least, you might be opening yourself up to legal action from the authority (or if it was received from a third party, eg a company tendering for business with the public authority, perhaps that organisation). Technically you would be breaching copyright.
But there are some important caveats to this. In order to attract copyright protection, any work has to be “substantial” – it is highly unlikely that a response consisting of a number (eg as in the answer to “How many FOI requests were received by the authority in 2013?”) will attract that protection.
Copyright law contains exemptions and defences that can be utilised. One of these is for news reporting – so journalists, and arguably campaigners issuing information as part of a press release, should be able to publish information they’ve received through FOI without fear. Another exemption is for criticism or review, and the Information Commissioner has suggested that publication of disclosed information may well avoid infringement of copyright law on this basis.
Personally I think the use of these paragraphs in many FOI responses is at best an attempt to cover the authority’s ignorance of its intellectual property rights, and at worst, part of what I’m starting to see as a growing trend of using any facility, however spurious, to try to limit FOI and put people off using it. It’s in the same stable as warning potential requesters that they can be charged for FOI requests, even though the practical reality is that there are very limited circumstances in which this can be done.
That’s not to say that there aren’t circumstances when it would be wise to ask for permission before publishing or re-using information received from a public authority. If you’re wanting to re-use information for commercial purposes – to make money from it – you may well be advised to seek permission if you haven’t already been granted a licence. But it is unlikely that most requesters will have these intentions, and sticking a standard notice in every response, whether relevant or not, is not the way to highlight such requirements.
And what of ROPSI itself? The aim of the regulations was to encourage more re-use of information “by removing obstacles that stand in the way of re-use”. They are very close, in terms of legislative agenda, to the dataset re-use provisions introduced by the Protection of Freedoms Act. They’re supposed to be making it easier for people to re-use information.
The datasets provisions at s.102 of the Protection of Freedoms Act (amending s.11 of FOIA), require authorities to issue a licence for re-use of datasets at the time of issuing the FOI response (or to indicate what conditions they might apply if they intend to charge for re-use). The default licence is the Open Government Licence – allowing the requester to re-use the information as they see fit, more or less. To me, this indicates the direction that the Government wants all public authorities to go in – and it isn’t towards putting hurdles in the way of re-use.
Interestingly, the Government is currently revising the ROPSI Regs (which, like the Environmental Information Regulations, derive from an EU Directive), and it seems at least likely that they will transpose the spirit of FOI’s dataset requirements. So perhaps ROPSI the Rat will become a thing of the past.