On 26 June 2013, the EU adopted Directive 2013/37/EU which amends existing Directive 2003/98/EC on the re-use of public sector information (the “Re-use Directive“), creating a harmonised regime for the re-use of public sector information (“PSI“) by private businesses and individuals across Member States.
Among other things, the amendments will:
- create a right to the re-use of PSI. (Under the existing regime, the requirements of the Re-use Directive only apply where public sector bodies choose to make documents available for re-use; however, there is currently no obligation on public sector bodies to make documents available in this manner). The amendments will impose, for the first time, a mandatory obligation on Member States to allow the re-use of existing documents held by public sector bodies that are generally accessible, subject to a number of limited exceptions;
- massively extend the scope of the Re-use Directive so that it applies to information held by museums, libraries and archives (bodies that are expressly exempt from the existing regime); and
- amend the rules on charging for re-use of PSI, narrowing the number of public sector bodies that, in addition to the marginal costs incurred in reproducing, providing and disseminating the relevant information, can charge a sum for re-use that reflects a “reasonable return on investment”.
While already implicit in the Re-use Directive, which provides that it is without prejudice to the existing access regimes in Member States, the new amendments expressly exclude from the scope of the Re-use Directive “documents access to which is restricted by virtue of the access regimes in the Member States”, including where such access is excluded or restricted on the grounds of protection of personal data. In other words, the amendments do not create new rights of access, or provide a way to circumvent exemptions or prohibitions against disclosure under existing freedom of information and data protection legislation. The existing exemption for documents in which third parties hold intellectual property rights, such as copyright in photographs and illustrations commissioned by public sector bodies, is also maintained, although special rules apply where the intellectual property rights are held by libraries, museums and archives.
The existing regime
The Re-use Directive entered into force on 18 November 2003. It established minimum rules for the re-use, and the practical means of facilitating re-use, of certain categories of documents held by public sector bodies in Member States.
In the UK, it is implemented in national law by the Re-use of Public Sector Information Regulations 2005 (the “Re-use Regulations“), and the National Archives, responsible for implementation of the Re-use Regulations, has published a guide to the Regulations and best practice. The guide contains illustrative lists of the bodies that are subject to the Re-use Regulations and the type of information that is available for re-use. Such bodies include: government departments, local authorities, the NHS, the MET Office, Ordnance Survey, and police, fire and rescue authorities.
Implications for the UK
Member States must transpose the new Directive into national law by 18 July 2015. For the UK, this will likely require the updating of the Re-use Regulations and the associated re-use provisions in FOIA. The Government’s response to the Shakespeare Review – which explored the growth opportunities for, and how to widen access to, the wealth of information held by UK public sector bodies – indicates that legislation to implement the Directive will be brought forward in 2014-2015.
The ability to re-use public sector information is recognised as a central plank of digital transparency, e-government and open data innovation. Currently, UK public bodies are not obliged to permit the re-use of information under the Re-use Directive (or the Re-use Regulations), even where such information has already been disclosed to the applicant pursuant to domestic information access legislation, such as under FOIA. The amendments introduced by the new Directive will therefore close the existing gap between rights of access and the rights to reuse. Among other things, the amendments are intended to kick-start the development of new services based on novel ways to combine and make use of PSI and private information.
The imposition of an obligation on public sector bodies to allow the re-use of their information, and the extension of the scope of the Re-use Directive to include museums, libraries and archives, should provide a wealth of opportunities for private businesses and individuals to leverage public sector information, which may not yet have been fully exploited, and to combine it with privately-owned data and IP in new and innovative ways.
The Deloitte analysis that accompanied the Shakespeare Review quantified the direct value of the UK’s PSI at around £1.8bn with wider social and economic benefits taking that up to around £6.8bn. The new Directive will help to unlock not only the economic value present in the UK’s PSI, but also the value in the PSI of the other 27 Member States.