Should we license re-use under FOIA or the RPSI?

As well as requiring public authorities to provide datasets in a form that is technically capable of re-use, the dataset provisions also create a duty, in certain specified circumstances, to provide them under a licence permitting re-use.

11A Release of datasets for re-use
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(2) When communicating the relevant copyright work to the applicant, the public authority must make the relevant copyright work available for re-use by the applicant in accordance with the terms of the specified licence.

Most requests for permission to re-use public sector information are dealt with under the 2015 RPSI regulations. This includes licensing the re-use of that information. The FOIA provisions on licensing only apply in situations where the RPSI do not cover the dataset. This section explains how to decide whether FOIA or the RPSI applies. The flowchart in Annex 1 also shows how the RPSI relates to the process of releasing datasets for re-use.

The duty to license the re-use of datasets released in response to a FOIA request is in section 11A. Subsection 11A(1) sets out the conditions in which it applies, but subsections 11A(1A) and 11A(1B) set out exceptions to this, where the RPSI applies instead.

11A Release of datasets for re-use

(1) This section applies where—

(a) a person makes a request for information to a public authority in respect of information that is, or forms part of, a dataset held by the authority,

(b) any of the dataset or part of a dataset so requested is a relevant copyright work,

(c) the public authority is the only owner of the relevant copyright work, and

(d) the public authority is communicating the relevant copyright work to the applicant in accordance with this Act.

(1A) But if the whole of the relevant copyright work is a document to which the Re-use of Public Sector Information Regulations 2015 apply, this section does not apply to the relevant copyright work.

(1B) If part of the relevant copyright work is a document to which those Regulations apply—

(a) this section does not apply to that part, but

(b) this section does apply to the part to which the Regulations do not apply (and references in the following provisions of this section to the relevant copyright work are to be read as references to that part).

All the four conditions in section 11A(1) must be met before the duty to licence the re-use of the dataset under section 11A(2) applies. Those conditions are as follows:

The requester must make a request for information that is (or is part of) a dataset that you hold. The requester does not have to have specifically referred to a ‘dataset’ in their request.
The dataset or any part of it is a ‘relevant copyright work’. If someone requests information and you hold that information as a dataset (or a part of one) and any of that dataset (or any of that part) is a relevant copyright work, then this condition is satisfied. The term ‘relevant copyright work’ is explained below.
You are the only owner of the relevant copyright work. You cannot license the re-use of a dataset if you don’t own the intellectual property in that dataset.
You are providing the dataset to the requester, ie the information is not exempt from disclosure under one of the FOIA exemptions.

The key terms used here are defined in section 11A(8):

A ‘relevant copyright work’ is a copyright work ¹ or a database ² subject to database right ³, but it excludes a relevant Crown work or a relevant Parliamentary work.
A ‘relevant Crown work’ is one where the Crown is the copyright owner or the owner of the database right.
A ‘relevant Parliamentary work’ is one where the House of Commons or the House of Lords is the copyright owner or the owner of the database right.

The exclusion of relevant Crown work means that they are not covered by section 11A(2). Therefore, if the dataset is a Crown-owned work, there is no requirement to license its re-use under s11A(2). However, such datasets are already available for re-use by authority of the Controller of HMSO.

If the four conditions in section 11A(1) are satisfied, then you need to consider whether the RPSI apply to the dataset or to the relevant part of the dataset.

Firstly, the RPSI apply to public sector bodies, as defined in regulation 3 of the RPSI. Many FOIA public authorities are also public sector bodies under RPSI. However, some are not, like schools, colleges and universities (although university libraries are covered). You therefore need to establish whether you are a public sector body as defined by regulation 3.

Secondly, the RPSI only apply to information that is part of the ‘public task’ of the public sector body. The public task includes the authority’s core role and functions as defined in legislation or established through custom and practice. As referenced above in Service or function, datasets are information recorded or obtained in connection with providing services and carrying out functions. So, if a dataset meets that criterion, it is likely that it will also form part of your public task, for the purposes of the RPSI.

If the RPSI do apply, then because of the exceptions in section 11A(1A) and (1B), you must deal with the licensing of the dataset for re-use under the RPSI. The following sections of this guidance, which deal with licensing and re-use fees under FOIA, will not be relevant for you. Instead, you should consult our brief Guide to RPSI and the detailed guidance produced by the National Archives.

If the RPSI do not apply, then you must deal with the licensing of the dataset under FOIA (provided the four conditions in FOIA section 11A(1) are met). The following sections explain the FOIA provisions on licensing datasets for re-use and charging re-use fees.

³ As defined in Part 3 of the Copyright and Rights in Databases Regulations 1997 S.I. 1997 No.3032