Protection of Freedoms Bill

Baroness Sharp of Guildford Excerpts

Thursday 12th January 2012 Grand Committee

[Lord Bew]

My Lords, I rise briefly to support Amendment 148A, in particular, and to make the point even more starkly that in an era when these requests are more and more common, unless some protection for universities, as envisaged in the amendment, comes in, there will be an implicit negative tax on research, as researchers will have to take these possibilities into account. That is the last thing that our universities need at present. I support Amendment 148A very strongly. The real cost of complying with the requests that currently come in is a stark issue.

[Baroness Sharp of Guildford]

My Lords, I, too, rise briefly to support the amendments in the name of the noble Baroness, Lady O’Neill of Bengarve. My experience now is somewhat dated, but back in the early 1990s I was responsible for supervising a group of researchers putting together a substantial database on bibliometrics. The difficulties of cleaning up such a database are extreme and costly. The group of four young researchers I was supervising worked for two or three years in just cleaning up the database. One issue that we were looking at then was the advantage of concentrating research into large laboratories rather than having a lot of smaller researchers. You cannot do such research until you have cleaned up the database. Someone coming in and using your data is clearly something that we need to protect against. We also need to make sure that the costs involved in putting databases together are fully met.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I start by saying that I am very grateful to the noble Baroness, Lady O’Neill, for her opening remarks when she talked about discussions that have already taken place. I understand her concerns. I understand them now possibly in spades as I look at the serried ranks of academe facing me. I ought to make it clear that further discussions will have to take place between now and Report as there are real concerns in the academic and research community. The noble Baroness, Lady Warwick, reiterated concern about costs and her noble friend Lady Blackstone referred to burdens on academe. Concern was expressed about safety, particularly for those involved in research relating to animals. I can well understand that, having had some responsibility for that issue when I was a Minister in Defra.

I shall try to explain our intention behind Clause 100 and what we initially think of the amendments. I should make it clear that I am more than happy to have another meeting with the noble Baroness and any others who wish to come along, as we want to ensure that we get this right and can meet those concerns. I shall say a few words about the background to Clause 100, particularly as this is the first amendment in the group. I shall not go on at this stage to Amendment 151, to which the noble Baroness referred, as I had better do that when it is moved in its proper place.

Clause 100 gives effect to the Government’s commitment to provide greater transparency and create, in particular, a new right to data so that government-held data sets can be requested, used by the public and published regularly. We believe that that will help the public and organisations to hold the Government to account. It will redirect and shape public services to reduce the deficit and deliver better value for money in public service spending. It will realise significant economic benefits by enabling individuals, businesses and not-for-profit organisations to build innovative applications using that public data.

The Freedom of Information Act 2000 currently provides for the release or publication of the recorded information held by public authorities covered by the Act but makes no provision for reuse at the point of publication or release. It requires only the provision of access to the information and only upon request, which means that repeat requests have to be made over a period of time to gain sets of information or data. There is no obligation for public authorities to provide such data in an electronic format that promotes reuse—for example, machine-readable or open, standard format. I note the comments of my noble friend Lord Lucas about his trials and tribulations with the university sector, particularly with its use of PDF, which causes him problems.

These changes to the Freedom of Information Act, as set out in Clause 100, are intended to promote the proactive release of more data sets and to ensure that when data are released they are in a reusable format and, where possible, free for reuse. This will, in turn, promote the use and development of the raw data held by public authorities to provide useful products and services.

Additionally, the Government announced their intention to ask Parliament to undertake post-legislative scrutiny to see how well the Act is working in practice and whether there are any further changes to be made. In advance of this, the Government must act on their commitment to transparency and open data to release the benefits of open data to the public as soon as possible. There will be further post-legislative scrutiny to see how well that Act is working, and we will come to that in due course. When we have that, we can respond.

I turn now to the amendments in this group and will deal with them, but I repeat the commitment I made at the beginning that I am more than happy to discuss these in greater detail afterwards with whoever the noble Baroness wishes to bring along. Amendment 147A seeks to add the word “complete” to the definition of data sets allowed to be requested. However, I believe that the use of the word “complete” would not improve the definition of data set and could introduce a degree of uncertainty and confusion around the operation of this provision. For example, data sets may be continuously updated depending on the publication scheme set out by a public authority, and one could argue that a particular data set is never complete per se. The Government do not wish to be overprescriptive on this matter and defer judgment to the public authority to decide when its data are ready to be published in the interests of all parties.

I appreciate that the noble Baroness raised concerns at Second Reading in respect of these provisions, and we have exchanged correspondence and had meetings in response to her concerns about the potential impact on the higher education research community, which has argued that some of its data would be releasable in transient form until final publication. I reassure the Committee that Clause 100 as it stands does not alter the status quo in relation to the release of information in draft or of incomplete status, and such information is already adequately protected by existing exemptions under the Freedom of Information Act. Furthermore, the Information Commissioner’s office has produced specific guidance for higher education institutions by recommending those institutions to have a robust information management regime that will tackle issues about disclosure of data that is incomplete or in a draft form.

Similarly, Amendment 147B, which amends new Section 11(1A) of the Freedom of Information Act, is unnecessary as the provision already covers the circumstances that the amendment seeks to specify. The duty to provide a data set to the applicant in a reusable format, as currently drafted, adequately covers the effect of a public authority undertaking to provide the data set as requested in a reusable format. We consider that Clause 100 and the Freedom of Information Act as a whole already make adequate provisions for charging and that the noble Baroness’s Amendment 148A is not appropriate or necessary. Further, the Government will be providing guidance in the revised Section 45 code of practice on reusable formats and on when it will be considered reasonably practicable for a public authority to convert a data set into a reusable format for release, so that it will be clear what should be expected for both the data holder and the requester. The costs for releasing a data set in a reusable format falls to the public authority, as does releasing other information under the Freedom of Information Act, and the same freedom of information provisions apply here in terms of releasing that information.

With regards to the noble Baroness’s Amendments 148C and 148E, which seek to amend the definition of a data set, we consider that the current definition provided for in Clause 100 is fit for purpose. We do not believe that it would be sensible to introduce further limbs into the definition of a data set as, inevitably, the addition of any new terms, such as “data integrity and security”, could raise as many questions as to their meaning as the terms which they are intended to clarify. We believe that it is preferable to address such matters through the supplementary guidance for public authorities, which will be provided in the revised Section 45 code of practice.

As regards Amendment 148, in the name of my noble friend, I take a similar view. It seeks to define what is meant by the term “capable of reuse”. Again, we believe the appropriate place for any necessary clarification of the terminology used in the clause, and of the reusable formats to be adopted, is in the revised code of practice, which will be produced under Section 45 of the Freedom of Information Act.

We will be revising the statutory code of practice to provide greater clarity on certain aspects of these provisions. Among other things, the revised code will provide guidance on what constitutes a reusable format and sets out those factors that a public authority should take into account when deciding whether it is appropriate to include a data set in a publication scheme. We will also issue administrative guidance to central government on best practice.

On my noble friend’s Amendments 149 and 150, it is important that the changes we are making preserve existing regimes, specifically when it comes to charging for reuse of copyright material. Currently, public sector bodies under the Re-use of Public Sector Information Regulations may charge on a reasonable return of investment basis, and the policy is to maintain the status quo. Maintaining this right continues to allow public authorities the flexibility to charge should they wish and, where justified, in accordance with the Treasury’s guidance, Managing Public Money, which we all take enormously seriously.

We would expect, as now, most data sets to be provided free of charge for reuse but it is right that public authorities should, in appropriate cases, be able to charge. Any such charges would normally be set at the level necessary to recover costs, and no more, but fees can be set at a level to provide for a reasonable return on that investment. This would be appropriate in circumstances where the public sector has followed the Treasury’s guidance, Managing Public Money, and its accounting principles, and has taken into account the value of that data set and the costs incurred in resourcing the collection of the data.

With regards to my noble friend’s Amendments 148B and 148D, I would respectfully recall the reasoning behind the clause whereby the intention is to create a new right to data through the request for data sets for reuse and, where reasonably practicable, in a reusable format. The extension as proposed in my noble friend’s amendments goes beyond the realm of data sets and therefore is not appropriate in this instance but may be considered, again, as part of the post-legislative scrutiny that we are offering on the Freedom of Information Act which is currently under way.

--- Later in debate ---

[Lord May of Oxford]

I express my approval of the amendment. I would go beyond the noble Baroness, Lady Blackstone, in saying that I understand science to embrace the social sciences within it. In this case, it goes wider than that in extending increasingly the large areas of the humanities that use large databases. It is a really important problem and the spirit of this amendment addresses it in a significant way. I very much hope that all that has been said here is taken to heart.

[Baroness Sharp of Guildford]

I would like to say very briefly how much I support this amendment. The noble Baroness, Lady Blackstone, asked the Minister expressly whether he had looked at the Scottish and Irish legislation. I would bring his attention to the American situation, because we followed America in introducing a Freedom of Information Act and we also regard that country as being foremost in terms of publications and citations in scientific and social science research. We follow America in many senses, but it has specific legislation that has guidelines providing the constraints that we are looking for. It seems sensible to have an exemption, as in the Scottish model that we can follow, which has over the past few years been satisfactory. It would be easy to follow, and it picks up all the reservations that those of us had who spoke in favour of the amendments proposed by the noble Baroness, Lady O’Neill. It picks up a lot of the points made by those amendments and puts them neatly into one clause. I support the amendment and hope that the Minister and his advisers are looking at the models in other countries.