Summary of responses to the public
consultation on proposals to
implement the Re-use of Public
Sector Information Directive
This summary of responses is published on 8 December 2014
Summary of responses to a consultation carried out by The National Archives.
This information is also available on The National Archives website:
http://www.nationalarchives.gov.uk/information-management/re-using-publicsector-information/psi-directive-transposition/
About this consultation
To: public sector information holders and re-users of public sector information
Duration: From 11/08/14 to 07/10/14
Enquiries to:
Email: standards@nationalarchives.gsi.gov.uk
© Crown copyright 2014.
You may use and re-use the information featured on this website (not including logos)
free of charge in any format or medium, under the terms of the Open Government
Licence v3.0.
Any enquiries regarding the use and re-use of this information resource should be sent
to psi@nationalarchives.gsi.gov.uk
2
Contents
Introduction and contact details
4
Background
5
Responses to specific questions
8
Question 1
9
Question 2
12
Question 3
15
Question 4
17
Question 5
20
The consultation criteria
25
Annex A – List of respondents
26
3
Introduction and contact details
This document is the post-consultation summary of responses to the consultation
paper on the UK implementation of the Directive 2013/37/EU amending Directive
2003/98/EC on the re-use of public sector information.
It will cover:
the background to the report
a summary of the responses to the report
the current situation following this consultation.
Further copies of this report and the consultation paper can be obtained by
contacting
Howard Davies at the address below:
The National Archives
Bessant Drive
Kew
TW9 4DU
Telephone: 020 8392 5330 ext 2357
Email: standards@nationalarchives.gsi.gov.uk
This report is also available on The National Archives’ website:
www.nationalarchives.gov.uk.
4
Background
The consultation on the government’s proposals for the transposition of the
amending Directive on the re-use of public sector information ran from 20 August to
7 October. We are grateful to all those who commented on the proposals.
Methods of Engagement
Feedback on the consultation was encouraged through the following channels:
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Sending the consultation directly to key interested groups
Conversations and meetings
Publication of an Introductory Guide
Articles produced for various sector magazines, bulletins and newsletters
Blogs
RSS feed messages publicising the consultation to interested stakeholders
Social media: Twitter (#PSIUK) and a Knowledge Hub group
Events for public sector information holders
News announcements
Emails inviting feedback
Email submission of responses
There was a limited amount of press and social media coverage and some blog
commentary in response to the consultation exercise.
Since the close of the consultation, we have been considering how best to address
points raised in the responses to the consultation. Once the government response is
settled, it will be possible to publish a draft of the amended regulations.1
Meanwhile, we are working on guidance for public sector bodies to help them
implement the amended Directive and the implementing regulations. When ready,
the guidance will be published on the Information Management pages of The
National Archives website.
We are publishing this summary of responses received now to fulfil the undertaking
given in the consultation to publish a summary of responses within two months of the
close of the consultation exercise. We will provide a further update once final
decisions have been taken and incorporated into draft regulations.
A list of respondents is at Annex A. In the consultation paper we said that we would
not publish responses to the consultation. This approach was adopted in order to
encourage re-users and licensees of public sector information to respond and be
open about the nature of their relationships with the licensing bodies and so allay
concerns that future working relationships could be compromised. However, having
reviewed the responses in detail, none of them seem to raise sensitivities of this sort.
1
The draft Regulations will be published on legislation.gov.uk when they are ready.
5
We therefore intend to publish the responses. Accordingly, we have approached
each respondent and have requested their permission to publish. The responses will
be published simultaneously with this summary on our website at:
http://www.nationalarchives.gov.uk/information-management/re-using-public-sectorinformation/psi-directive-transposition/
Summary of responses
A total of 22 responses to the consultation paper were received. Of these, the
majority (73%) were received from public sector bodies (including cultural bodies,
local authorities, transport authorities, fire and emergency services, health bodies,
central and arms-length government bodies and trading funds). Responses were
also received from members of the public (4.5%), Civil Society and Open Data
groups (9%) and representative professional bodies and associations (13.5%).
Amongst the institutional responses, we received comments from UK-wide bodies,
and bodies operating in England and Wales, Scotland and Northern Ireland.
The charts below provide a breakdown of the responses by sector and by location.
Responses by sector
Public sector (excluding the
cultural sector)
Public sector cultural bodies
Members of the public
Representative bodies
Open Data groups
6
Responses by location
Whole UK bodies
England and Wales
England
Northern Ireland
Scotland
Wales
9
8
Government bodies
7
Local authorities
6
Members of the public
5
Transport
4
Open Data groups
3
Representative bodies
2
Trading Funds
1
Health and emergency services
0
Museums
Libraries
Archives
1 Responses by location and sector
7
Responses to specific questions
The consultation posed three questions regarding the proposed means of redress to
deliver the requirements of the amending Directive. This was the summary
explanation of the proposal given in the consultation document.
Means of Redress
The amending Directive introduces in Article 4(4) the requirement for Member
States to have a means of redress in case applicants wish to appeal decisions on
re-use made by public sector bodies. The means of redress shall include the
possibility of review by an impartial review body, whose decisions are binding on
the public sector body concerned.
The government proposes that this Article of the amending Directive would be best
implemented by retaining the existing investigative body (the Office of Public
Sector Information, part of The National Archives) with referral to a First-tier
Tribunal such as the Information Rights jurisdiction, for a legally binding decision.
This is because it:
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meets the requirements of the amending Directive
builds on existing resources and expertise which sit within The National
Archives
provides legal certainty and assurance in delivering binding decisions through
an independent judicial tribunal. This avoids placing extra burdens on the court
system and represents a low cost alternative to seeking a decision obtained
directly from the courts
links with The National Archives' other related activities on Crown copyright,
licensing, establishing best practice on access and re-use, official publishing
and information management
provides a level of continuity and is a proportionate and cost effective option
8
Question One: Do you agree that the proposal represents the most appropriate
way to deliver the means of redress required by the amending Directive?
If you do not agree, what do you think would be suitable alternative and why?
Question One - total number of responses - 18
Agree with proposal
Favour an amended "option C"
with ICO investigating
Favour ICO reviewing & making
binding decision
No comments offered
Number of respondents answering this question
(percentage of total respondents)
Number of respondents offering no comment on this question
(percentage of total respondents)
18
81.8%
4
18.2%
Number of respondents in favour of proposal
(percentage of respondents answering this question)
Number of respondents not in favour, or offering qualified support,
of proposal, favouring ICO involvement in investigatory role
either with or without powers to make binding decisions2
(percentage of respondents answering this question)
12
66.7%
6
Responses by sector
Public sector
Members of the public
Civil society/Open Data groups
Representative bodies/groups
No of
responses
14
1
2
1
% in favour
78.6%
0
0
100%
27.3%
% not in favour
11.4%
100%
100%
0
2
To note, the response from the Open Data Institute (ODI) was published as a draft before being
submitted and those in agreement were invited to add their names to the response. ODI’s response
has as a result been publicly endorsed by a number of interested parties.
9
Of the respondents who expressed a view on question one, the majority favoured the
proposal. Most support came from public sector respondents to the consultation. The
majority of other respondents did not favour the proposal.
Those favouring the proposal mostly did so without substantive comment.
Responses from groups interested in Open Data issues raised a number of issues.
Some described the current process as being ‘cumbersome and ineffective’.
Concern was also expressed that the proposal would not improve the process. There
was also a concern that ‘a lengthy and ultimately non-binding process involving the
Office of Public Sector Information (OPSI) would not provide the level of certainty
that re-users required. This in turn could l discourage PSI re-use.’ The proposal was
described as being ‘a backward step’ in that it was focused on reducing burdens for
the public sector instead of supporting prevailing Open Data policy. The proposal
was not seen as shortening the route to achieving a satisfactory outcome for
complainants and would lead to further delays. The capacity of OPSI to deliver this
role from within The National Archives (TNA) was questioned by two respondents on
two counts: first, because TNA is itself a major information holder that will be brought
fully under the scope of the Directive in 2015, which could create a perceived
conflict of interests for OPSI; and secondly, because of the view that OPSI has
become less visible since its transfer from the Cabinet Office (for instance
respondents commented that OPSI was not sufficiently visible on TNA’s website or
on GOV.UK).
One respondent suggested that the role of investigating complaints should be carried
out by the Information Commissioner’s Office (ICO) instead of the Office of Public
Sector Information, and that this option should be considered. The ICO itself in its
response stated that while the government proposal was feasible, that ICO could, if
required, assume the role of investigating re-use complaints and making binding
decisions.
One representative from the re-user community supported the government proposal
on redress, but raised points about the suitability of the ICO to fulfil this role.
A member of the public who responded to the consultation favoured retaining OPSI
as the investigatory body, but on condition that OPSI should have the power to make
binding decisions. The respondent thought this preferable to the role transferring to
ICO or to the Competition and Markets Authority. Points were expressed that if a
complainant needs to take the complaint to the First-tier Tribunal to secure a binding
decision, the complainant may be subject to fees or may have costs awarded against
them.
One further issue raised was the need to properly reflect concerns about privacy
where the public interest in the re-use of data (and particularly health data) is being
considered.
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Conclusion and next steps
We are continuing to consider the points raised in making a final decision on the
redress mechanism.
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Question two: Do you consider that the First-tier Tribunal is the appropriate
body to hear and determine appeals against decisions made under the
amending Directive?
Question two - total number of responses - 20
Agrees with proposal
Supports First-tier Tribunal but
only to review binding decisions
made at second stage of redress
mechanism
No comments
Number of respondents answering this question
Number of respondents offering no comment on this question
20
2
Number of respondents in favour
(percentage of respondents answering this question)
Number of respondents supporting the First-tier Tribunal as third
stage but reviewing binding decisions made at second stage
(percentage of respondents answering this question)
16
80.0%
4
Responses by sector
Public sector
Members of the public
Civil society/Open Data
groups
Professional bodies/groups
No of
responses
15
1
2
2
% in favour
93.3%
20.0%
% not in favour
6.7%
100%
100%
100%
Regarding the proposed final stage of the redress mechanism, all respondents who
expressed a view were content that the First-tier Tribunal was the appropriate body
to hear appeals against findings or outcomes at the final stage of the redress
mechanism, and no alternative bodies were suggested to carry out this role. This
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was regardless of whether respondents agreed that OPSI should act as the second
stage of the redress mechanism (either with or without the power to make binding
decisions) or preferred ICO to act as the second stage of the redress mechanism
with the power to make binding decisions.
Following on from the responses to Question one a number of respondents felt that
the Tribunal should not be the first point in the redress mechanism where a
complainant could obtain a binding decision. Rather, after a public sector body had
considered a complaint itself, a binding decision should be made at the second stage
of the redress mechanism. One respondent suggested that OPSI should be given
the power to make binding decisions, while three respondents supported the view
that the ICO could or should take on this role and make binding decisions after
completing its investigation. Such decisions could then be appealed by either party
to the First-tier Tribunal
One respondent expressed concern that if the ICO was given the role of
investigating complaints at the second stage of the redress mechanism, it would
need more resources to carry out the role (given the potential new burdens from
revised data protection regulations and mandatory data breach reporting).
Despite the First-tier Tribunal having a UK-wide remit, one respondent was
concerned that the Tribunal should recognise specific issues affecting Scotland
(where sparser population meant that datasets, which in England and Wales could
not readily be used to identify individuals, could be so used in Scotland). This proved
a particular concern for health data. The respondent thought that a separate Tribunal
for Scotland might be necessary.
One respondent was concerned that decisions made at the second stage of the
redress mechanism might be taken to the Tribunal for spurious reasons or as a
delaying tactic. The respondent felt that the Tribunal should require all appellants to
demonstrate how the public interest would be promoted by their case being heard.
One respondent from the museums, libraries and archives sector (which is being
brought into the scope of the Directive’s provisions for the first time) expressed the
concern that the optional re-use provisions for cultural sector bodies might become
eroded should legally binding decisions require cultural bodies to take action that is
only optional under the Directive.
Conclusion and next steps
The consultation responses demonstrated wide support for the proposal that the
First-tier Tribunal should be the final appeal stage of the redress mechanism,
regardless of whether respondents thought OPSI should act as the second stage
review with or without binding powers, or ICO should act as the second stage review
with binding powers.
13
We have had fruitful discussions with HM Courts and Tribunal Service and with the
First-tier Tribunal to establish how this proposal could be implemented. We continue
to consider this option and will continue to consider the points made in response to
the consultation.
14
Question three: Do you consider that the General Regulatory Chamber Rules
of the First-tier Tribunal will suit the handling of these appeals?
Question three - total number of responses 17
Agrees with proposal, no
comments
Agrees with proposal, comments
No comments
Number of respondents answering this question
Number of respondents offering no comment on this question
17
5
Number of respondents in favour
(percentage of respondents answering this question)
Number of respondents in favour but commenting
(percentage of respondents answering this question)
11
64.7%
6
35.3%
Responses by sector
Public sector
Members of the public
Civil society/Open Data
groups
Professional bodies/groups
No of
responses
11
1
2
3
% in favour
72.7%
100%
% in favour but
commenting
27.3%
100%
66.7%
33.3%
As with the responses to Question two, respondents to Question three (where they
expressed a view) were in general content that the Rules of the First-tier Tribunal are
well suited to handling appeals relating to re-use, but a number of respondents
added comments about particular issues or points.
Of these, the chief concern was that the costs of taking an appeal to the First-tier
Tribunal might discourage individuals or small/medium-sized enterprises from raising
complaints. One respondent thought that the Rules were appropriate so long as no
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direct costs were incurred in raising an appeal (but emphasising that appellants
should be liable for their own legal costs). Respondents representing Open Data
interests were concerned that the Rules should be ‘adjusted or wielded’ so as not to
impose excessive costs or other burdens on complainants. One commented that the
potential costs to an individual or a small/medium-sized enterprise of making a
complaint should be ‘capped’.
Against this view, a number of public sector respondents were concerned that
groundless appeals could potentially impose a burden on public sector finances, and
should be resisted. One favoured a robust cost recovery programme to deter such
appeals, and favoured that Rule 10 is of importance and must be applied.3
There were some points expressed about the complexity of the appeals process
through the First-tier Tribunal and the time it would take to complete an appeal. One
representative group favoured a maximum six-week framework for resolving
disputes following an arbitration process. Open Data advocates’ responses were
concerned to make the process as simple to follow as possible and expressed a
view that the Rules are too complex and might deter those with limited resources
and access to legal advice, such as small enterprises or start-up companies.
Conclusion and next steps
As with Question two, the responses to Question three have demonstrated wide
support for the present Rules of the First-tier Tribunal as suitable to handle re-use
cases.
From the consultation responses, it is apparent that there is little support for general
revisions to the Rules of the First-tier Tribunal to make them suited to re-use cases.4
Again, fruitful discussions have already been held with HM Courts and Tribunal
Service and the First-tier Tribunal about the application of the existing Rules to reuse cases. We continue to consider this option and will continue to consider the
points made in response to the consultation.
3
Rule 10 relates to orders for costs (in Scotland, expenses).
The First-tier Tribunal rules can be found on the HM Courts and Tribunals Service pages of the
GOV.UK website.
4
16
The consultation asked one question regarding the proposed approach to laying
down criteria for the calculation of charges in cases where charges above marginal
cost are made. This was the summary explanation of the proposal given in the
consultation document.
Charging criteria
The amending Directive requires Member States to lay down objective, transparent
and verifiable criteria for the calculation of charges in cases where charges above
marginal cost are made (Article 6(3)).
As far as the objective, transparent and verifiable criteria are concerned, it is proposed
that the wording would be included in the implementing legislation providing the
criteria for calculation of the amount of a charge.
Question four: Do you have any comments about the proposed approach to
laying down criteria for the calculation of charges in cases where charges
above marginal cost are made?
Number of respondents answering this question
Responses by sector
No of
responses
Public sector
Members of the public
Civil society/Open Data
groups
Professional bodies/groups
16
1
2
3
22
% making no
substantive
comments
50%
33.3%
% making
substantive
comments
50%
100%
100%
66.7%
Question 4 invited comments on the proposals for laying down criteria for calculating
charges. Without having sight of the proposed wording of the criteria, a number of
respondents noted that comment was not possible without further detail. When the
criteria are made available, several respondents requested that they should be clear,
concise and easy to interpret. One called for the criteria to explain how charges
above marginal cost should be calculated, with illustrative examples. Another
requested clarification of particular terms, including ‘reasonable return on
investment” and “applicable accounting principles’.
Some respondents expressed the view that the criteria should be flexible and should
not restrict public sector bodies. For cultural bodies it was argued that the flexibility
needs to include how costs are established, since within a public sector body, cost
factors are likely to vary between collections when considering, for instance, archival
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information. It was accepted that, it would be incumbent on the cultural bodies to be
transparent and open as to the costs and how they were calculated.
Cultural sector bodies made a series of observations on charging. Respondents
noted that the third exception under the Directive (which excludes libraries including
university libraries, museums and archives from the provision that charges shall be
limited to the marginal costs of reproduction, provision and dissemination) is vital for
the cultural sector and that charging above marginal cost will remain vital. One
respondent argued for the benefits of establishing a limit on the amount of
commercial re-use so as to encourage proper licensing. Another noted that charging
for cultural bodies should be carried out under Article 6(4) and argued against any
moves to apply the wording under Article 6(3) requiring ‘objective, transparent and
verifiable’ criteria to cultural sector bodies.
Where public sector bodies hold data that is potentially high in information that would
be exempt under the Freedom of Information Act, a respondent argued that the cost
of identifying and redacting exempt information should be included in the criteria.
The costs of identifying and clearing third party copyright material should also be
included.
Open Data representative groups raised similar issues in respect of Question four.
Given the absence of detail regarding the charging criteria available in the
consultation document, they took the view that allowing the public sector too much
latitude on charging could result in higher charges than at present for equivalent
data, and that data might be charged for which would previously have been available
to re-use for free. One respondent asked whether the existing “exception to marginal
cost pricing” process operated by OPSI for Crown bodies could be made mandatory
for all public sector bodies, with a regulator approving any requests to charge above
marginal cost. It was also suggested that in making decisions about charging, public
sector bodies should consider not only their own narrow interest but also the wider
economic benefits of making data available at low or nil cost. Another asked that
where public sector bodies charge above marginal cost, they should publish details
of the amount of revenue received (as per paragraph 4.3 of the published EU
guidelines published earlier in 2014). The respondent commented that the UK should
take account of the criteria to guide charging set out in those guidelines.
The member of the public’s response argued that charges above marginal cost
should only be available to recover the costs accruing due to re-use, or where there
are costs to provide a value added service beyond the public sector body’s public
task. They noted also that the existing Freedom of Information Act charging
regulations where they deal with the re-use of datasets will need to be updated so as
to be compatible with the new re-use charging criteria.
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One respondent was doubtful that the required criteria can be ‘laid down’ in guidance
(whether statutory or non-statutory), and suggested that including the criteria in the
Regulations should be fully considered.
One respondent was concerned that Article 7 of the Directive (regarding
transparency) had not been included in the consultation. The respondent thought
that this is important because of the need to preclude charges at the earliest stage
so as to encourage re-use.
Some respondents noted points about the Directive rather than about its
transposition in the United Kingdom (for instance, arguing that the exemptions from
the requirement to charge at marginal cost are too narrow, or that other costs should
be included in the lists of items allowed when calculating charges, as ‘true costs’
would deter unreasonable demands). Such considerations are outside the scope of
this consultation, which is concerned with the correct transposition of the Directive as
adopted into UK law.
Conclusion and next steps
We continue to consider the comments made and work continues to develop the
necessary and appropriate charging criteria required to implement the Directive in
the United Kingdom.
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The consultation asked one question inviting respondents to identify any impacts,
benefits or implications of the proposals considered in the impact assessment that
should be considered.
Question five: With reference to the impact assessment are there any other
impacts, benefits or implications of the proposals which should be
considered?
Number of respondents answering this question
Responses by sector
Public sector
Members of the public
Third sector/civil society
Professional bodies/groups
No making
comments
7
1
2
2
12
No making no
comment
9
1
In answering Question five, a number of respondents commented on impacts to be
considered in the impact assessment, and a number also took the opportunity to
raise other points.
Responses relating to impacts to be considered in future impact assessments
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One respondent expressed a view that the impact assessment did not reflect
the possibility of further policy changes, on Open Data and the National
Information Infrastructure, for instance.
One respondent suggested that in the museum sector the possibility of lost
income had not been fully considered and should be along with the resources
to ensure that proper licensing arrangements are in place.
Two respondents disagreed that there was a ‘zero cost’ to providing
information, arguing that there is a burden in responding to requests under
access to information regimes; while another believed that there will be
operational costs to meet some of the technical provisions of the amended
Directive.
One respondent thought that the impact assessment had only considered the
positive outcomes for public sector information holders and had not looked
closely enough at negative impacts.
One respondent thought that the dangers of undermining public confidence in
the confidentiality of personal data, particularly health data, had not been
considered.
Three respondents felt that the number of appeals to the First-tier Tribunal are
likely to be higher than forecast by the impact assessment: first because of
the perception that charges may now be applied where they were not
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previously; secondly, because the possibility of binding decisions may
encourage more appeals; and thirdly because the process is likely to be
higher in profile and attract more attention than the existing appeals process.
Against this, two of these respondents thought that the costs of making an
appeal might put some potential appellants off, and argued for a cap on the
cost of making an appeal.
Two respondents thought that any possible changes to the existing exception
to marginal cost pricing procedure that presently applies just to Crown bodies
should also be considered in the impact assessment.
One respondent asked that the impact of the Directive on the relationship
between cultural sector bodies and their trading subsidiaries be considered in
the impact assessment.
One respondent noted that there are existing internal charging regimes
between some museums and their trading arms or subsidiaries, and the
impact of the amended Directive on these arrangements should be
considered in the impact assessment.
One respondent noted that some of the figures used in the impact
assessment are now out-of-date, and may over estimate the amount of data
which is presently available under the Open Government Licence.
One respondent noted that the estimates of revenue used in the impact
assessment do not adequately reflect changes in government policy on Open
Data.
One respondent took issue with paragraph 2.7 of the impact assessment,
listing a number of obstacles that felt to be routinely encountered by
commercial re-users dealing with local authorities in particular.
One respondent disagreed with paragraph 3.7 of the impact assessment,
asserting that data charges must be based on marginal cost, and citing the
judgment of the EFTA Court in case E-7/135 on the principles governing
charging under the Re-use Directive.
Conclusion and next steps
The points made regarding other impacts for inclusions in the impact assessment will
be considered in any future impact assessment covering this work.
5
Available on line at
http://www.eftacourt.int/cases/detail/?tx_nvcases_pi1%5Bcase_id%5D=187&cHash=35bdfc98ff37581
26c444be2f8af3679
21
Other points raised in response to Question five
A number of respondents raised additional points not related to the impact
assessment in answering Question five.
The Amendments to the Regulations

One respondent requested that the amending regulations should be made
available for comment before they are implemented.
Guidance

One respondent highlighted the importance to public sector bodies, and
particularly those in the cultural sector, of guidance on how to apply the
amended Regulations.
Freedom of Information linkage


One respondent raised points about how the linkage of the amended
Regulations with the existing provisions for re-use of datasets introduced by
the Protection of Freedoms Act amendments to the Freedom of Information
Act will be managed. The respondent warned of confusion if the coupling of
dataset re-use with Freedom of Information was undone. The respondent
emphasised the importance of there being a continuing convergence between
the rights to receive and to re-use information.
One respondent asked if there will be consultation on the necessary changes
to the Freedom of Information Act, and if so, when this would be.
Public task generally

One respondent argued that trading funds and local authorities should not be
able to ‘endorse, equip or swap definitions’ of their public task so as to
manage re-use, and advocated that all such bodies’ data should simply be
‘pushed to the web’.
Public task in the cultural sector

One respondent focused on the public task of museums which might be
carried out by trading subsidiaries (such as the production of exhibition
catalogues where material produced by museum staff is then edited and
packaged for commercial publication). The respondent felt it would be
detrimental were such projects to be defined as re-use under the amended
Directive. Accordingly, museums would need to differentiate between two
categories of information made available to trading subsidiaries: one to
complete a public task on behalf of the museum; the other to exploit
commercially.
22
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
One respondent urged that great care be taken in defining the public task of
public sector museums that are not covered by the Museums and Galleries
Act.6
One respondent sought clarification as to whether digitisation of cultural
assets would or would not be considered to be part of cultural body’s public
task.
Exclusive arrangements and pricing



One respondent commented on the limits to be placed on exclusive
arrangements for cultural sector bodies, and felt that they limit the ability of
the public sector to capitalise on assets and investments. More research is
needed into the impact of these limits on exclusive deals with commercial
partners.
Another respondent thought that it will be important to have clarification of the
ownership of intellectual property in copies of digitised materials where this is
achieved under the terms of exclusive agreements.
One respondent felt that public sector bodies should commit to common
pricing for commonly held types of information (such as planning and highway
data held by local authorities) rather than continue to charge widely varying
prices for equivalent data.
Research in museums

One respondent noted that with cultural sector bodies including museums
being brought within the scope of the amended Directive, but research
establishments remaining outside of the scope, there now exists an anomaly
where museums carried out research functions. The Natural History Museum
was cited as an example of a museum that carries out extensive research.
The respondent stressed that such Museums should not be disadvantaged in
comparison with university and other public sector research establishments.
As part of carrying out research it is frequently necessary to share information
between partner institutions, and it is particularly important that such data
sharing is not considered to be re-use under the amended Directive
Marginal cost and the charging criteria

One respondent noted that cost recovery, while well established in Trading
Funds, is not a regular and well-understood activity for most public sector
bodies, and argued that non-trading funds should be allowed to determine the
level of marginal costs based on the ‘true’ cost of compliance.
6
The Museums and Galleries Act 1992, text available at
http://www.legislation.gov.uk/ukpga/1992/44/contents
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
One respondent noted that there were some hidden administrative costs
which may not be accounted for under the charging criteria. For this reason it
is important that the ability of cultural sector bodies to charge above marginal
cost should always be retained.
The redress mechanism


One respondent expressed the view that it is not clear from the consultation
document whether or not the Advisory Panel on Public Sector Information
(APPSI)7 and the Information Fair Trader Scheme (IFTS) are to be retained.
Whether or not they are will affect the overall effectiveness of the proposed
redress mechanism.
One respondent expressed the opinion that the Information Commissioner’s
Office (ICO) would not be a suitable body to undertake a formal role in the
redress mechanism, citing ICO policy and practice regarding the licensing of
property search data.
The Information Fair Trader Scheme

One respondent urged that membership of IFTS should be mandatory for all
public sector bodies trading in information within 12 months of the adoption
[sic] of the Directive.
Cultural sensitivities in public sector data

One respondent noted that in museums and archives it is not uncommon for
holdings to include material that includes documents that may be sensitive for
religious, political or ethical reasons. While it is appropriate for such
collections to be available to be re-used for non-commercial research or
educational purposes, it will often not be possible to make them available for
commercial re-use. It will be important therefore for cultural sector bodies to
retain the ability to refuse to allow commercial re-use of culturally sensitive
material even if it has already been made available for non-commercial reuse.
Conclusion and next steps
We are continuing to consider the points raised.
7
APPSI has been the subject of a triennial review, which has not been completed at time of
publication.
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The consultation criteria
The seven consultation criteria are as follows:
1. When to consult – Formal consultations should take place at a stage where there
is scope to influence the policy outcome.
2. Duration of consultation exercises – Consultations should normally last for at
least 12 weeks with consideration given to longer timescales where feasible and
sensible.
3. Clarity of scope and impact – Consultation documents should be clear about the
consultation process, what is being proposed, the scope to influence and the
expected costs and benefits of the proposals.
4. Accessibility of consultation exercises – Consultation exercises should be
designed to be accessible to, and clearly targeted at, those people the exercise is
intended to reach.
5. The burden of consultation – Keeping the burden of consultation to a minimum
is essential if consultations are to be effective and if consultees’ buy-in to the
process is to be obtained.
6. Responsiveness of consultation exercises – Consultation responses should be
analysed carefully and clear feedback should be provided to participants following
the consultation.
7. Capacity to consult – Officials running consultations should seek guidance in
how to run an effective consultation exercise and share what they have learned from
the experience.
These criteria must be reproduced within all consultation documents.
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Annex A – List of respondents
Archives and Records Association
Association of School and College Leaders
British Library
CyMAL
Gateshead Council
HM Land Registry
Independent Personal Search Association
Information Commissioner’s Office
Libraries NI
London Fire Brigade
Marine Management Organisation
Met Office
NHS National Services Scotland
National Institute of Health and Care Excellence
National Library of Scotland
National Museum Directors’ Council
Open Data Institute
Open Data User Group
Science Museum Group
Transport for London
Welsh Government
We also received one response from a member of the public.
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