Challenges facing Public Sector Information Re-Users

Audrey MandelaLocus Chair

October 2009

The Locus Association• The Locus Association was established to encourage the public sector to

maintain a trading environment that is fair and equitable, in particular in relation to the licensing and re-use of public sector information.

• We do not necessarily believe that data should be free; however, we believe data should generally be available at cost plus a small margin.

• Our members are private sector companies that are committed to working with PSI holders to maintain and develop a vibrant, information-driven UK economy that ultimately works to the benefit of the public sector, private sector and end consumer.

Public Sector Information (PSI) matters“Public authorities produce, collect and hold vast amounts of public sector information. PSI is considered to be the single largest source of information in Europe, covering widely diverging sectors and expanding across all areas of government.” (European Commission)

“Between 15% and 25% of commercial information products and services are based on information held by the public sector.” (Lord Falconer, former Secretary of State for Constitutional Affairs and Lord Chancellor)

“Government is a natural monopolist for most PSI.” (Treasury Spending Review)

The MEPSIR study (2006) contracted by the European Commission puts the overall market size for the re-use of PSI in the European Union at EU27 billion.

Over £500 million of lost value to the economy because of current arrangements. (OFT Commercial Use of Public Information Market Study)

Challenges for PSI Re-users

• Legislation: Directives and legislation are not clear, and are lightweight.

• Regulation: Lack of robust regulation/regulators.• Public task: Lack of clarity regarding Public Sector Information

Holders’ (PSIHs) “public task”, i.e. what public organisations are allowed to do/are meant to do.

• Pricing: should pricing be set to encourage re-use, or to make a profit for Government?

• Licensing: there are often restrictive or confusing rules.• Information: lack of information about what data is available, from

which entity.

EU PSI Regulations

• The Re-use of Public Sector Information Regulations 200518 (the Re- use Regulations) implement the European Directive of 2003 (the Re-use Directive).

• While PSIHs are not obliged to make information available for re-use, and some types of PSIHs fall outside their remit, the Re-use Regulations encourage the wide distribution of PSI.

• They also set out what is considered PSI for the purpose of the Re-use Regulations, what PSIHs can charge for information and the fair terms on which access should be given. In addition, the Re-use Regulations require that PSIHs have an internal complaints procedure. In the UK, where complaints are not resolved under this process, complainants can refer their complaint to the OPSI, the body that regulates the PSI sector.

• The Re-use of Public Sector Information Regulations also state that any charge for re-use must not exceed the sum of the cost of collection and a reasonable rate of return on investment.

The PSI Directive does not apply to…

1.2 a) Documents the supply of which is an activity falling outside the scope

of the public task of the public sector bodies concerned as defined by law

or by other binding rules in the Member State, or …… in line with

common administrative practice….

The PSI Regulations in the UK as transposed from the Directive state….

Regulation 15(2) public sector organisations can charge sums for

the re-use that should not exceed:

a) The cost of collection, production, reproduction and dissemination

of information; and

b) A reasonable return on investment.

Office of Public Sector Information (OPSI)

• Merged with the National Archives in October 2006 “to provide strong and coherent leadership for the development of information policy across government and the wider public sector”.

• Regulator of public sector information holders for their information trading activities.• The Information Fair Trader Scheme (IFTS) founded on the principles of openness,

transparency, fairness, compliance and challenge helps re-users of public sector information to know that they will be treated reasonably and fairly.

• OPSI also investigates complaints against public sector information holders made under the Re-use of Public Sector Information Regulations.

• OPSI provides the Click-Use system for obtaining a licence to re-use Crown copyright and public sector material through an online licensing process and is responsible for the Information Asset Register (IAR) that lists information assets held by the UK Government with a focus on unpublished material.

• OPSI also provides a secretariat to the Advisory Panel on Public Sector Information (APPSI), which advises Ministers on how best to encourage the re-use of public sector information.

Advisory Panel on Public Sector Information (APPSI)

• A Non-Departmental Public Body of the Ministry of Justice

Its role is:

• To advise Ministers on how to encourage and create opportunities in the information industry for greater re-use of public sector information;

• To advise the Director of the Office of Public Sector Information and Controller of Her Majesty’s Stationery Office about changes and opportunities in the information industry, so that the licensing of Crown copyright and public sector information is aligned with current and emerging developments;

• To review and consider complaints under the Re-use of Public Sector Information Regulations 2005 and advise on the impact of the complaints procedures under those regulations.

UK Government PSI policy has been problematic for many years

• Government gives away some data… (the Re-use of Public Sector Information Regulations 2005, the Freedom of Information Act 2000, the Environmental Information Regulations 2004 and the Transformational Government initiative aim to make as much PSI available as widely and cheaply as possible)…

• And sells some data… (Trading Funds are required to hit revenue targets; the Wider Markets Initiative encourages PSIHs to earn an income from selling or licensing PSI).

• Tim Berners-Lee has been drafted in to help Gordon Brown achieve his aim of making the UK a world leader in opening up government information on the internet (an important element of “Building Britain’s Future”).

• OFT CUPI study: “We are concerned about the lack of clarity around the objectives of government policy for PSI…. PSIHs themselves have told us that they feel subject to conflicting policies.”

Various studies & legislation have identified/sought to address key issues

• 2000: HM Treasury's (HMT) Cross-cutting Review of the Knowledge Economy (Review of Government Information)

• 2003/5: European Union Re-use of Public Sector Information Regulations

• 2005/2006: Office of Fair Trading Commercial Use of Public Information (CUPI) report

• 2007: Cabinet Office Power of Information Taskforce Report

• 2008: “Cambridge Study”

• 2009: Trading Funds Assessment/Operational Efficiency Programme

OFT Commercial Use of Public Information Study

• Launched in July 2005 and published in December 2006.• Aimed to examine whether the way in which PSIHs supply information works

well for businesses, to the best advantage for consumers.• Focused on central government PSIHs, particularly the 400 bodies with an

annual expenditure of £500,000 or more.• “We have concluded that improvements can be made. We estimate that, with

these improvements, the sector could double in terms of the value it contributes to the UK economy to a figure of £1 billion annually.”

• PSIHs need to ensure:• that businesses have access to PSI at the earliest point in its refinement that it is useful to them

and on an equal basis to any refined information operations of the PSIH itself• where PSIHs are engaged in significant refined activities they need to ensure that they are not

favouring their own refined operations over the private sector. This requires the use of cost-reflective pricing and accounting separation of PSIHs' unrefined and refined operations.

The Cambridge Study

• Commissioned jointly by the Department for Business, Enterprise and Regulatory Reform (BERR) and HM Treasury in July 2007; published February 2008.

• Examined the cost and benefits for society, and the effects on government revenue, of 4 different models for the provision of public sector information by trading funds.

• Focused on the six largest trading funds by data provision revenue: the Met Office, Ordnance Survey, the UK Hydrographic Office, the Land Registry, Companies House and the Driver Vehicle Licensing Agency.

• The study found that “in most cases, a marginal cost regime would be welfare improving”.

• Having proper governance/regulatory regime in place is central to realising the benefits of change: “…getting this right should be one of the first items for consideration whether or not any restructuring does take place (and will be essential if additional subsidies are required under a move to marginal cost pricing).”

The Operational Efficiency Programme

• “In the current economic circumstances businesses are facing up to real challenges of cutting costs in order to stay in business and emerge stronger from the downturn. The public sector needs to do likewise, looking for savings in addition to the routine savings departments are expected to make each year, so that the Government can continue to invest in excellent public services while maintaining sustainable public finances.”

• “…significant opportunities… remain to be seized.”• Five private and public sector leaders with relevant expertise were appointed to advise

the Operational Efficiency Programme and examine five key areas of operational expenditure in the public sector:

– back office operations and IT, led by Dr Martin Read;

– collaborative procurement, led by Martin Jay;

– asset management and sales, led by Gerry Grimstone;

– property, led by Lord Carter of Coles; and

– local incentives and empowerment, led by Sir Michael Bichard.

• “Gerry Grimstone has recommended a stronger mechanism of challenge across government to ensure that assets held by the public sector are managed in a way that maximises efficiency, and that commercial potential is being fully considered and harnessed.”

The OEP & Public Sector Information

• The original objective: “In response to the Budget 2008 announcements that the Government would link an assessment of the governance, business plans and future development strategies of the trading funds with a commitment to look closely at public sector information held by trading funds to distinguish more clearly what is required by Government for public tasks and ensure that this information is made available as widely as possible for use in downstream markets.”

• “The Assessment identified key principles of good practice relating to information produced by all Trading Funds. These principles are:

– information easily available — where possible at low or marginal cost;– clear and transparent pricing structures for the information, with different parts of the

business accounted for separately;– simple and transparent licences to facilitate the re-use of information for purposes

other than that for which it was originally created; and– clearly and independently defined —with input from customers and stakeholders —

core purposes (‘public tasks’) of the organisations.”

Impact of the credit crunch on PSI Policy

• An increased emphasis on sweating the assets and achieving “value for money”

• Charging for data that might once have been free

• Increasing fees for data that is already charged for

• Selling off some assets such as Trading Funds: “…consider whether the most efficient use is being made of the assets from the point of view of business model, organisational and customer requirements, capital structure, including whether the current position within the public sector is appropriate”…

• Encouraging some PSIHs to be more commercial, which may lead them to compete with their customers

• Giving away some data to try to stimulate economic growth

• More studies, reviews, benchmarking, consultants, advisors…

• An on-going lack of clarity / conflicting policies

PSI and the upcoming election

• Whichever party wins, there will continue to be a push to realize greater value from Government assets.

• The Conservatives are in favour of giving away some public sector information, but have also expressed interest in selling off some Government assets, especially several Trading Funds.

• If Labour stays, we’ll see more of the same: sweat the assets hard, sell some off, and allow others to compete with the commercial sector.

• There is unlikely to be a cohesive strategy for PSI in the UK for some time.

• Locus is planning a seminar for November to give each party the opportunity to describe the PSI plank of its platform.

(The current and future ) Government must decide what it wants…

To be as efficient as possible?

To avoid conflict (e.g., Competition Law and OPSI)?

To encourage innovation and enterprise?

To make an appropriate financial return?

To provide for needs of good government?

To maximise the use of PSI?

Access to Public Sector Informationhas improved…

• According to the EC’s 2009 Review of the PSI Directive, prices have decreased, there is more transparency, some monopolies have been broken, and fair trading conditions have been introduced.

• The UK has created the Office of Public Sector Information (OPSI) to advise on and regulate the operation of the re-use of PSI…

• And established the Advisory Panel on Public Sector Information.• OPSI’s has launched its OPSI PerSpectives blog (

http://perspectives.opsi.gov.uk/), and is opening up a discussion of marginal cost pricing;

• The OEP has contributed to a drive for greater efficiency and cost reduction among PSIHs;

• There is a push for simplification of pricing and licensing;• The licensing of some PSI has been made easier through the Click-Use

Licence.

But challenges remainfor re-users of PSI…

• Governance is lacking. As noted in the Cambridge Study, “…having an adequate governance/ regulatory regime in place is absolutely central to realizing the potential benefits from change….”

• The EC Directive and PSI Regulations do not currently make it mandatory for public sector bodies to make their information available. To maximise the value of PSI, the UK PSI Regulations need to be amended to make re-use of information compulsory for all public sector bodies.

• The EC Directive and PSI Regulations have little power to prohibit breaches of the EC Directive or PSI Regulations.

• OPSI should be given real regulatory power; currently its sanctions are either too weak, or too nuclear.

• There is a lack of clarity about which Government entity is responsible for PSIHs’ activities: CLG? ShEx? OPSI? NAO? Cabinet Office? MPs?

• A proper process is needed to define PSIHs’ public task.

• Finding information about what PSI is available is still not as straightforward as it should be.

…challenges remainfor re-users of PSI

• In some sectors, the PSI holder competes with its partners/customers, and is being encouraged to do so by Government.

• There is still a lack of clarity, consistency and transparency in the terms of use and pricing imposed by some PSIHs, particularly large Trading Funds such as Ordnance Survey.

• The commercial sector is not consistently given access to ‘unrefined’ (‘upstream’) data on the same terms as trading funds themselves have.

• We still lack simple and cost-effective procedures of redress in the event of complaints about non-compliance with the Directive as an initial alternative to litigation.

• The need to balance the desire to release PSI for re-use for free, or under a different pricing structure, to benefit the economy against Government’s need to work its assets.

• Government must work harder to have a PSI policy that is truly cohesive and consistent, and that works for all stakeholders.

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