This is not, I imagine, the answer you, gentle reader, expected:)
Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website some emails he had obtained from the local council, as part of a local campaign against certain alleged illicit acts by that council. According to X, the emails could destroy the reputation of certain local councillors involved, and that they had had great difficulty extracting the emails, but finally succeeded. Obviously the value to the public in terms of access to the facts - surely the whole point of FOI legislation - would be massively enhanced if the obtained emails could be put on the campaign website.
My advice was that I was no FOI expert but since data cannot be released under FOI when it reates to a living person, DP and breach of confidence were not likely to be problems (though the latter was not impossible), and the main danger was surely libel, in which case truth was a complete defence. There would of course be a risk that councillor A might be lying about councillor B to the detriment of their reputation; in which case there was a danger of re publishing a libel. But that didn't seem all that germane and a public interest defence (though not one Pangloss would like to depend on, if it was her money) would certainly be possible.
I was wrong. Asking more people (and many thanks here to the wonderful ORG-legal list, especially Technollama, Victoria McEvedy, Simon Bradshaw, Daithi MacSithigh and Andrew Katz)) revealed the main weapon for gagging publication of FOI requests: that useful, all purpose, font of legal restraint - copyright.
In my innocence, I would have expected that a document obtained under FOI could be automatically republished by the recipient. Not so. The Office of Public Sector Information (OPSI)'s website reminds us that :
Information listed in Publication Schemes, which can be disclosed under FOI, will be subject to copyright protection. The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder. Permission to re-use copyright information is generally granted in the form of a licence.[italics added]As with most legal issues, the devil is in the detail here. Why should permission to republish only be "generally granted"? Why is it not compulsory to grant a license (though not necessarily for no consideration)? In the example at hand, the copyright holders have fought to prevent disclosure and have every reason to refuse to grant copyright permission. This seems both immoral and against the whole point of FOI.
Technollama advises me that where information is Crown copyright, there are indeed generally obligations under the Public Sector Information Directive (PSID) to release that information under some open licensing scheme. Currently this is Click-Use, but will soon be Creative Commons. An "open licensing" scheme does not necessarily mean you get to publish for free either, but it should mean copyright could not be used to gag publication. This all sounds good and right. The general reasoning behind the PSID obligations is that public money pays for public data, so the public should be able to access it and re-use it to create both economic and creative public benefits .
A similar reasoning lies behind the recent acclaimed open data.gov initiatives involving Tim Berners-Lee and Nigel Shadbolt's Web Science team. Various campaigns such as the Guardian's Free our Data calls have influenced UK public opinion to the point where the UK government seems to have acknowledged that public data should be able to be - well - published - and then re-used for public benefit.
However Crown copyright only applies in general to works generated by central not local government. And in any case it is more than possible that emails of this kind might be the copyright of the individual senders themselves, not the council, especially given the lack of a contract of employment.
(There are plenty of public bodies subject to FOI whose works are not Crown copyright, including eg the BBC and the ICO - see a selected OPSI list here - so this is going to be a common problem.) Of course it is possible the emails might not qualify for copyright at all - but given the low level of orginality test etc usually applied nowadays, this is pretty unlikely.
So here is a case where the law has already agreed that there is a public benefit in being able to scrutinise the activities of public officials (in this case, local councillors) yet there is no obligation to allow re-publication, merely a suggestion. In this case, the incentive to allow public republication is ethical and moral, not economic. Should that make any difference? I don't think so: perhaps the reverse.
Copyright of course has exceptions. Even if the council or councillors in question refused to license republication, it might be claimed that well known defences like news reporting or public interest might apply to allow copyright to be trumped. The OPSI site acknowledges this (see para 2). But we all know that the chilling effect of the threat of expensive litigation is likely to be an effective muzzle for most members of the lay public, if only vague and untested defences lie between them and big legal debts.
Would it not be far, far more sensible simply to require that where copyright materials are released under FOI (perhaps after a decent interval if necessary to allow for appeals) then a licesne to republish MUST be granted? Reasonable commercial conditions could apply depending on the value of licensing the information; which would be zero for scurrilous emails, but would stop people using FOI as a back door to getting free copies of expensive information. (Though as noted, the trend is for free release of public data anyway.)
The UK is not the only country to allow this under its FOI law In Canada, in 2008, Michael Geist discovered that the Vancouver BC government were asserting copyright over released by FOI materials. He wrote:
The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.I could not agree more. The current situation is an appalling (and little known) travesty of what FOI is all about. It needs changed.
Excellent analysis as always.
Just wanted to point out that there is a public interest exception to public sector information (s171 CDPA). This may or may not apply.
Post a Comment