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THE ORDNANCE SURVEY ENQUIRY

 

MEMORANDUM BY THE OFFICE OF PUBLIC SECTOR INFORMATION

 

1 June 2007

 

Role of Office of Public Sector Information (OPSI)

 

1. OPSI operates within The National Archives. The Director of OPSI is also the Controller of Her Majesty's Stationery Office (HMSO) and Queen's Printer (the Controller). The Controller has responsibility for the management of all copyrights and database rights owned by the Crown. This authority is conferred by Letters Patent. HMSO has responsibility for the publication of legislation, official materials and the management of Crown copyright.

 

2. The Controller has delegated authority to Ordnance Survey to license Crown copyright mapping data and the products that it produces. The delegation of authority is subject to Ordnance Survey complying with the principles of the Information Fair Trader Scheme (IFTS). These principles are: openness, fairness, transparency, compliance and challenge.

 

3. OPSI, as the regulator, monitors compliance with the IFTS principles through formal verification audits, underpinned by a disputes resolution process. The last verification was undertaken in October 2005. The published report of the verification can be found at http://www.opsi.gov.uk/ifts/ordnance-survey-ifts-report.pdf, (Annex A) with Ordnance Survey's response to the recommendations at http://www.opsi.gov.uk/ifts/ordnance-survey-response.pdf (Annex B). This report makes a number of key recommendations. Ordnance Survey has addressed these recommendations to OPSI's satisfaction. Accordingly, Ordnance Survey's commitment to the IFTS principles was endorsed in January 2007. OPSI is due to re-verify Ordnance Survey in September 2007.

 

4. OPSI has responsibility for investigating complaints about public sector information holders, under both IFTS and the Re-Use of Public Sector Information Regulations 2005 (S.I. 2005 No. 1515). Ordnance Survey has been the subject of a number of challenges and complaints to OPSI, few of which have led to formal investigation. Facilitation and mediation between the parties involved has usually served to identify areas where practices can be improved. The most significant and high profile complaint was brought by a limited company, Intelligent Addressing. Details of OPSI's published findings are set out at http://www.opsi.gov.uk/advice/psi-regulations/complaints/SO-42-8-4.pdf (Annex C). These and other related issues about government information trading have been the subject of media and industry interest.

 

Oral Evidence

 

5. OPSI would be willing to provide oral evidence if the Committee considers that this would be valuable.

 

Scope of Ordnance Survey's Responsibilities

 

Q 1 In 2002, the Committee's predecessor, the Transport, Local Government and the Regions Committee, concluded in its report on Ordnance Survey: "there is a clear need to define the boundaries of Ordnance Survey public service and national interest work." To what extent has the position changed in the intervening five years?

 

In evidence to the Select Committee's recent enquiry into DCLG's Annual Report, the Department said the ending of NIMSA meant there was "no distinction between public service and commercial activity for Ordnance Survey" (Third report of 2006-07, HC 106; Ev. 105). But OS remains the largest public sector information holder in the UK, providing publicly gathered data under licence to organisations both public and private. How clear are the boundaries between its roles as the holder of base geographical information required by its partners and competitors to make their products commercially viable and as a commercial operator within the same marketplace as those partners and competitors?

 

 

6. As a government trading fund Ordnance Survey is required by Treasury to adopt a commercial role in terms of the exploitation of the data it produces. This can lead to perceived tensions arising from the fact that Ordnance Survey is expected to comply with the IFTS principles and the PSI Regulations but is also active in commercial markets.

 

7. The PSI Regulations refer to activities carried out by public sector bodies that are regarded as part of their public task. The term public task is analogous to the Committee's reference to public service and national interest work. With government trading funds, including Ordnance Survey, the distinction between public task and commercial activities can become blurred. This issue was highlighted in OPSI's investigation of the complaint made by Intelligent Addressing. We would refer you to the following passages to our published report:

 

(a) Regulation 5(1)(a) provides that the PSI Regulations do not apply where:

i. "the activity of supplying a document is one which falls outside the public task of the public sector body".

 

ii. Public task is therefore a key concept within the PSI Regulations, setting out the parameters of what is available for re-use. The term "public task" is not defined in the PSI Regulations. It is noted, however, EU Directive 2003/98/EC which the PSI Regulations implement refers in Article 2 to public task being "as defined by law or other binding rules in the Member State". OPSI notes that the PSIH's public task is drawn widely and has determined that the meaning of public task in relation to the PSIH covers all those operations of the PSIH which are set out in Article 2 and Schedule 1 of the Ordnance Survey Trading Fund Order 1999 and as further detailed in the PSIH's Framework Document.

 

iii. The listed operations include "making available a range of products, licences and services to meet the needs of customers in the United Kingdom, in Europe and world wide". Accordingly, the licensing of the product AddressPoint to the Complainant, which is the subject matter of the present complaint, is part of the PSIH's public task and the exclusion in Regulation 5(1)(a) does not apply.

 

iv. It is noted that neither the PSIH nor the Complainant has suggested that the commercial provision of a geo-spatial database information by the PSIH is outside its public task.

 

8. Both parties to the complaint requested that the Advisory Panel on Public Sector Information (APPSI) review the recommendations made in OPSI's report. APPSI concluded that the production of Ordnance Survey's Address Point, the subject of the complaint, fell outside Ordnance Survey's public task and so was not covered by the PSI Regulations. Furthermore, APPSI concluded that as AddressPoint contained third party material, this too excluded it from the PSI Regulations. OPSI, in stating the government position, disagreed (see Annex D) : http://www.opsi.gov.uk/advice/psi-regulations/complaints/statement-review-SO-42-8-4.pdf

 

Q2 In 2002, the Select Committee also identified "a clear need for some form of independent arbitration so that conflicts could be resolved" between OS and its partners and customers. To what extent has that position changed in the intervening five years?

 

9. OPSI acts as Ordnance Survey's regulator, monitoring their licensing and information trading activities under IFTS. IFTS was established following HM Treasury's Cross-Cutting Review of the Knowledge Economy in 2002, which formed part of the Spending Review 2000. The Cross-Cutting Review recognised the need for strong regulation of the trading funds, such as Ordnance Survey, in order to reassure the information industry that the information trading activities of the trading funds is conducted in a fair, transparent and open manner. Within the framework of IFTS, OPSI has improved standards across the trading funds. This has been recognised by the Office of Fair Trading, and in its recent market sector study into Commercial Use of Public Information (CUPI) they stress the importance of OPSI as a strong regulator. In order to increase standards across the wider public sector, OFT have recommended strengthening OPSI's regulatory role with the recommendation that it is resourced appropriately to deliver the benefits for the UK economy. In the light of recent practice, OPSI is publishing revised procedures. Following OFT's recommendations, a prime focus of OPSI's future work would be analysis of charges.

 

10. OPSI also has responsibility for investigating complaints made against Ordnance Survey and other public sector bodies under either or both IFTS and the PSI Regulations. The complaints investigations have been instrumental in driving up standards.

 

11. Operating within The National Archives, OPSI reports through to Ministry of Justice ministers. To that extent, OPSI differs from other arbitrators in that it is subject to ministerial control. In practice, however, this has not presented any difficulties and OPSI is perceived, both by the organisations we regulate and the industry as being a robust and effective regulator within the present remit.

 

Geographic Panel

 

Q3 What is your assessment of the UK Geographic Panel's operation since its introduction in 2005?

 

Q4 The Select Committee's predecessor, in recommending in 2002 that an advisory panel on geographic information should be created, suggested that it should have at least three members, including the Association for Geographical Information, OS and a private sector representative. Is the current panel's membership sufficiently balanced with three private sector representatives among its 12 members?

 

12. Although OPSI is aware of this Panel, it has no direct involvement and therefore has no observations or comments to offer on the activities of the Panel or its membership.

 

Q5 In a memorandum to the Committee during its recent enquiry into DCLG's Annual Report 2006, the Government said that the ending of NIMSA means "there is no distinction between public service and commercial activity". If that is the case, should the head of a commercially active organisation continue, ex officio, to be official adviser to Ministers on "all aspects of survey, mapping and geographic information"?

 

13. Tensions can arise from the boundaries between public service and commercial activities for government trading funds. As regulator, OPSI's independent assessment and monitoring, with published reports and action plans, are designed to address perceived tensions in any public sector monopoly.

 

Competition

 

Q6 Some OS competitors allege it is able to use its position as public sector information holder to compete unfairly, either by imposing over-stringent and costly licence conditions or by developing products of its own in direct competition with theirs but without the associated information licensing costs. There are further complaints that OS is an effective monopoly, preventing fair and transparent competition in the geographical information market. What is your view of these suggestions?

 

14. The complaint and verification report referred to in response to Question 1 highlighted OPSI concerns over onerous licence terms and conditions. Ordnance Survey has made progress in addressing these points. For example, Ordnance Survey has extended the length of licensing terms to provide to re-users the reassurance of continuity of supply and has also removed the non-compete clause which effectively barred licensees from competing in the same market as Ordnance Survey. OPSI also required Ordnance Survey to review its charges to ensure that where partners compete with the its own products, they are offered access for re-use to products on terms that are fair when compared to the terms that are offered to end users by Ordnance Survey's own operations. In working with Ordnance Survey to develop practical solutions, we have been able to facilitate a licensing framework which is generally acceptable to the industry. We do recognise, however, that there is still work to be done.

15. The OFT, in its CUPI report, also examined competition issues and Ordnance Survey in particular. We understand that the OFT are submitting evidence in response to the Committee.