Memorandum by the Office of Public Sector
Information
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
Q1 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.
LIST OF
ANNEXES[3]
Annex A: OPSI re-verification report on
Ordnance Survey, October 2005
Annex B: Ordnance Survey response to the
re-verification report
Annex C: OPSI investigation of a complaint
brought by intelligent Addressing
Annex D: APPSI review of the OSPI investigation
into the Intelligent Addressing complaint
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