Justice CommitteeWritten evidence from Lord Lucas

1. Executive Summary

(a)The Information Commissioner should be better able to influence how datasets are priced under FoI and publication schemes. Current arrangements allow public authorities to use pricing to unreasonably restrict access and thereby limit access to information and the growth of new businesses.

(b)UCAS’s use of publication schemes to extinguish free FoI access needs dealing with.

2. My Experience of FoI

(a)I am an active backbench Conservative peer, and have made occasional use of FoI in that context; much greater use has been made by groups that I chair or are otherwise associated with, such as the London Motorists Action Group. I make considerable personal use of FoI in my commercial life as editor of The Good Schools Guide.

(b)As a user, I am broadly content with the workings of the act. I have pursued an appeal to the Commissioner and won (and also similarly in Scotland). Much patience was required, over several years (a faster system would be welcome) but the eventual judgement was careful and fair, and the Commissioner has been quick to enforce it subsequently. As a politician, I am in agreement with the Campaign for Freedom of Information in the improvements that they seek.

3. Payment for Data which is Intended for Commercial Re-use

(a)Part 6 of The Protection of Freedoms Bill proposes to amend the FOI Act, introducing new provisions facilitating access to, and the reuse of, datasets. These also specifically provide that a fee may be charged for the reuse of information.

(b)I approve of this. Why should I not share my revenue with the public bodies which have made it possible?

4. How much should be Paid for Data?

(a)The more that is charged, the more access is denied and use prevented. To offer three examples from my experience:

(i)I currently obtain datasets under FoI from individual UK universities (UCAS and HESA have refused to supply). These are dirty and often presented in inconvenient formats; they take a lot of work to make useable. If I had to pay even the marginal cost of providing me with the data that would be a substantial barrier to my building a business in the university information area.

(ii)I asked HESA for four simple datasets; they quoted £4,000 for them—well above their utility to me, and ten or twenty times their marginal cost.

(iii)I would have a use for the house price data that the Land Registry collects—but not £40,000 per annum worth of use, which is the minimum price for the data I would need.

(b)Pricing information highly reduces the use made of it and raises barriers to the creation of new businesses, other than by the well-financed. On the other hand, pricing it cheaply means that businesses using the data may not be paying a fair price for it. I do not have an easy formula to offer, but this is a familiar problem in commerce and one that I wrestle with myself; a licence based on the number of users and the proposed use is a common solution in my world.

(c)In any event, I think that the Information Commissioner should be allowed to review publication schemes, even after they have been approved, to check that they measure up to a set of principles. Under the exemption in s.21 of the FoI Act, a public authority can refuse to supply information under FoI terms if it is reasonably accessible to the applicant other than by means of an FoI request. Section 21(3) provides that this applies even if the authority charges for the information—but only if the fee, or means by which the fee will be calculated, is specified in the authority’s publication scheme.

(d)I suggest that the principles that publication schemes should measure up to might be:

(i)If a public body wishes to charge more than the marginal cost of production for any dataset, then it must justify that charge in terms of the commercial value of the dataset to the user in question and the desirability of encouraging the commercial re-use of public data.

5. UCAS’s Coach and Horses

(a)In their refusal of a recent FoI request from me, UCAS said:

(i)“UCAS also considers that, even if data protection concerns did not prevent it from disclosing the information you have requested, your request would in any event have been refused on the basis of exemption s.21 (Information available by other means). Should it be possible to devise analysis specification which sufficiently minimises the risks of disclosure, this service is available from UCAS Media Ltd who offers a bespoke data analysis service as described in the UCAS Freedom of Information Act Publication Scheme ‘Guide to Information’ at http://www.ucas.com/about_us/foi/guidetoinformation/services (at the link ‘Statistical Services FAQs’)”.

(b)In other words, UCAS will never have to disclose data on FoI terms, because if it is disclosable under FoI then it comes under the publication scheme.

(c)The minimum charge under the publication scheme is £200.

(d)If this formula was adopted by all public bodies then that would be an end to free information under FoI.

(e)In any event, UCAS’s exploit emphasises the importance of getting the pricing of publication scheme datasets right.

January 2012

Prepared 25th July 2012