UK: Freedom of Information - Will Public Authorities Be Able to Copy Copyright Documents When Responding to Requests?

Last Updated: 7 July 2004

Article by Richard Best, Ashurst*

The Freedom of Information Act ("FOIA") was enacted in November 2000. However, its most important provision - the personal right of access to information held by public authorities - does not come into force until January 2005. When that day comes the current non-statutory rules on access to publicly held information, contained in the Code of Practice on Access to Government Information, will be replaced by a far-reaching and comprehensive statutory regime. Information is defined broadly ("information recorded in any form") and requests may be made to public authorities by individuals, companies and even those living abroad. Companies dealing with or otherwise providing information to public authorities may be affected by the changes to the extent that:

  • they have broader and enforceable information access rights under the Act; and
  • other people may request and sometimes obtain, for example, commercially sensitive information originally supplied by, or otherwise affecting, those companies.

The purpose of this note is to comment briefly on the question of copyright.(1) Specifically, can a public authority, when responding to an information request, make a copy of documents supplied to it by a third party (assuming no exemptions to disclosure apply) if those documents are subject to copyright protection?

FOIA itself contains no provision regarding questions of copyright. However, the Copyright, Designs and Patents Act 1988 ("CDPA") provides that the doing of acts "specifically authorised by an Act of Parliament" does not infringe copyright (section 50(1)). If applicable to FOIA disclosures, copying a document for the purpose of responding to an information request would not infringe copyright. (This protection would only extend to actions on the part of public authorities; it would not extend to actions by persons receiving documents from a public authority.)

It has been assumed by many that a public authority's copying of an otherwise copyright protected document for disclosure to a party making a request under FOIA would not, given section 50(1) of the CDPA, infringe copyright. In other words, it has been assumed that such disclosure would be specifically authorised by FOIA. This seems to be a sensible position and, in the author's view, one which Parliament probably intended (an issue on which the Parliamentary debates may shed further light).(2)

However, this particular issue has been the subject of debate recently in "JISCmail", an online mailing forum sponsored by the Joint Information Systems Committee for the UK Higher and Further Education communities. In a mail posted on the site on 24 June 2004, a Copyright Officer, of the Secretary of the Lord Chancellor's Advisory Council on National Records and Archives, wrote that government lawyers have concluded that the supply of a copy of a copyright document in response to a FOIA request could infringe copyright.(3) He states that "official guidance will be published on the issue in due course". It is reported that the view of government lawyers in the Department for Constitutional Affairs and DTI is that FOIA does not "specifically authorise" such copying; rather, it only authorises the supply of information. At its essence, the argument goes that if making a copy would breach copyright, then the information must be supplied in another form (such as a summary or paraphrasing of the original or an opportunity for inspection).

In the author's view this would be an unsatisfactory and inefficient way for requests under FOIA to be handled, as a matter of course in cases where copyright is an issue. It is likely to be commonplace that documents supplied to public authorities by third parties are subject to copyright. If public authorities faced with requests for such documents, in respect of which no exemptions to disclosure apply, feel obliged to provide summaries or paraphrased responses, their handling of requests will in all likelihood take longer and be prone to human error. Summaries, for example, might miss aspects of information which requestors consider important. Certain items of information may be subject to various interpretations. Spins might be put on certain information. Some data may simply not be capable of summary.

Arguably none of these potential consequences is desirable. Summaries or paraphrased responses may be necessary in certain specific cases, but they are not desirable as a matter of course. Where a public authority is obliged to disclose information pursuant to a request, there is much to be said for providing the document itself (where the information takes this form).

How robust is the apparent view of government lawyers referred to above? One needs to await the official guidance said to be forthcoming before commenting fully but some preliminary remarks can be made. The right of access to information in section 1 of FOIA imposes a correlative duty on public authorities to provide information (unless one or more of the exemptions to disclosure apply). Information is defined as "information recorded in any form" (section 84) and it is "information" that can be requested and which must, absent an exemption, be provided. Providing a copy will often be the simplest and most reliable form of compliance. But section 11(1) of the Act may come into play and muddy the waters. It concerns the means by which disclosures are to be made and states that where an application expresses a preference for communication by one of various listed means, "the public authority shall so far as reasonably practicable give effect to that preference". One of the listed means is "the provision to the applicant of a copy of the information in permanent form". One might argue that this specifically authorises the making of a copy of copyright material but the government lawyers' view is said to be that such an act is not "reasonably practicable" because it would breach copyright.(4) It is arguable, however, that the words "reasonably practicable" are really concerned with administrative or operational issues affecting the particular public authority and do not contemplate questions such as copyright (although admittedly section 11(2) does allow the authority to have regard to "all the circumstances" in determining what is reasonably practicable). If the words "reasonably practicable" do not contemplate copyright issues, then arguably compliance with FOIA will often positively require the making of a copy. "Specific authorisation" in terms of section 50(1) CDPA would be inherent in the statutory framework. Statutory compulsion assumes authorisation.

Ultimately, while it is certainly arguable that FOIA does specifically authorise the copying of copyright documents for the purpose of complying with information requests and while it is likely that this was Parliament's intention (5), regrettably the statutory framework could be clearer. If the view of government lawyers noted above is indeed an overall or even principal "Government view" and does come to be embodied in official guidance, then there will be many who hope that the issue is reconsidered and resolved before January 2005, if necessary by Parliament and statutory amendment. If not properly resolved, disputes over the issue are bound to arise and public authorities may have difficulty in complying with the Act.


* The views in this article are those of the author and do not necessarily reflect those of the firm.

(1) A guide to the Act generally and its commercial implications is available from Ashurst on request.

(2) The author has not yet researched the Parliamentary debates on this issue, but for one relevant excerpt of the debates, see an online posting from Maurice Frankel of the Campaign for Freedom of Information on 24 June 2004 at

(3) See

(4) See note 3 above.

(5) See note 2 above.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions