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.
References
* 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 http://www.jiscmail.ac.uk/cgi-bin/webadmin?A2=ind0406&L=freedom-of-information&P=15417
(4) See note 3 above.
(5) See note 2 above.
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