Publication schemes

In addition to the duty to make datasets available in response to requests, there are also provisions about datasets in section 19 of FOIA, which deals with publication schemes. In general terms, your publication scheme must include a requirement to publish datasets and make them available for re-use:

(2A) A publication scheme must, in particular, include a requirement for the public authority concerned—

(a) to publish—

(i) any dataset held by the authority in relation to which a person makes a request for information to the authority, and

(ii) any up-dated version held by the authority of such a dataset,
unless the authority is satisfied that it is not appropriate for the dataset to be published,

(b) where reasonably practicable, to publish any dataset the authority publishes by virtue of paragraph (a) in an electronic form which is capable of re-use,

(c) subject to subsections (2AA) and (2AB), where any information in a dataset published by virtue of paragraph (a) is a relevant copyright work in relation to which the authority is the only owner, to make the information available for re-use in accordance with the terms of the specified licence.

(2AA) If the whole of the relevant copyright work is a document to which the Re-use of Public Sector Information Regulations 2015 apply, subsections

(2A)(c) and (2B) to (2F) do not apply to the relevant copyright work.

(2AB) If part of the relevant copyright work is a document to which those Regulations apply—

(a) subsections (2A)(c) and (2B) to (2F) do not apply to that part, but

(b) those provisions do apply to the part to which the Regulations do not apply (and references in the following provisions of this section to the relevant copyright work are to be read as references to that part).

Under section 19(1)(b) of FOIA, you must publish information in accordance with your publication scheme. The requirement in section 19(2A)(a) to include datasets is in line with the open data aim of encouraging public authorities to make datasets routinely available, not just by request. However, this requirement is qualified in that you do not have to publish a dataset as part of your publication scheme if you are satisfied that it is “not appropriate” to do so.

The scope of this requirement is potentially very wide. Under section 19(2A)(a)(i) it applies not only to datasets that you have actually released under FOIA, but to any requested dataset. You must also publish any updated version of the dataset that you actually hold. However, you do not have to publish a dataset as part of your publication scheme if you are satisfied that it is “not appropriate” to do so.

Not appropriate

You therefore have to decide if it is appropriate to publish a requested dataset and any updated versions. The dataset provisions do not define the term “not appropriate”. However, there are several factors that may assist in making this decision.

As noted above, the requirement extends to datasets that have been requested, not just those you have released. In some cases, you may have refused the request because the information was exempt from disclosure. You could use this as a good reason for concluding it’s not appropriate to publish this dataset, if the exemption still applied. However, you should be aware that a decision not to disclose information in response to a request is a decision you take at a point in time. In the future, circumstances may change meaning you can publish the information.

It’s possible that a request only covers a very narrow area of information. The requester is entitled to ask for this and to receive it unless it is exempt. However, there may be no real benefit in terms of promoting transparency in routinely publishing such a narrow dataset. The information may give a partial or even misleading impression, as opposed to more comprehensive and informative datasets that you routinely publish. On the other hand, if you receive multiple requests for a particular dataset, this might indicate that it’s appropriate to make it routinely available.

Other relevant factors when deciding if it is appropriate to publish a dataset include the cost or the technical issues involved.

In deciding whether it is appropriate to publish a dataset under your publication scheme, you should also consider the public interest in transparency and accountability. This is recognised in section 19(3) of FOIA:

(3) In adopting or reviewing a publication scheme, a public authority shall have regard to the public interest—
(a) in allowing public access to information held by the authority, and
(b) in the publication of reasons for decisions made by the authority.

Section 19(2A)(a)(ii) extends the requirement to “any updated version held by the authority of such a dataset”. This does not mean that once you’ve published a dataset under your publication scheme, you’re required to keep it updated purely for the purposes of the publication scheme. However, if you actually hold an updated version of the dataset that you have published, then you are required to publish the updated version. The dataset provisions do not say anything about how frequently you should update the published version. This is determined by what you actually hold. The requirement to publish updated versions is also limited by the “not appropriate” qualification, as the following example shows.

When publishing datasets as part of a publication scheme, you must publish them in a re-usable form where reasonably practicable.

If the dataset in the publication scheme is covered by the RPSI, then you must deal with licensing it for re-use and any re-use charges under the RPSI. This is the effect of sections 19(2AA) and (2AB). If it is not covered by the RPSI, then you must deal with it under FOIA, under the terms of section 19(2A). You must make datasets that are relevant copyright works available under the terms of a specified licence. You may charge a fee for re-use of datasets in a publication scheme. The provisions about licensing and fees in section 19(2A) reflect those in section 11A, about making datasets available in response to requests. The defined terms in section 19 (eg “relevant copyright work”) have the same meaning as in section 11A.

Model publication scheme

The dataset provisions in section 19 are framed in terms of publishing datasets requested under FOIA. They do not make any reference to other datasets that have not been requested or introduce any requirement as to what other datasets you should routinely publish.

To meet their duty to have a publication scheme, most (if not all) public authorities will use our model publication scheme This is supported by a series of definition documents for the main sectors and template guides to information for smaller authorities. These set out the types of information that we would expect public authorities to publish routinely.

Our guidance on Publication schemes provides more information. It links to the model scheme, the definitions documents and the template guides.