[od-discuss] Provincial and Game OGLs; Open Definition 2.0

Sun Dec 8 14:11:23 UTC 2013

I agree with the interpretation of the UK licence by Herb and Kent.  

As Kent suggests, the intent is to exclude information whose disclosure was
unauthorised.  As Herb says, it is a test of the fact of release, not of
interpretation of legislation.  I suspect that it is needed here partly
because of the standing offer to license almost all Crown Copyright material
under the OGL-UK [1], including information published or disclosed on other
terms before the OGL was introduced.

I also consider that Kent's construction of the clause is the right one -
the alternatives are "published" or "disclosed under information access
information".  Although the UK FOI Act provides for "publication schemes",
most published information is published without the specific authority of
the FOI Act - indeed there have been cases, such as the COINS database,
where data has been published as an act of policy even though access to it
had previously been *refused* under the FOI Act.

In the UK "information access legislation" is not just the Freedom of
Information Acts: there are other rights to information, for instance under
the Environmental Information Regulations [2].

[1]
http://www.nationalarchives.gov.uk/information-management/government-licensi
ng/what-ogl-covers.htm

[2] http://www.ico.org.uk/for_organisations/environmental_information

From: od-discuss [mailto:od-discuss-bounces at lists.okfn.org] On Behalf Of
Herb Lainchbury
Sent: 08 December 2013 01:25
To: Kent Mewhort
Cc: od-discuss at lists.okfn.org
Subject: Re: [od-discuss] Provincial and Game OGLs; Open Definition 2.0

My interpretation of the UK license is the same as Kent's.  I sympathise
with the BC folks (being one myself) but I think this is an important
difference between the UK clause and the BC clause.

To me it only became clear when I broke the two clauses down into their
simpler forms.

First the UK clause:

original version: "information that has neither been published nor disclosed
under information access legislation (including the Freedom of Information
Acts for the UK and Scotland) by or with the consent of the Information
Provider;"

simpler version 1 (replacing the legislation names with simply "the
legislation"): "information that has neither been published nor disclosed
under the legislation by or with the consent of the provider"

simpler version 2 (replacing "neither been published nor disclosed" with
"not been published", and "by or with the consent" with simply "by"):
"information that has not been published under the legislation by the
provider"

so, basically, to me it reads as:

"information that has not been published under the legislation by the
publisher is excluded"

Now the BC clause:

original verison: "Information or Records not accessible under the Freedom
of Information and Protection of Privacy Act (B.C.);"

simpler version 1 (replace information or records with just "information"
and the name of the legislation with "the legislation"): "information not
accessible under the legislation"

so, in it's simpler form, this one reads:

"information not accessible under the legislation is excluded"

I think the big difference here is that with the UK version, we don't have
to understand the legislation to determine if a work is exempt, it just has
to be published (or disclosed) under the legislation. But, simply because of
the differnece in the current wording, with the BC clause, we do need to dig
into the legislation.  At least that's how I, as a lay user would interpret
it.

One suggestion might be for BC to reword their clause to be like the UK
license.

i.e. modifying the original BC clause it could be: "information that has
neither been published nor disclosed under the Freedom of Information and
Protection of Privacy Act (B.C.);"

I don't  know what others think but for me right now I think that could make
a difference.

Herb

On Sat, Dec 7, 2013 at 4:53 AM, Kent Mewhort <kent at openissues.ca> wrote:

Interesting....my first take on the U.K. provision is that the license is
inclusive of information that's either "published", or that's "disclosed
under information access legislation".  I interpret the clause-break this
this way largely because information is not generally "published...under
information access legislation", it's only disclosed.  Thus, if information
is even placed online through an open data portal, this would be publication
and easily fit the first criterion -- without the need to be disclosed under
information access legislation.  If my interpretation is correct, the
purpose of this clause is merely to make it clear that unpublished,
nondislosed information leaks are not licensed. 

What do others think? This clause could certainly be interpreted differently
and I'm not certain of the intention of the drafters.

By the way, I should also mention that there could be other interpretations
of the issues I raised with respect to the interaction between the BC OGL
and BC FIPPA.  This, however, is in my opinion one of key problems of the
license.  I think the broad stroke of bringing in BC FIPPA with a one-liner
in the BC OGL leaves a lot of guesswork and legal uncertainty of how the two
interact.  I can barely make heads or tails of the nuanced interactions, and
I'm a lawyer with quite a bit of experience with licenses and also some
experience with Canadian FOI legislation.  There's no way that most users
are going to be able to figure out for certain what's exempt, what's not,
and what could become exempt in the future.

Kent

[snip]

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