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

Sun Dec 8 17:17:48 UTC 2013

Thanks everyone for your thoughtful responses to my question.

We clearly have some thinking ahead of us.

David

On Dec 8, 2013, at 6:11 AM, "Andrew Stott" <andrew.stott at dirdigeng.com<mailto:andrew.stott at dirdigeng.com>> wrote:

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-licensing/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<mailto: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<mailto: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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