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ePSIplus National Meeting London, Tuesday 30th October 2007

ePSIplus National Meeting London, Tuesday 30th October 2007. Legal and Regulatory Process and Impact Peter Wienand Partner, Farrer & Co LLP, Solicitors Deputy Chair, APPSI. Directive 2003/98/EC Art 12:

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ePSIplus National Meeting London, Tuesday 30th October 2007

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  1. ePSIplus National MeetingLondon, Tuesday 30th October 2007 Legal and Regulatory Process and Impact Peter Wienand Partner, Farrer & Co LLP, Solicitors Deputy Chair, APPSI

  2. Directive 2003/98/EC • Art 12: • “Member States shall bring into force the laws, regulations and administrative provisions necessary to cmply with this Directive • Implemented by SI 2005 No 1515 – The Re-Use of Public Sector Information Regulations 2005 • Three tier complaints process: • Reg 17: internal complaints procedure • Regs 18 and 19: complaints referred to OPSI • Regs 20 and 21: requests for review by APPSI • Complaint goes direct to APPSI if about OPSI

  3. APPSI recommendations (responses to the RIAs): • “a simple and cost-effective means of redress in the event of non-compliance” • independence • effectiveness • low cost • speed • alternative to litigation • . . . against the background of mildly favouring a voluntary model as opposed to establishing a new dedicated regulator

  4. APPSI wanted the following kept under close review: • whether the non-binding nature of the Panel’s determinations is a factor dissuading applicants from appealing to it; • the overall level of demand for any dispute resolution process; • the convergence, or divergence, in the origins and treatment of disputes arising under the various different strands of information regulation, notably FOI, EIR, PSI and data protection. [APPSI response to 2nd RIA]

  5. Current structure: • OPSI procedures: • First version published 16 June 2005 • Revised version published 31 July 2007 • APPSI procedures • First version published 30 June 2005 • Second version currently being prepared • MoU between OPSI and the OFT and Protocols with the ICO and Scottish Information Commissioner

  6. Current structure: • OPSI procedures – new sanctions: • revocation of delegation of authority • divestment of refined information operation • Note: • recommendations (both of OPSI and APPSI) are published; • although OPSI will not investigate if a matter is before the courts, its recommendations and the parties’ submissions may be used as evidence in subsequent actions

  7. Recourse to courts • APPSI stressed that this should always remain open – ie using the complaints process under the Re-use Regs should be without prejudice to court action: • Fact-intensive, high value cases • Other issues (competition law, IPR infringement) • Community law requirement for effective remedies • Basis? • Judicial review • Breach of statutory duty or stand-alone cause of action? • Relationship with complaints procedure

  8. Lessons learnt • Need for tighter procedures • Difficulty of avoiding legal analysis • Difficulty of interpreting some of substantive provisions • Need for APPSI role? • Mediation: • “The Government should reconsider (a) whether an ADR process for PSI disputes can be accommodated within the Regulations” [Review Board: IA / OS complaint] • Clarity as to roles of OPSI, OFT, ICO essential

  9. Substantive provisions (1) • ‘Public task’ • “Ideally, each public sector body should, in fulfilling the general aspiration towards transparency, be required to make clear to potential re-users which of its activities are its public tasks (the Panel acknowledges that this may be harder for some public sector bodies than others)” [APPSI response to 2nd RIA] • “the Board recommends that the Best Practice Guide be reviewed and amended to clarify the concept of ‘public task’, following appropriate consultation with relevant Government departments, and that each trading fund should then produce and publish a statement of scope of its public task consistent with such an amended Best Practice Guide” [Review Board: IA / OS complaint]

  10. Substantive provisions (2) • Third party IPRs (belonging to other PSBs?) • ‘Documents’ • Charging • double recovery not explicitly ruled out • cross-subsidy not ruled out: do recoverable costs relate only to the specific document(s) in question (ie actually the subject of the re-use request), or to the costs of all documents produced by the PSB? • costs incurred by other PSBs involved in collecting or producing documents at some previous date? • reasonable rate of return – might usefully be clarified • marginal cost pricing?

  11. ePSIplus National MeetingLondon, Tuesday 30th October 2007 Legal and Regulatory Process and Impact Peter Wienand Partner, Farrer & Co LLP, Solicitors Deputy Chair, APPSI

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