Right to Government Data… unless it’s been outsourced

The UK’s coalition government has followed up on its promises of a general Right To Public Data, with sweeping and fast-moving measures to open up whole sectors of public sector information, from the salaries of senior civil servants to spending by local councils.

For those who attended the pre-election Post-Bureaucratic Age (PBA) conference (which was heavily populated by Conservative thinkers), this is not such a surprise, and it’s also worth acknowledging the steps the previous government took – principally making the decision to open up Ordnance Survey data.

But, there’s one thing that nobody’s talking about, and significantly it’s a question that was asked (but ducked) at the final PBA panel: what about government data that happens to be held by the private sector, principally information that’s been outsourced?

Now lest anyone think this is nitpicking here, we’re not talking about the odd dataset here and there – whole areas of government work, both national and local, have been outsourced to the private sector, including the almost the complete frontline services for some councils.

The problem with this – as far as information goes – is that private sector companies aren’t covered by the same regulations as public sector bodies. They aren’t, for example, subject to FoI requests, even if they are doing the work that would have been done by the private sector (actually it’s much worse than this: even if companies are 90% owned by a public body they are not subject to FoI requests, nor, currently are Joint Ventures between public bodies).

The same problem looks likely to afflict the right to data, with no Right To Data held by private companies (or JVs) on behalf of public bodies.

[I should state here, that I’m no fan of outsourcing – buying services as a commodity, yes; outsourcing no – for more on this see my presentation Open Data & The Rewards of Failure. Too often it’s an unequal balance, with the contractor knowing way more than the purchaser, and often is carried out by companies just as bureaucratic as public bodies.]

A current example

Enough about the generalities. Let’s look at a specific case – one that was raised at the EPSI conference in Madrid last week, by Jose L. Marin from Euroalert. Turns out they’d been trying to get access to the information from the Supply2.gov.uk government tender portal, which is run on behalf of the Department for Business, Innovation and Skills (BIS) by BiP Solutions. In fact, according the the website, BiP Solutions are [merely] the service provider for the Supply2.gov.uk portal and are… responsible for its development, support and maintenance.

There’s clearly a case for making this information as widely available as possible, as you want the public bodies to have as good a choice as possible.

However, despite their best efforts, Euralert have not had any luck getting access to the data. They’d even enlisted the help of the good people from OPSI, who are tasked with facilitating access to public data. But even this didn’t work, as last week they received an email from OPSI, with this response from BIS.

As you are aware, both BIS and BiP have refused Mr. Marin’s request. There are both policy and commercial reasons why this decision has been made.

It is BIS’ view that the Re-use of Public Sector Information Regulations 2005 are not applicable in the circumstances. The information which Mr. Marin is seeking is not “held by a public sector body” as required by Regulation 4; BIS is a public sector body, but does not hold the information, BiP holds the information, but is not a public sector body. Furthermore, Regulation 7 makes it clear that decisions on re-use are a discretionary matter for the public sector body concerned. In the event that we considered that the Regulations did apply, we would nonetheless have still decided not to permit the re-use Mr. Marin requests for policy and commercial reasons.

In the alternative, if Mr. Marin considers that the information on Supply2Gov is held by the public sector bodies which placed the contract opportunities on the site, then the request for re-use in relation to each contract opportunity should be made to the public sector body concerned, not to BIS, which does not hold the information.

There’s something rather patronising and condescending about this response that I find quite appalling. In short, we don’t want you to have the data, and because it’s held by a private company there’s nothing you can do about it, and frankly you wouldn’t understand the reasons even if we could be bothered to tell you. In other words (and in the immortal words of the French soldier from Monty Python & The Holy Grail): ‘I fart in your general direction.‘

It seems clear to me that if the coalition is genuinely committed to open data, it will stamp out this sort of thing immediately – it’s a concern that the letter was sent post-election, and from a department headed by Liberal Democratic Vince Cable.

But whichever way it goes, make no mistake, if we don’t get the right to reuse public data that has been outsourced to the private sector, we will not only be missing out on the benefits of open data, but I suspect we will also see the most politically embarrassing data being outsourced just to hide it from public view.

Update: Just as I finished writing this I saw via Twitter that the Office of Government Commerce was being taken away from the BIS and moved to the Cabinet Office, home to many of the best people in the UK Government helping open up data. Given that the OGC is responsible for tendering/procurement it ‘s to be hoped that not only does Supply2.gov.uk go with it, it gets opened up as part of the Cabinet Office’s opendata work.