European Communities (Re-Use of Public Sector Information) Regulations, 2005

• Jurisdiction: Ireland
• Citation: IR SI 279/2005
• Year: 2005

STATUTORY INSTRUMENT
S. I. No 279 of 2005
European Communities (Re-Use of Public Sector Information Regulations 2005
European Communities (Re-Use of Public Sector Information) Regulations 2005
Regulation
1. Citation and commencement 2. Interpretation 3. Limit on application, etc. 4. Obligation to supply information to Minister 5. Release of documents 6. Charging for re-use of documents 7. Transparency 8. Licensing 9. Restriction on grant of exclusive rights 10. Appeals 11. Appointment of Appeal Commissioner 12. Review of decision by Appeal Commissioner 13. Request for further information 14. Powers of Appeal Commissioner 15. Appeal to High Court 16. Precautions by Court and Appeal Commissioner against disclosure of certain information
European Communities (Re-Use of Public Sector Information) Regulations 2005.
I, Brian Cowen, T.D., Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ), and for the purpose of giving effect to Directive 2003/98/EC of the European Parliament and of the Council of 17 November 20031 , hereby make the following regulations:
	Citation and commencement	1. (1) These Regulations may be cited as the European Communities (Re-Use of Public Sector Information) Regulations 2005.
(2) These Regulations come into operation on 1 July 2005.
	Interpretation	2. (1) In these Regulations—
“Appeal Commissioner” means a person appointed as such under Regulation 11;
“body governed by public law” means a body, having legal personality, established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and financed for the most part by one or more of the following:
(a) the State;
(b) a regional authority;
(c) a local authority;
(d) any other body governed by public law;
(e) a body that is subject to management supervision by one or more than one body referred to in paragraphs (a), (b), (c) and (d);
(f) a body having an administrative, managerial or supervisory board, more than half of whose members are appointed by one or more than one body referred to in paragraphs (a), (b), (c) and (d);
“Directive” means Directive 2003/98/EC of the European Parliament and of the Council of 17 November 20031 ;
“document” means all or part of any form of document, record or data, whether in physical, electronic or other form and includes—
(a) any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work,
(b) any photograph, and
(c) any sound, visual or audio-visual recording;
“functions” includes powers and duties and references to the performance of functions includes, as respects powers and duties, references to the exercise of functions and the carrying out of duties;
“local authority” means a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001);
“Minister” means the Minister for Finance;
“personal data” has the same meaning as it has in the Data Protection Acts 1988 and 2003;
“public sector body” means—
(a) the State,
(b) a regional authority,
(c) a local authority,
(d) an other body governed by public law , or
(e) an association formed by one or several bodies or associations referred to in this definition,
“regional authority” means a body established in accordance with section 43 of the Local Government Act 1991 ( No. 11 of 1991 );
“requester”, in relation to a request for the release for re-use of a document pursuant to these Regulations, means the person making the request;
“re-use”, in relation to a document held by a public sector body, means the use by an individual or legal entity of the document for commercial or non-commercial purposes other than the initial purpose within the public task for which the document was produced, but does not include the exchange of such document between public sector bodies solely for the purpose of performing their functions.
(2) In these Regulations, unless otherwise indicated —
(a) a reference to a Regulation is a reference to a Regulation of these Regulations,
(b) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs.
(3) A word or expression that is used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Directive.
	Limit on application, etc.	3. (1) These Regulations do not apply to—
(a) documents, the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as provided for—
(i) by law, or
(ii) otherwise in accordance with common administrative practice.
(b) documents in respect of which third parties hold intellectual property rights;
(c) documents that could be excluded from access under the Freedom of Information Acts 1997 and 2003, other than documents to which section 46(2) of the Freedom of Information Act 1997 (No. 13 of 1997) applies;
(d) documents held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit;
(e) documents held by educational and research establishments, including schools, universities, archives, libraries and research facilities and, where relevant, organisations established for the transfer of research results;
(f) documents held by cultural establishments, including museums, libraries archives, orchestras and establishments for the performing arts.
(2) Nothing in these Regulations shall be read as—
(a) affecting any right or function under the Data Protection Acts 1988 and 2003,
(b) permitting the release of information by a public sector body in a manner that is prohibited by law, or
(c) requiring the release of information that is legally privileged.
(3) The obligations imposed by these Regulations apply only in so far as they are compatible with the provisions of international agreements on the protection of intellectual property rights, in particular the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
	Obligation to supply information to Minister	4. (1) A public sector body shall supply the Minister with—
(a) in relation to documents made available by the public sector body for re-use, information relating to those documents, and
(b) such other information as the Minister may, from time to time, require for the purpose of enabling him or her to take all reasonable steps to ensure that practical arrangements are in place to facilitate a search for documents available for re-use
(2) A public sector body shall comply with any other request from the Minister for information that may, from time to time, be made for the purposes of these Regulations or the Directive.
(3) Information provided under this Regulation shall be in such format as the Minister may specify.
	Release of documents	5. (1) (a) An individual or a legal entity may make a request in a legible form to a public sector body to release documents for re-use.
(b) Every request under subparagraph (a) shall clearly indicate that it is being made for the purpose of the re-use of public sector information.
(c) Every request made in a language other than Irish or English shall be accompanied by a translation of the request into Irish or English.
(2) Subject to paragraph (3), nothing in these Regulations obliges any public sector body to release documents for re-use.
(3) (a) Where a public sector body decides to make a document available for re-use, then the body shall, consequent on a request from a requester—
(i) process the request and deliver the documents for re-use to the requester, or
(ii) if necessary, finalise the offer of a licence to the requester,
within—
(I) 40 working days from receipt of the request, if the request is extensive or complex, or
(II) 20 working days from receipt of that request in any other case.
(b) Where processing the request and delivering the documents concerned to the requester will exceed, or is likely to exceed, 20 working days from receipt of the request, then the public sector body concerned shall advise the requester accordingly within 3 weeks after the initial request was received.
(c) Nothing in this paragraph shall affect the granting, in accordance with Regulation 9, of an exclusive right to re-use a document where such grant is necessary for the provision of a service in the public interest.
(4) (a) Where a request under this Regulation is refused by a public sector body, it shall communicate the grounds of the refusal to the requester in particular and where appropriate by reference to the matters contained in subparagraph (a), (b) or (c) of Regulation 3(1) or paragraph (2) of this Regulation.
(b) Where the refusal is based on the intellectual property rights of a third party, the public sector body concerned shall include in the communication of the refusal to the requester a reference to the third party, where known, or alternatively to the licensor from which the public sector body has obtained the relevant material.
(5) (a) Where a public sector body makes a document available for re-use it shall make the document available in any pre-existing format or language, including through electronic means, where possible and appropriate.
(b) Nothing in these Regulations requires a public sector body—
(i) to create or adapt any document in order to comply with a request,
(ii) to provide extracts from documents where this would involve disproportionate effort, going beyond a simple operation,
(iii) to continue the production...